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.”

Continue Reading Ongoing COVID-19 Pandemic Prompts Gas Pipeline Enforcement Stay

On April 9, the United States Court of Appeals for the Sixth Circuit heard arguments in National Wildlife Federation v. Secretary of the Department of Transportation, a pair of consolidated appeals arising from approval of two spill response plans by the Pipeline and Hazardous Materials Safety Administration (PHMSA). Operators of many onshore oil pipelines must submit, and PHMSA must review, plans to prevent or respond to a “worst case discharge” into or on navigable waters or their adjoining shorelines (49 C.F.R. Part 194). This planning process is a product of the Oil Pollution Act’s amendments to the Clean Water Act. In ruling on these appeals, the Sixth Circuit will determine whether PHMSA approval of those plans requires something that the agency historically has not done: consultation under the Endangered Species Act (ESA) or review under the National Environmental Policy Act (NEPA).

Continue Reading Will Pipeline Spill Response Plans Require a Biological Opinion or NEPA Review?

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

Continue Reading EPA Issues Enforcement Discretion Guidance to Address Compliance in Wake of COVID-19

The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

Continue Reading FDA Authorizes Temporary Production of Hand Sanitizer

The Council on Environmental Quality (CEQ) issued new draft guidance at the end of June intended to further permit streamlining generally and greenhouse gas (GHG) analysis specifically.  The new guidance replaces previous CEQ guidance issued by the Obama Administration on how GHG effects should be estimated for projects during review under the National Environmental Policy Act (NEPA).  Whether and how a federal Agency must consider GHG emissions during NEPA review continues to be a controversial issue for pipeline construction and expansion projects that require federal permits.

Continue Reading Proposed CEQ Guidelines on Climate Change and NEPA Focus on Permit Streamlining