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On January 27, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) announced a public informational meeting on February 17, 2022 regarding PHMSA’s plan for forthcoming audits of updated inspection and maintenance plans to eliminate and minimize leaks pursuant to Section 114 of the Protecting Our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2020. According to the notice, the purpose of the meeting is to review the requirements of Section 114, which required pipeline operators to update their inspection and maintenance plans by December 27, 2021, to (1) eliminate hazardous leaks, (2) minimize releases of natural gas, and (3) address the replacement or remediation of pipelines that are known to leak due to their material, design, or past operating and maintenance history.
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Continue Reading PHMSA Informational Meeting on Upcoming Leak Detection Inspections

PHMSA has finally published guidance to better delineate federal oversight of midstream processing facilities for public comment. The guidance, in the form of Frequently Asked Questions (FAQs), is intended to avoid gaps or overlaps in regulatory oversight of midstream facilities, particularly between PHMSA and OSHA. Comments are due by January 4, 2021. An example of the success of working groups where industry and agencies partner to provide additional regulatory clarity, the FAQs should — if finalized after notice and comment — provide more certainty to both regulated midstream processing operators and state and federal agencies.
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Continue Reading PHMSA Publishes Midstream Processing Guidance

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued two Advisory Bulletins directed to natural gas distribution pipeline owners and operators. PHMSA released the advisories in response to the National Transportation Safety Board (NTSB) recommendations arising out of two high-profile distribution pipeline incidents in Silver Spring, Maryland and Merrimack Valley, Massachusetts. The first advisory focuses on indoor meters and regulators to remind operators of the relevant regulatory requirements and risks. The second advisory covers low-pressure distribution systems, emphasizing the possibility of failures due to overpressurization.
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Continue Reading PHMSA Advisories Target Distribution Pipeline Meters and Overpressure Protection

On June 1, 2020, the Environmental Protection Agency (“EPA”) released a final rule establishing procedural requirements for water quality certifications under section 401 of the Clean Water Act (“CWA”).  EPA’s August 2019 notice of proposed rulemaking (“NOPR”) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping changes to its section 401 regulations in conformance with its interpretation.  EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in promulgating new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (“TAS”) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.
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Continue Reading EPA Overhauls Clean Water Act Section 401 Regulations

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