The coronavirus (COVID-19) pandemic understandably has strained available personnel and other resources as oil and gas pipeline operators focus on maintaining their essential operations. For the gas industry, the pandemic comes at a time that coincides with the initial deadlines associated with the first installment of the Pipeline and Hazardous Materials Safety Administration’s gas “mega” rule, July 1, 2020. In order to provide gas operators with further flexibility due to constrained resources, PHMSA announced a 6-month stay of enforcement of initial Part 192 compliance deadlines in the rule, “if a regulated entity fails to meet such requirement by Dec. 31, 2020, for reasons attributable to the [COVID-19] National Emergency.”

The stay is intended to provide operators with additional time to fully incorporate new procedures into their management of change processes “that may be slowed by the challenges of competing resource demands” caused by COVID-19. See also PHMSA press release here. The specific deadlines provisions for which enforcement is stayed include:

  1. Requirements to prepare and implement procedures addressing requirements without a defined timeframe, including the following:

49 C.F.R. § 192.3 (new definitions);
49 C.F.R. § 192.5 (class location records);
49 C.F.R. § 192.7 (new standards incorporated by reference);
49 C.F.R. § 192.9 (gathering pipelines);
49 C.F.R. § 192.18 (PHMSA notifications);
49 C.F.R. § 192.67 (pipe material records);
49 C.F.R. § 192.127 (pipe design records);
49 C.F.R. § 192.150 (passage of in-line inspection);
49 C.F.R. § 192.205 (pipe component records);
49 C.F.R. § 192.493 (in-line inspection tools);
49 C.F.R. § 192.506 (spike pressure test);
49 C.F.R. § 192.517 (test records);
49 C.F.R. § 192.607 (material verification where applicable under 192.712);
49 C.F.R. § 192.619 (maximum allowable operating pressure);
49 C.F.R. § 192.710 (assessments outside of HCAs);
49 C.F.R. § 192.712 (analysis of predicted failure pressure);
49 C.F.R. § 192.805 (OQ program change notification);
49 C.F.R. § 192.909 (IM program change notification);
49 C.F.R. § 192.917 (threat identification);
49 C.F.R. § 192.921 (baseline assessment);
49 C.F.R. § 192.933 (temporary pressure reductions);
49 C.F.R. § 192.935 (preventive and mitigative measures outside force damage changes);
49 C.F.R. § 192.937 (continual evaluation);
49 C.F.R. § 192.939 (reassessment intervals); and
Appendix F (criteria for integrity assessments by guided wave ultrasonic testing).

  1. Identification, scheduling, and performing of assessments of transmission pipelines located in piggable “medium consequence areas” (MCAs) operating over 30% of specified minimum yield strength (49 C.F.R. § 192.710).

There are limitations to the stay, however, particularly that is not applicable to the new 49 C.F.R. Part 191 reporting requirements or subsequent compliance deadlines for developing additional procedures, etc. PHMSA also notes that the stay can be rescinded “if [PHMSA] determines that a significant safety issue or other circumstances warrants doing so, including finding there is no longer a need for an exercise of enforcement discretion.” PHMSA also states that it will not object to the issuance of waivers, special permits, enforcement stays, or similar measures to intrastate gas operators for noncompliance with state regulations equivalent to the above regulations as a result of the pandemic.

For gas operators seeking to avail themselves of this enforcement stay, preparing and maintaining documentation that provides justification underlying the delay and why it is attributable to the COVID-19 pandemic will be key for subsequent pipeline safety inspections. Notably, the hazardous liquid rule also becomes effective on July 1, 2020, but PHMSA has not issued a corollary stay of enforcement for the deadlines associated with that, admittedly less expansive, rule for oil pipeline operators.

We will continue to monitor these developments. If you have any questions, contact Catherine Little or Annie Cook.

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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.