October 17, 2017

October 16, 2017

Subscribe to Latest Legal News and Analysis

PHMSA Deputy Administrator; Rulemakings Update; Pipeline Safety Update- August 7, 2017

Drue Pearce Named PHMSA Deputy Administrator

Ms. Drue Pearce was named the Deputy Administrator of the Pipeline and Hazardous Materials Safety Administration (PHMSA) effective August 7.  Ms. Pearce joins PHMSA from private practice.  She previously served for 17 years in the Alaska Legislature, including two terms as the Senate President.  During the administration of George W. Bush, she served at the Senior Advisor to Department of Interior Secretaries Gale Norton and Dirk Kempthorne, advising primarily on Alaska Affairs.  She was the first Federal Coordinator in the Office of the Federal Coordinator for Alaska Natural Gas Transportation System Projects.  Ms. Pearce also served on PHMSA’s Technical Hazardous Pipeline Safety Standards Committee, one of two technical committees that advise PHMSA on the development of pipeline safety standards.  Most recently, Ms. Pearce was in private practice. 

PHMSA Rulemakings UpdateIn July, the Office of Management & Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) released an updated Unified Regulatory Agenda providing information on regulations under development by federal agencies.  The agenda appears in two principal parts:  “Current Agenda Agency Regulatory Entries for Active Actions” and “Current Long Term Actions,” on which regulatory action within 12 months is not expected.

The tables below summarize the status of rulemakings pending before the Pipeline and Hazardous Materials Safety Administration (PHMSA) as reflected in the Unified Regulatory Agenda.  The Department of Transportation (DOT) has not released a Significant Rulemaking Report since December 2016 as the agency evaluates rulemakings in accordance with Executive Orders 13771 and 13777.  DOT’s previous Significant Rulemaking Reports are available here

Pending Final Rules

Proceeding

OIRA Estimated Publication

Previous OIRA Estimated Publication

Enhanced Emergency Order Procedures (Interim Final Rule issued October 2016)

September 2017

 No Estimate Provided

Plastic Pipe Rule (NPRM issued May 2015

December 2017

December 2016

Safety of Gas Transmission and Gathering Pipelines (NPRM issued April 2016)

June 2018

Not listed

Safety of Hazardous Liquid Pipelines (NPRM issued October 2015)

December 2017

Advanced copy released January 13; withdrawn from Federal Register publication January 24

Underground Natural Gas Storage Facilities (Interim Final Rule issued December 2016) 

 January 2018

Not listed 

Pending Notices of Proposed Rulemaking

Proceeding

OIRA Estimated Publication

Previous OIRA Estimated Publication 

Standards Update Rule – 2015 and Beyond (formerly the “Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments)

September 2017

November 2016

State Pipeline Safety Program Certification

Not listed

November 2016

Valve Installation and Minimum Rupture Detection Standards

 September 2017

May 2017

UPDATES FROM OTHER AGENCIES

GAO releases report recommending modifications to PHMSA’s use of data in establishing and validating inspection priorities.  On August 3, the U.S. Government Accountability Office (GAO) published a report, required by Section 21 of the Protecting Our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016, describing how PHMSA uses pipeline and corrosion data in the agency’s Risk Ranking Index Model which uses pipeline integrity threats to determine how often PHMSA inspects pipeline systems.  GAO found that PHMSA did not document the rationale or justifications for key decisions regarding the threats selected for the model, how they are weighted, or thresholds for establishing risk tiers for inspected pipeline segments.  GAO also found that PHMSA has not used data to assess the overall effectiveness of the model and cannot demonstrate the model’s effectiveness. 

GAO recommends that the Secretary of Transportation direct PHMSA to (1) document decisions and underlying assumptions for the model’s design, including the data and information analyzed in determining the model’s components and (2) implement a data-driven process to review and assess the model’s effectiveness in prioritizing pipelines for inspection. 

Finally, GAO noted that, while OMB did not approve PHMSA’s June 2016 proposal to expand the amount of information gathered for the National Pipeline Mapping System (NPMS), PHMSA plans to propose a revision to the NPMS data collection before the current data collection authorization expires in 2020.

DOT OIG completes audit of PHMSA’s Technical Assistance Grant program.  On July 19, the DOT Office of Inspector General (OIG) issued an audit report, required by the PIPES Act of 2016, regarding PHMSA’s Technical Assistance Grant (TAG) program, which provides funds to improve the safety of communities located near pipeline facilities.  The Pipeline Safety Act prohibits grant recipients from using the funding for lobbying, direct support for litigation, or direct advocacy for or against a pipeline construction project.  OIG found that PHMSA has reasonable non-final internal controls for awarding and overseeing TAG funding, but does not implement them consistently to ensure that grant funds are not used for prohibited purposes.  OIG offered several recommendations to improve PHMSA’s award and oversight processes for the TAG program.

UPDATES FROM CONGRESS

Members of Congress request assessment of current security protections for pipelines. On July 18, Senator Maria Cantwell (D-WA), ranking member of the Senate Energy and Natural Resources Committee, and Congressman Frank Pallone, Jr. (D-NJ), ranking member of the House Energy and Commerce Committee requested that the GAO and Transportation Security Administration (TSA), which has authority for pipeline security including cybersecurity, provide an assessment of current cyber and physical security protections for natural gas, oil, and hazardous liquid pipelines and associated infrastructure.  Senator Cantwell and Congressman Pallone noted the increasing interdependence of electric and natural gas infrastructure and the evolving nature of cyber threats from criminal and foreign state actors.

UPDATES FROM INDUSTRY

INGAA affirms commitment to responsible pipeline construction.  On July 26, the Board of Directors of the Interstate Natural Gas Association of America formally adopted INGAA’s “Commitment to Responsible Pipeline Construction,” endorsing the following core principles: 1) ensuring safe and reliable pipeline construction; 2) caring for communities and landowners; 3) preserving environmental resources; and 4) respecting regulations.

PAPA releases Summer 2017 newsletter.  The Pipeline Association for Public Awareness (PAPA) released its Summer 2017 newsletter containing information about pipeline safety and awareness for public officials.  PAPA is an organization that promotes communication and cooperation with local organizations to enhance public safety, improve emergency preparedness, protect the environment and prevent property and facility damage.

SELECT UPDATES FROM STATES

MISSISSIPPI

The initial regulations of Mississippi Underground Facilities Damage Prevention Board became effective on July 22, 2017.  On July 26, 2017 the Mississippi Underground Facilities Damage Prevention Board proposed regulations to define “routine maintenance.” Comments on the proposal are due August 22, and an oral proceeding is scheduled for August 23.

OKLAHOMA

On June 13, the Oklahoma Corporation Commission finalized a rule amending regulations pertaining to petroleum storage tanks. The rule becomes effective on September 11.

WASHINGTON

On July 13, the Washington Utilities and Transportation Commission issued permanent rules incorporating by reference, subject to certain exceptions, the latest versions of PHMSA’s gas pipeline regulations that were in effect on March 6, 2015:  49 C.F.R. Parts 191, 192, 193, 195, 198, and 199.  The regulatory text appears to contain an error regarding the date of the version of the federal regulations adopted for natural gas pipelines in one location, but the correct date appears to be March 6, 2015.  The new rules become effective August 13, 2017.

© 2017 Van Ness Feldman LLP

TRENDING LEGAL ANALYSIS


About this Author

Susan A. Olenchuk, Van Ness, Pipeline Safety Lawyer, Regulatory Matters Attorney
Partner

Susan Olenchuk represents clients on regulatory, safety, enforcement, and policy issues under the Pipeline Safety Laws, as well as under the Natural Gas Act (NGA), and the Natural Gas Policy Act (NGPA). She practices before the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Federal Energy Regulatory Commission (FERC), and federal courts. 

Susan’s PHMSA practice covers compliance and strategic counseling, enforcement, litigation, audit preparation, and policy guidance.  She represents operators of gas and hazardous liquid...

202.298.1896
Bryn Karaus, Van Ness Feldman Law Firm, Pipeline Safety Attorney
Associate

As a member of the firm's pipeline safety practice, Bryn focuses on the regulation of pipelines and liquefied natural gas (LNG) facilities and the transportation of hazardous materials, and helps operators develop, implement, and defend their safety programs. Her practice covers compliance and strategic counseling, enforcement, litigation, audit preparation, and policy.

Prior to joining Van Ness Feldman, Bryn was a Senior Attorney in the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA), where she handled matters related to the federal safety standards for oil and gas pipelines and LNG facilities. Bryn represented the agency in pipeline safety enforcement cases, collaborating with engineers to develop and enforce notices of probable violation, corrective action orders, and safety orders. She worked with PHMSA inspectors and with other federal and state agencies on accident and incident investigations. She also handled the legal review of PHMSA’s LNG portfolio during the projects’ FERC application process.

202-298-1821
Barbara A. Deathe, Van Ness, Paralegal, Pipeline Matters Support Staff, Regulatory Arrangements,
Paralegal

Barbara Deathe has over 20 years of experience as a paralegal. She supports the firm’s lawyers and clients with pipeline safety and regulatory and transactional natural gas matters before the Federal Energy Regulatory Commission (FERC). In addition to monitoring various proceedings before the FERC and the U.S. Court of Appeals, she assists with the preparation of certificate applications, tariff filings, and other pleadings before the Commission and the preparation and filing of briefs and other pleadings in the U.S Court of Appeals. Barbara also conducts bluebook cite...

202.298.1804