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.
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.
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.
In a decision with significant potential implications for infrastructure construction projects, the U.S. District Court for the District of Columbia recently remanded, but did not vacate, the Fish and Wildlife Services’ (“FWS”) 2015 decision to list the northern long-eared bat as threatened under the Endangered Species Act (“ESA”). The Court also vacated a component of the FWS and National Marine Fisheries Services’ (collectively, “Services”) significant portion of its range policy (the “SPR Policy”) regarding how to evaluate whether a species is endangered. The SPR Policy, in place since 2014, formed the basis for other listing decisions and its vacatur has implications beyond the long-eared bat.
On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA). The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.
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.
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).
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.
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 end of September, and the statute is up for reauthorization this year.
To read the entire article in Law360, click here.
On August 12, 2019 the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three final rules that are expected to significantly affect the applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.
To read the entire blog post, click here.