PHMSA is proposing regulatory reform changes to the federal pipeline safety regulations at 49 CFR 190, 194, and 195, predominantly impacting liquid pipelines. Consistent with the Administration’s directives, the proposed revisions are intended to reduce regulatory burdens and improve regulatory clarity, without compromising safety and environmental protection. The proposed revisions were published in the Federal Register on April 16, 2020 and comments are due by June 15, 2020. These proposed changes would clarify and revise the requirements for how operators submit records to PHMSA; make important clarifications to the scope of pipelines that would require oil spill response plans; and, specific to liquid pipelines, substantially increase the property damage incident reporting threshold, allow remote monitoring of rectifier stations, and clarify integrity management guidance.

Continue Reading PHMSA Proposes Regulatory Reform Rule

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?

Over the past week and in just the last 24 hours, several federal and state agencies have issued guidance documents and orders impacting the oil and gas pipeline industry. Through this guidance and other orders, federal and state governments are recognizing the oil and gas industry as critical to responding to COVID-19, while at the same time providing for some flexibility in the likelihood that operators will face resource and staffing constraints in executing their pipeline safety compliance obligations.

Continue Reading COVID-19 Oil and Gas Update – Agencies Provide Limited Enforcement Discretion and Confirm Infrastructure as Essential

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.

Continue Reading Oil and Gas Preparedness and Contingency Planning in the Wake of COVID-19

The Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Transportation Security Administration (TSA) recently finalized an Annex to a longstanding Memorandum of Understanding (MOU) regarding pipeline safety and security. This Annex comes just weeks after a publicized natural gas pipeline cybersecurity intrusion and responds to several recommendations from the Government Accountability Office (GAO) discussed in our earlier alert to update the prior Annex which had not been reviewed or revised since its inception over 14 years ago. The updated Annex emphasizes information-sharing and coordination between the agencies and signals that the agencies are moving forward on satisfying outstanding GAO recommendations. While this is a step in the right direction, questions remain whether TSA is the appropriate agency to oversee pipeline security and whether existing voluntary standards should be mandatory.

Continue Reading As Cyberthreats Continue, PHMSA and TSA MOU Stresses Information Sharing and Coordination

The current Administration has focused on reforming federal administrative agency enforcement by emphasizing transparency, due process, and fair notice. The concepts of due process and fair notice are well-established legal precepts, and they are critical to the regulated community. For a variety of reasons, however, administrative agencies may not be consistently adhering to these obligations in practice. Efforts that began with Executive Orders last year continue in 2020 with a recent Office of Management and Budget (OMB) request for comments on improving enforcement processes. Oil and gas industry trade groups and individual operators should take advantage of the OMB’s request for comments to improve enforcement processes at many federal agencies, including the Pipeline and Hazardous Materials Safety Administration (PHMSA). Comments are due by March 16, 2020.

Continue Reading Administrative Enforcement Reforms Continue

PHMSA recently finalized a rule that significantly revises certain aspects of liquid pipeline safety regulation under 49 CFR Part 195.  Nearly nine years in the making, the final rule is intended to address PHMSA and NTSB accident investigation findings from the Marshall Michigan spill in 2010 as well as 2011 and 2016 outstanding Congressional mandates and GAO recommendations.  A version of this rule was initially scheduled for publication in the Federal Register in the last week of the prior presidential administration in 2017.  It was held back as a result of the regulatory freeze and subsequent deregulatory review by the Trump administration which pared down certain changes in the recent final rule.

Continue Reading Final Rule Imposes Expansive New Requirements for Liquid Pipelines

On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) issued three long awaited final rules.  This post addresses the Agency’s final rule on Emergency Orders, a significant new tool in PHMSA’s pipeline safety enforcement tool box that can be issued to the entire industry or portion of the industry.  Alerts on the other two rulemakings are forthcoming (i.e., the first of three final rules regarding natural gas pipelines and amendments to the liquid pipeline rules).

Continue Reading PHMSA Updates its Latest Enforcement Tool: Emergency Order Final Rule

Tomorrow’s Federal Register will include three final rules published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that have been years in the making:  (1) Safety of Gas Transmission Pipelines: Maximum Allowable Operating Pressure Reconfirmation, Expansion of Assessment Requirements, and Other Related Amendments; (2) Safety of Hazardous Liquid Pipelines; and (3) Enhanced Emergency Order Procedures.  All three rules have been lingering at the Office of Management and Budget (OMB) for review for at least several months, and probably none have been more anticipated than the gas transmission and liquid pipeline rules.

Continue Reading PHMSA Publishes Long-Awaited Final Rules

Troutman Sanders Pipeline partners Catherine Little, Bob Hogfoss and Annie Cook authored an article published in Law360 on the Pipeline Safety Act reauthorization legislation currently in the U.S. House and Senate. The current authorization of federal pipeline safety laws and funding of the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) expires at the