Both the Senate and the House now have bills in varying stages of review for reauthorization of the Pipeline Safety Act, which expires at the end of September.  There are some notable differences in the bills, reflecting the Democratic majority in the House and the Republican majority in the Senate.  Neither bill has been put before the entire chamber for a vote.  If they do progress further, it remains to be seen how the bills will ultimately be reconciled.

As illustrated in the table below, there is currently very little overlap between the two bills beyond the fact that they would both fund PHMSA through 2023.  H.R. 3432 focuses on changes to civil penalties, criminal liability, rulemaking requirements such as eliminating cost benefit analysis, expanded public awareness and community right to know information, specific valve requirements as well as rules and a study intended to limit direct assessment.  In contrast, S. 2299 would require PHMSA to finalize a gas gathering rule within 90 days, require various rulemakings for distribution pipelines borrowed from H.R. 2139/S. 1097, the (original) Leonel Rondon Pipeline Safety Act, updates to LNG regulations, a definition of “idled pipeline” and rulemaking, procedural clarifications and additional options for contesting PHMSA enforcement actions, and voluntary incentive programs.

It is difficult to predict how the differences between these two bills will be resolved, but at this point the provisions in the Senate bill may have more bipartisan support overall.  That said, it remains to be seen whether other aspects of the Department of Transportation’s legislative proposal will be picked up, or if any new issues will arise.  The deadline to reauthorize the Pipeline Safety Act and continue funding PHMSA expires on September 30, 2019.  Given the status and the fact that Congress recesses for the month of August, it may be unlikely to meet that deadline.

Pipeline Safety Act Reauthorization 2019
Comparison of House and Senate Committee Bills

Topic

H.R. 3432, The Safer Pipelines Act of 2019

House Energy & Commerce Committee Bill 

S. 2299, PIPES Act of 2019

Senate Commerce Committee Bill

Cost Benefit Analysis Remove CBA analysis requirement for rulemaking ___
Funding/Staffing $160M to $175M for FY 2020-2023

$147M to $159M for FY-2020-2023

Report on inspector training and staff needs

Reporting Adds more state and local requirements ___
Operation & Maintenance Requires automatic or remote shutoff valves on transmission lines in HCAs based on a risk assessment “as appropriate” within 2 years (unless PHMSA rulemaking requires the same or equivalent technology)

___

Integrity Management Rules to prioritize integrity assessment methods over direct assessment for transmission pipelines; DOT report on alternate methods of assessment for distribution pipelines

___

Public Awareness Expands community right to know and planning; requires operators to review/update existing plans

___

Access to Information Requires greater access to IMP and emergency response plans and system maps; annual pipeline segment reports ___
Civil Penalties Increases maximum penalties for a “related series of violations” to $2M ___
Criminal Liability Revises criminal liability standard to include violations committed “knowingly or recklessly” ___
Public Right to Sue Adds a “mandamus” provision allowing any party to compel PHMSA to perform a nondiscretionary duty

___

Gas Gathering Pipelines

___

90 day deadline for completion of gas gathering pipeline rulemaking; GAO study/report on gathering line design and material data collection and mapping
Distribution Pipelines

___

“Title II, Leonel Rondon Pipeline Safety Act”

  • Regulations regarding (i) DIMP programs, (ii) emergency response plans, (iii) operation and maintenance plans, (iv) require traceable, reliable and complete records and maps to ensure proper pressure controls, (v) district regulator stations to ensure redundancy, and (vi) require 1 OQ qualified person to monitor and be able to shut down gas flow during construction project with potential for over pressure;
  • Review distribution SMS plans and implementation and provide guidance or recommendations on the same
LNG Facilities

___

Part 193 siting compliance review fees for ≥ $2.5B; update Part 193; national center for LNG safety and training
Due Process in Enforcement Actions ___ Option for formal ALJ hearing; open to the public; expressly allowance for settlement; declaratory orders; make recommended decision available
Idled Pipelines ___ Defines idled pipe and requires regulations for managing/inspecting
Voluntary Incentives ___ Safety-enhancing testing programs; technologies; self-disclosure and correction of violations as civil penalty factor

 

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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.