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.

Continue Reading EPA Overhauls Clean Water Act Section 401 Regulations

As previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP 12”) on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. The court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of projects that are unrelated to the project at issue in that case, the Keystone XL Pipeline.  On April 27, 2020, the Corps requested that the court stay the effect of its ruling pending the Corps’ appeal to the U.S. Court of Appeals for the Ninth Circuit, and, on May 11, 2020, the District Court narrowed its order to allow continued authorization of maintenance on existing pipelines and construction of certain non-pipeline projects.

Continue Reading Update: Ninth Circuit Denies Emergency Stay in NWP 12 Litigation

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

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

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is close to finalizing a rule applicable to the safety of natural gas transmission pipelines that has been nearly eight years in the making. Both Congress and the industry have urged PHMSA to issue a final rule and PHMSA has now signaled that the rule is currently awaiting final approval by the Office of Management and Budget (OMB). With a final rule that could be published in the coming weeks or months, pipeline operators should be prepared to review and modify their compliance programs as appropriate.
Continue Reading Gas Pipeline Safety Rule Clearing Final Hurdle: Operators Should Prepare

With an increased interest in the resolving disputes efficiently and avoiding litigation where possible, the time may be right for the Pipeline and Hazardous Materials Safety Administration (PHMSA) to clarify the process for settlement of pipeline safety compliance issues, whether through new rules or a written settlement policy. On the hazardous materials regulatory front, PHMSA has historically engaged in settlements that are guided by an express allowance for settlement under the regulations. The Agency has also engaged in settlements in at least some pipeline safety cases over the years and more so in the last year. Without specific rules or a written settlement policy in place, however, settlements of pipeline safety matters in practice may not be consistently implemented.

Many federal agencies have settlement policies that encourage parties in enforcement actions to discuss issues before progressing to full administrative hearings. Such policies offer the possibility of narrowing, if not resolving, legal disputes, which can benefit all parties by realizing efficiencies and avoiding the cost of protracted disputes. These efforts are analogous to pre-trial conferences in federal courts, where a court may ask the parties to discuss whether issues can be narrowed or resolved without full adjudication, in order to ‘expedite disposition of the action’ and ‘facilitate settlement’ (see Fed.R.Civ.Proc. 16(a)).
Continue Reading Pipeline Safety Settlements: Time to Take a Page from Hazmat?

Congress recently convened its third Committee Hearing on reauthorization of the Pipeline Safety Act, before the House Energy and Commerce Committee.  Much of the discussion of focused on pipeline security, among other issues that have been discussed in prior hearings. Adding to the focus was the absence of an invited representative from the Transportation Security Administration (TSA), the agency who is tasked with sharing oversight of pipeline security with PHMSA. The TSA has come under criticism in light of a recent Government Accountability Office report that was critical of the agency’s Pipeline Security Division and its ability to ensure the safety and reliability of pipeline energy network from both cyber and physical security saboteurs. That report cited “significant weaknesses” in TSA’s program and pointed to, among other challenges, a shortage of qualified inspectors to address cyberattacks and other physical intrusions facing pipelines.
Continue Reading Third Pipeline Safety Act Hearing Focuses on Security