In an attempt to garner support from House Republicans following last week’s release of draft legislation to reauthorize the Pipeline Safety Act (PSA), Democrats on the House Energy and Commerce Committee released a more bipartisan version, The Safer Pipelines Act of 2019, H.R. 3432. The revised bill was subsequently approved by a House Energy and Commerce subcommittee and heads to the full committee for consideration and mark-up. At a minimum, it appears that legislators in the House are working towards issuing a bill prior to the August recess and reauthorization deadline of September 30, 2019. The revisions to the House pipeline safety seem designed to make a more palatable bill for the Senate as it contains some significant proposed changes from the prior discussion draft that was the subject of a contentious hearing in the House.

Provisions Omitted

H.R. 3432 does not include the following provisions that appeared in the earlier discussion draft put forward by the Democrats:  the expansion of gathering pipeline regulation; the phasing out of direct assessment; reference to “automatic spill detection” requirements; and, elimination of the MAOP grandfather clause for gas transmission pipelines as well as establishment of spike test requirements for all gas transmission pipelines. Related to gathering pipelines, PHMSA and its Gas Pipeline Technical Advisory Committee (GPAC) convened meetings in the last week of June regarding a pending (and previously mandated) proposed rulemaking that would increase regulation of gas gathering pipelines to include reporting requirements for all gathering pipelines and regulate an additional 25,000 miles of gas gathering pipelines.

Provisions Remaining

With respect to provisions that H.R. 3432 retained from the Democrats discussion draft, the following provisions remain relatively intact:  elimination of cost-benefit analysis (Section 3); requiring submission of Safety-Related Condition Reports to state and local authorities (Section 3); Information sharing/public awareness, including community right to know and emergency preparedness provisions (Section 5); clarifying the mandamus action/citizen suit provision (Section 6); removal of the cap on civil penalties (Section 7), and revision of the criminal standard to “knowingly or recklessly” (Section 8). Notably, Republicans on the Energy and Commerce Committee continue to take issue with the proposals to revise the citizen suit provision and the criminal standard.

Provisions Added or Revised

Several provisions were added or significantly revised from the discussion draft, as a result of further bipartisan discussion, including:  a requirement that PHMSA issue rules that prioritize other methods of inspection over direct assessment (Section 4); a requirement that PHMSA study the methods of inspection of distribution pipelines other than direct assessment and that be reported to the House and the Senate (Section 4); a requirement that automatic shutoff valves on transmission pipelines in high consequence areas be based on risk assessment “as appropriate” (not as mandatory) (Section 4). During the markup this week, both Committee Republicans and Democrats put forward amendments to H.R. 3432 that were ultimately withdrawn, including provisions from DOT’s proposed legislation and the Leonel Rondon Pipeline Safety Act, HR 2139.

This is the third legislative proposal for PSA reauthorization, preceded by the Leonel Rondon Pipeline Safety Act, HR 2139/S. 1097 (April) and DOT’s Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2019 (early June). The first bill referenced now appears to be abandoned, and DOT’s proposal will likely be considered during Senate or Conference Committee discussions. The deadline to reauthorize the PSA and continue funding PHMSA expires on September 30, 2019, and it appears that there is bipartisan legislative commitment on behalf of both Republicans and Democrats to meet that deadline.

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Photo of Catherine D. Little Catherine D. Little

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and…

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and administrative adjudication under the Pipeline Safety Act, Natural Gas Act, Clean Water Act (including wetlands), Oil Pollution Act and National Environmental Policy Act. Her team has sought appellate review for enforcement matters with favorable results and works closely with industry and regulators alike to obtain favorable results for their clients. Catherine also regularly counsels clients with respect to pipeline construction and design issues, permitting, confidential investigations, spill and release reporting and response.

Photo of Annie M. Cook Annie M. Cook

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean…

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean Water Act, the Oil Pollution Act, National Environment Policy Act, TCSA, and related state and local laws.  Her team also represents clients regarding related transportation security issues and in responding to inquiries and investigations from the Department of Transportation’s Office of Inspector General.. Annie’s clients include owners and operators of oil and natural gas pipeline and related storage, terminal, and LNG facilities as well as other energy industry stakeholders.

Photo of Robert E. Hogfoss Robert E. Hogfoss

Bob Hogfoss has been counseling clients on compliance issues, litigation and enforcement defense, administrative adjudication and environmental litigation for over 30 years. Bob’s practice focuses exclusively on energy, environmental and administrative law, with emphasis on Pipeline Safety Act, Clean Water Act, Oil Pollution…

Bob Hogfoss has been counseling clients on compliance issues, litigation and enforcement defense, administrative adjudication and environmental litigation for over 30 years. Bob’s practice focuses exclusively on energy, environmental and administrative law, with emphasis on Pipeline Safety Act, Clean Water Act, Oil Pollution Act, National Environment Policy Act, RCRA, CERCLA and TSCA issues. His clients include oil and natural gas pipelines, chemical manufacturers, and the pulp and paper industry. Bob and his team have a reputation for resolving not prolonging legal issues. He served as a law clerk to Hon. Diarmuid F. O’Scannlain of the US Court of Appeals, Ninth Circuit, from 1986-87.