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Pipeline Safety Update, September 2016: PHMSA Issues Advisory Bulletin to Clarify Regulatory Requirements for Active and Abandoned Pipelines; New FAA Procedures; DOT and PHMSA;

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 UpdateThe 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.

Pending Final Rules

Proceeding

DOT Estimated Submission to OMB*

DOT Estimated Publication

OIRA Estimated Publication 

Expanding the Use of Excess Flow Valves in Gas Distribution Systems to Applications Other than Single-Family Residences

September 21, 2016

February 1, 2017

January 2017

Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Proposed Changes

Not listed by DOT

Not listed by DOT

October 2016 

Plastic Pipe Rule

Not listed by DOT

 Not listed by DOT

 October 2016

Safety of Gas Transmission and Gathering Pipelines

Information Not Available 

Information Not Available  

 Information Not Available 

Safety of Hazardous Liquid Pipelines

 September 12, 2016

December 20, 2016 

 October 2016

Underground Storage Facilities (interim final rule) 

October 12, 2016 

January 23, 2017 

 August 2016

Pending Notices of Proposed Rulemaking

Proceeding

DOT Estimated Submission to OMB*

DOT Estimated Publication 

OIRA Estimated Publication 

Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments

 Not listed by DOT

 Not listed by DOT

July 2016

State Pipeline Safety Program Certification

Not listed by DOT

Not listed by DOT

August 2016

Valve Installation and Minimum Rupture Detection Standards

 January 24, 2017

 May 3, 2017

September 2016 

*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 reportOn 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.

© 2020 Van Ness Feldman LLPNational Law Review, Volume VI, Number 245
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About this Author

Susan A. Olenchuk, Van Ness Feldman Law Firm, Washington DC, Energy and Litigation Law 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
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