PHMSA Issues Advisory Bulletin to Clarify Regulatory Requirements for Active and Abandoned Pipelines

On August 16, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an advisory bulletin to clarify the regulatory requirements applicable to active or abandoned pipelines.  The advisory bulletin stated that a gas or hazardous liquid pipeline is either active, and therefore subject to all applicable safety regulations in Part 192 or 195, or abandoned, i.e., permanently removed from service and not subject to Part 192 or 195.  The advisory stated that the pipeline safety regulations do not recognize an “idle,” “inactive,” or “decommissioned” status.  PHMSA indicated, however, that a pipeline purged of product presents different risks and may warrant different regulatory treatment.  In particular, deferral of certain activities on purged but active pipelines may be acceptable and the agency is considering proposing procedures that would address how owners and operators would notify regulators of such pipelines.  In the interim, owners and operators should coordinate deferred activities with regulators in advance.

PHMSA Rulemakings Update.  The tables below summarize the status of PHMSA’s rulemakings as reported in the Department of Transportation’s (DOT) August Significant Rulemaking Report and by OMB’s Office of Information and Regulatory Affairs (OIRA) in the Spring 2016 Unified Regulatory Agenda.  Revised dates appear in bold.

*Under Executive Order (EO) 12866, OMB reviews proposed significant rules to ensure they are consistent with applicable law, the President’s priorities, and the principles set forth in the EO, and to ensure the proposals do not conflict with another agency’s policies or actions.  OMB also analyzes the cost-benefit analyses in support of the proposals.  While the EO sets out deadlines for OMB evaluation, review periods are often extended.   

UPDATES FROM OTHER FEDERAL AGENCIES

New FAA procedures will enable use of drones for inspection and monitoring of pipelines.  The Federal Aviation Administration (FAA) recently issued a final rule to regulate the commercial use of small unmanned aircraft or drones.  In addition, Congress has instructed the FAA to develop procedures to exempt monitoring and inspection of critical infrastructure, such as pipelines, from any provisions in the final rule that could prevent using drones for such purposes.  We recently issued an Alert providing an overview of the requirements and steps a pipeline operator must follow to operate drones for monitoring and inspection operations

UPDATES ON LITIGATION

DOT and PHMSA request dismissal of NWF’s lawsuits challenging approval of oil spill response plans.  On August 22, DOT and PHMSA filed a response opposing motions for summary judgment filed by the National Wildlife Federation in separate pending lawsuits, that have (1) alleged that the Secretary of Transportation violated the Clean Water Act by failing to review and approve oil spill response plans, and (2) challenged PHMSA’s approval of an oil spill response plan submitted by Enbridge for its Line 5, which transports oil under the Straits of Mackinac.  DOT and PHMSA argued that NWF’s suit is now moot because DOT has ratified PHMSA’s approval and that NWF lacks standing.  DOT and PHMSA also filed motions for summary judgment requesting that the cases be dismissed.

UPDATES FROM INDUSTRY

API and AOPL release annual pipeline report.  On August 18, the American Petroleum Institute and the Association of Oil Pipe Lines released their annual report and strategic plan. The report summarizes pipeline safety principles, analyzes industry safety records, and outlines efforts liquid pipeline operators are making to advance technologies and implement innovative approaches to inspecting, monitoring, and managing pipeline safety programs.

SELECT UPDATES FROM STATES

CALIFORNIA

CPUC Fines PG&E $25.6 million for record-keeping violations.  On August 26, the CPUC issued a decision finding that Pacific Gas & Electric Company failed to maintain accurate records of its natural gas distribution system and imposing a fine of $25.6 million.  The decision closes an investigation initiated in 2014 in response to six incidents attributed to inaccurate mapping of facilities or incorrect recording of facility specifications.  The CPUC increased the fine proposed by the administrative law judge by $1.3 million.