The coronavirus is causing marked disruption in the U.S., with increasing impacts across the country. Pipeline, terminal and LNG facilities are no exception, and many operators have been reviewing or implementing their contingency and emergency response plans. The current situation falls outside of most existing plans, however. With staffing concerns, travel limitations and other unforeseen issues, we expect operators will be presented with some challenges in the coming weeks in meeting all pipeline and LNG safety legal requirements. For example, we expect there may be issues with maintaining sufficient adequately trained and qualified staff for control rooms or field positions responsible for inspection and maintenance.

DOT and PHMSA have not yet issued any official guidance with respect to the potential regulatory issues posed by COVID-19. Consistent with CDC guidelines, we understand that DOT has at least moved to implementing internal changes to minimize in person contact and visits to DOT facilities will be limited. DOT is well acquainted with the potential challenges that could arise and PHMSA itself has historically issued preemptive emergency advisory guidance in advance or in the aftermath of major natural disasters (i.e., hurricanes, flooding, etc.).

PHMSA’s prior emergency guidance has in the past clarified that PHMSA will provide relief from and waive certain Operator Qualifications (OQ) and pre-employment requirements during response and recovery periods. PHMSA regulations also expressly allow the Agency to waive compliance with regulatory requirements during emergency situations where compliance may not be possible or feasible and based on an operator’s apply for emergency waivers (special permits) in those instances. 49 C.F.R. § 190.341(g) (for pipelines and LNG facilities); 49 C.F.R. § 107.177 (for hazardous materials). Emergency waivers (or special permits) last for a period of up to 60 days, although they are renewable after notice and an opportunity for comment. Id.

We anticipate that PHMSA may issue an emergency advisory to address potential impacts of the COVID-19 pandemic and provide some relief from certain regulatory requirements, such as OQ and training. Informal resolution with PHMSA for specific issues should also be available to operators. If you have not already, it may be prudent to engage with your Regional Director(s) or the Agency’s Headquarters directly, as appropriate. Further, bear in mind that PHMSA maintains enforcement discretion and provides for penalty mitigation for issues that are disclosed to the Agency and addressed by operators. In the event that these issues are ever raised in subsequent inspections, documentation of the applicable communications with PHMSA and any relief allowed by the Agency will be helpful.

We will continue to provide updates regarding these issues as they arise. As with any national emergency, the industry and the Agency’s goals are aligned and focused on the safety of the public and continuing to meet our nation’s energy needs. Please do not hesitate to contact us to assist you in further evaluating these issues as they unfold and helping to identify solutions.

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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.