Pipeline Law

Pipeline Law

Welcome to the Underground

Lawyers with the Hunton & Williams LLP Pipeline Practice group have been providing legal support to America’s oil and gas pipeline industry for a quarter century. During that time, they have gained extensive experience on a wide variety of issues of concern to the industry, the regulatory agencies and the public. Hunton & Williams’ pipeline group also has extensive geographical reach in this practice area, with matters in almost all 50 states. Our goal is to help solve problems, not prolong them, and our experience helps to achieve timely resolution.

Environmental Group Threatens To Sue U.S. Department of Transportation Over Spill Response Plans

Posted in Environmental, Incident Response, PHMSA

On July 28, 2015, the National Wildlife Federation (NWF) informed the U.S. Department of Transportation (DOT) of its intent to sue for violations of the Clean Water Act (CWA) § 311(j) and Executive Order 12777 (which guides federal implementation of the Oil Pollution Act of 1990). Specifically, NWF alleges that DOT has for over 20 years failed to issue regulations requiring an owner or operator of an offshore facility landward of the coast line to prepare and submit a facility response plan (FRP) applicable to discharges of oil or hazardous substances to waters of the United States. NWF Notice of Intent Letter, at 1. According to NWF, issuing such regulations is a non-discretionary duty under the CWA.

DOT regulations at 49 C.F.R. Part 194 require FRPs for onshore facilities, and the U.S. Department of Interior, Bureau of Safety and Environmental Enforcement regulations at 30 C.F.R. Part 254 require FRPs for offshore facilities, meaning “the area seaward of the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the area seaward of the line marking the limit of inland waters.” 58 Fed. Reg. 7489, 7490 (Feb. 8, 1993).

NWF argues that DOT has not authorized PHMSA to review or approve FRPs for offshore pipelines landward of the coastline located in waters of the United States, nor to issue regulations requiring owners or operators of such pipelines to prepare and submit FRPs. NWF alleges that this creates a gap in the federal regulatory requirements associated with FRPs. As an example, NWF points to the fact that DOT has not required and has not approved FRPs for lines such as sections of an Enbridge offshore pipeline (“Line 5”) located under the Straits of Mackinac, the St. Clair River, and other inland navigable waters. Apparently, Enbridge prepared and submitted FRPs for these sections of Line 5 to PHMSA, but the Agency declined to approve them, as it has not been authorized by DOT to review or approve FRPs for offshore pipelines landward of the coastline. NWF argues that DOT must establish a regulatory requirement for owners or operators of such lines to prepare, submit, and obtain approval of an FRP and that if DOT fails to do so, it is in violation of CWA § 311(j)(5)(A)(i).

The focus of the letter and NWF’s potential suit is on inland waters that are jurisdictional under the CWA, which highlights the importance of the U.S. EPA and Army Corps of Engineers’ May 27, 2015 final rule defining “waters of the United States.” NWF has threatened to sue DOT within sixty days if it does not issue the regulations that NWF alleges are required. This would be the second lawsuit brought against DOT and its sub-agencies in the last few years concerning FRPs. PHMSA was sued in 2013 by a watchdog group, Public Employees for Environmental Responsibility (PEER), over the Agency’s failure to produce copies of operators’ FRPs (and related records) that the group had requested under the Freedom of Information Act (FOIA). The suit is still pending, with PHMSA filing regular status reports informing the court of its progress in producing the requested records.

Ninth Circuit Rejects San Francisco Lawsuit Against PHMSA

Posted in Judicial/ Administrative Decisions, PHMSA, Pipeline Safety Act

The United States Court of Appeals for the Ninth Circuit has affirmed dismissal of a lawsuit brought in 2012 by the City and County of San Francisco (San Francisco) to challenge PHMSA’s oversight of State enforcement of pipeline safety standards before and after the San Bruno pipeline incident in 2010.  Specifically, in its lawsuit San Francisco took issue with PHMSA’s approval of the California Public Utilities Commission (CPUC) certification to regulate intrastate pipelines in California and the Agency’s disbursement of federal funds to the CPUC to carry out its pipeline safety program in compliance with its certification.  The Ninth Circuit opinion affirms the District Court’s ruling in the case that the federal Pipeline Safety Act (PSA or the Act) citizen suit provision does not authorize mandamus-type citizen suits against PHMSA, and that any decision by the Agency to refrain from reviewing or rejecting a State’s certification to regulate its intrastate pipelines or to fund a State pipeline safety program is not subject to judicial review.

Continue Reading

PHMSA Issues Final Rule on Pipeline Damage Prevention Programs

Posted in Administrative Rulemaking, Enforcement, PHMSA, Pipeline Safety Act

PHMSA has recently issued a Final Rule establishing review criteria for state excavation damage programs, as well as a process for enforcing Federal excavation damage requirements in states with inadequate excavation damage prevention enforcement.  The Final Rule will be published in tomorrow’s Federal Register and is effective January 1, 2016.
Continue Reading

PHMSA Proposes Expanded Use of Excess Flow Valves on Gas Distribution Lines

Posted in Administrative Rulemaking, Integrity Management, PHMSA, Reporting Obligations

PHMSA is proposing to amend its regulations applicable to natural gas distribution/service lines at 49 C.F.R. Part 192 to require expanded use of excess flow valves (EFVs) and manual service line shut-off valves (e.g. curb valves) in certain applications.  The Agency has released a pre-publication version of a Notice of Proposed Rulemaking (NPRM or the Notice) describing these changes, which will be published in tomorrow’s Federal Register.  Comments on the Notice will be due 60 days from publication, i.e. by September 13, 2015.

Continue Reading

PHMSA Comes Under Scrutiny as Pipeline Safety Act Reauthorization Draws Near

Posted in Administrative Rulemaking, Federal/ State Legislation, PHMSA, Pipeline Safety Act

The Pipeline Safety Act (PSA) is up for reauthorization at the end of September of this year and, in the wake of recent high-profile incidents and increased scrutiny of the effectiveness of PHMSA pipeline safety oversight, it remains to be seen whether Congress will impose new substantive amendments to the statute or simply pass a ‘clean’ bill, approving it in its current form.  A timeline of recent events, however, reflects the increasing possibility that the reauthorization bill will contain new pipeline safety measures:

  • On June 9, the U.S. House of Representatives approved a FY2016 appropriations bill that included an amendment to earmark $1 million of PHMSA’s budget for addressing overdue mandates from Sections 4 and 8 of the 2011 PSA amendments concerning the use of automatic shutoff or remotely controlled valves and leak detection systems. [Congressional Record excerpt concerning discussion of this measure is available here, see H3856]
  • On June 16, Senator Daines (R-MT) requested that the Senate Commerce, Science, and Transportation Committee hold an oversight hearing on PHMSA’s reauthorization to review the Agency’s “efficacy in overseeing and enforcing federal regulations.”  No hearing date has yet been set.
  • On June 25, members of the U.S. House of Representatives Committee on Energy and Commerce wrote Stacy Cummings, PHMSA Interim Executive Director, and Shaun Donovan, OMB Director, requesting an update on overdue gas and hazardous liquid pipeline safety rules awaiting PHMSA and OMB action.  The letter details the numerous Congressional mandates that remain incomplete beyond the statutory deadlines and GAO recommendations that have not been addressed.  It requests that PHMSA/OMB provide an explanation of the status of these outstanding actions, as well as a schedule for their completion by July 14.
  • Also on June 25, the Senate Appropriations Committee approved a measure sponsored by Senator Daines and his colleague, Senator Jon Tester (D-MT), to require PHMSA to report on existing pipeline safety precautions along America’s major rivers.  This proposed amendment to the DOT FY 2016 funding bill – if passed – would mean that PHMSA will have to report on how it is using real-time monitoring during flood events and data from other agencies (such as the U.S. Geological Survey) to address challenges associates with rivers and flood plains.  [See Senate Committee on Appropriations Report to Accompany H.R. 2577, at p. 93, available here.] Senator Tester introduced a bill containing provisions similarly focused on pipeline river crossings and flooding in 2011 that was not ultimately enacted as part of the 2011 PSA amendments.
  • On July 7, the House Subcommittee on Energy and Power announced that it will hold a pipeline safety hearing on July 14 to discuss PHMSA’s progress in implementing reforms required under the 2011 PSA amendments. Information about the hearing, including access to the public webcast and a background memo on the hearing, are available here.

Likely in response to Congressional and public pressure, and in anticipation of increased scrutiny as the reauthorization deadline draws near, PHMSA has recently issued several long overdue rulemakings, including a proposed rule on incident notifications and other topics and another proposed rule on excess flow vales on gas distribution lines issued within the past 2 weeks.

PHMSA Issues Expansive Proposed Rulemaking

Posted in Administrative Rulemaking, Construction & Design, Control Room Management, Integrity Management, PHMSA, Pipeline Safety Act, Reporting Obligations

The Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) will publish a new Notice of Proposed Rulemaking (NPRM or Notice) in tomorrow’s Federal Register.  A pre-publication version of the NPRM is available here.  Comments on this proposed rulemaking will be due 60 days Federal Register publication, i.e. by September 8, 2015.  This Notice responds to directives from Congress in Sections 9 and 13 of the most recent (2011) amendments to the Pipeline Safety Act (PSA), which became effective January 3, 2012.  The PSA amendments gave the Agency one year to propose new rules (or by January of 2013).  This NPRM is thus more than two years overdue, although both Congress and other entities have been pressing the Agency to address these and other issues more promptly and comprehensively.

Continue Reading

PHMSA Announces Public Workshop on Risk Modeling Methodologies

Posted in Events, Integrity Management, PHMSA

PHMSA has issued a preliminary notice and a call for abstracts in connection with a public workshop planned for September 9-10, 2015 on risk modeling methodologies for pipelines and non-pipeline systems.  80 Fed. Reg. 38266 (July 2, 2015).  Although industry has developed a variety of approaches to risk analysis since enactment of the integrity management regulations (which require operators to analyze threats to their pipelines in order to reduce the likelihood and consequences of a release, see 49 C.F.R. Parts 192.916 and 195.452), PHMSA suggests that many of these lack an investigative-oriented approach that identifies specific ways to reduce risk.  80 Fed. Reg. at 38627.  According to the notice, the purpose of the workshop is for industry representatives, regulators, the public, and other stakeholders to share knowledge and experience on risk modeling within the pipeline industry and other fields, and to discuss practical ways in which operators may adapt pipeline risk models to the analyses of their systems. The notice solicits abstracts on engineering and technical modeling considerations relevant to advancing pipeline risk models, as well as risk modeling methodologies used in non-pipeline applications.  It also encourages any input from other industries on risk modeling that may be applicable to pipelines.

Continue Reading

PHMSA Advisory Regarding Damage to Pipeline Facilities Caused by Hurricanes

Posted in Administrative Guidance, Incident Response, Operation & Maintenance, PHMSA, Public Awareness/ Community Relations

PHMSA has re-issued an Advisory, reminding gas and hazardous liquid pipeline operators of the potential for damage to their pipeline facilities caused by the passage of hurricanes.  The Advisory, which was originally published in 2011, explains that hurricanes can adversely affect pipeline operations and can increase the risk of pipelines becoming exposed or constituting a hazard to navigation in the case of underwater pipelines in the Gulf of Mexico.  According to PHMSA, such circumstances trigger an operator’s obligation to take appropriate corrective measures.  80 Fed. Reg. 36042, 36043 (June 23, 2015) (citing 49 C.F.R. Parts 192.613 (surveillance of gas pipelines); 195.401(b) (repairs on hazardous liquid pipelines); 192.613, 195.413 (underwater inspections of shallow-water gas and hazardous liquid pipelines)).

Continue Reading

Pipeline Safety Management Systems Standard (ANSI/API RP 1173) is Released

Posted in Incident Response, Integrity Management, Operation & Maintenance, PHMSA, Recordkeeping

The American Petroleum Institute (API) announced today the release of a new pipeline safety management system standard, ANSI/API Recommended Practice 1173.  The standard has been under development since NTSB recommended that a safety management system (SMS) standard be developed for the pipeline industry in 2012, in its report following the 2010 oil pipeline accident in Marshall, Michigan.  RP 1173 was developed by API with input from NTSB, PHMSA, states, and industry representatives.  After the draft standard was issued for public comment in early 2014, PHMSA held a series of public workshops (see prior posts on the February and July 2014, and April 2015 workshops), bringing together representatives from pipeline industry sectors, state and federal regulators, and public safety advocates to discuss SMS best practices.

Continue Reading

New Pipeline Construction Issues: U.S. Fish and Wildlife Service Considers Allowing Incidental Takes Under the Migratory Bird Treaty Act

Posted in Administrative Rulemaking, Construction & Design, Enforcement, Environmental

Construction of new pipeline (especially gas) or other energy infrastructure often encounters issues arising from the Migratory Bird Treaty Act (MBTA or Act).  The U.S. Fish and Wildlife Service (FWS or the Service) recently announced  its intent to evaluate the potential environmental impacts of a proposal to authorize incidental takes of birds under the MBTA.  Such evaluation is required under the National Environmental Policy Act (NEPA) for any proposed agency action with the potential to significantly affect the environment.  The FWS proposes a multi-faceted approach to regulating the incidental take of migratory birds, including:

  • Issuance of general incidental take authorizations for certain hazards to birds associated with particular industry sectors;
  • Issuance of individual permits authorizing incidental takes in the context of particular projects or activities; and
  • Development of memoranda of understanding with federal agencies, authorizing incidental takes from those agencies’ operations and activities.

Continue Reading