The federal Clean Water Act (CWA) requires that states review all federal permits involving water discharges to certify that those permits do not conflict with state water quality standards (WQS). 33 U.S.C. § 1341. The statute further provides that if a State “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.” Id. For pipeline projects, this ‘Section 401’ authority was not historically a significant issue, as most federal permits already anticipated and ensured compliance with state WQS. In recent years, however, opponents of new or expanded pipeline projects have sought to use Section 401 as an additional point of challenge, seeking to stop or delay pipeline project permitting. In a decision issued just last week – although not in a pipeline case – the D.C. Circuit provided the most recent clarification on the issue, admonishing states that the one year timeframe is “absolute.” Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). Continue Reading D.C. Circuit Clarifies that States have Maximum of One Year to Decide on Water Quality Certification Applications

In the wake of Hurricane Irma, PHMSA issued a press release regarding hurricane preparedness and response.  As operators implemented hurricane preparedness plans to minimize the impact of the storm, PHMSA noted several significant allowances for pipeline systems impacted by the hurricane including the following:

  1. Temporarily suspending enforcement for noncompliance with pipeline operator qualification or pre-employment and random drug testing requirements associated with the use of pipeline personnel for response and recovery activities.  The enforcement stay is limited to Florida, Georgia, North Carolina, South Carolina, and Puerto Rico.  It does not relieve operators of their responsibility to use trained, non-impaired workers to perform operations and maintenance tasks.
  2.  Acknowledging that some operators may need to extend the hours of service for pipeline controllers.
  3.  Reminding operators that the Agency is prepared to respond to requests for emergency special permits to assist in disaster relief efforts conducted in response to Hurricane Irma, whether to waive requirements or permit the use of innovative technologies not yet accommodated under the hazardous materials or pipeline safety regulations.
  4.  Delay and rescheduling of planned inspections for interstate operators affected by the storm;

In addition, PHMSA issued 2 emergency waivers of the hazardous materials regulations with respect to persons conducting operations under the direction of the EPA Regions 2 or 4 or the United States Coast Guard (USCG) 7th District within Hurricane Irma emergency and disaster areas of Florida, Puerto Rico, South Carolina, the United States Virgin Islands, and certain counties in Georgia.  The waivers are intended to support EPA and USCG actions to prepare for, respond to, and recover from threats to public health, welfare, and the environment caused by the actual or potential oil and hazardous materials incidents resulting from Hurricane Irma.  In addition, EPA approved emergency fuel waivers under the Clean Air Act for 38 states and Washington, DC due to continued impacts caused by Hurricane Harvey to Gulf Coast refineries and large scale evacuations in response to Hurricane Irma.  Specifically, EPA waived requirements for reformulated gasoline through September 26 and low volatility gasoline through September 15, 2017.

Similar to the precautions operators have taken in advance of other catastrophic events, precautions should be taken before initiating restart of refineries, terminals, offshore and inland pipelines, and other manufacturing facilities.  In its response to Irma, PHMSA highlighted prior advisories it has issued in response to hurricanes, flooding, and other emergency situations.  These advisories include recommendations for (among other things) bringing assets back online, including review for structural damage and aerial inspections to check for leaks.  Operators are required to report incidents and accidents to PHMSA that meet reporting thresholds, and the Agency encourages close communication on other damage caused by hurricanes.  Careful damage assessment and restart of assets is critical.