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.

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.
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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.

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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.

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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.

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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)).

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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.

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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.

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White House Makes Long-Awaited Nomination for PHMSA Top Role

Posted in PHMSA, Policy

The White House announced that it has nominated Marie Therese Dominguez as the next PHMSA Administrator, the top position at the Agency.  PHMSA has been under the interim leadership of Acting Administrator Timothy Butters since October of last year, when former PHMSA Administrator Cynthia Quarterman stepped down.  The announcement of a nomination for Quarterman’s permanent replacement comes several weeks after the term of interim Agency leadership allowed under federal law had expired, and on the heels of a plea from several Senators to the Obama administration to nominate Quarterman’s permanent replacement.  Dominguez’s nomination must be confirmed by the Senate.

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How Will EPA’s New Definition of “Waters of the U.S.” Affect Oil & Gas Pipelines?

Posted in Administrative Rulemaking, Environmental, Federal/ State Legislation, Integrity Management, Policy

Amid considerable controversy, the U.S. EPA and Army Corps of Engineers (the agencies) issued a Final Rule on May 27, 2015, re-defining and expanding the definition of jurisdictional “waters of the U.S.” under the federal Clean Water Act.  That term affects the scope of activities requiring permits under Section 402 (NPDES) and Section 404 (wetland) programs, and it affects what releases or other incidents must be reported to the federal government and states.  Although the agencies claim the scope of the new rule is ‘narrower than existing regulations’ and would include ‘fewer waters’ in the jurisdictional reach of the CWA than under existing regulations, those statements are misleading, as illustrated by the maps EPA itself made available to Congress last year (under congressional pressure) to show the scope of the new “waters” definition.  Congress is already preparing legislation to send the rule back to the agencies for revision, and although President Obama is expected to veto that, several trade groups from various industries are also planning to challenge the new rule in court.  If the rule goes into effect, the oil and gas pipeline industry will surely be impacted, perhaps most keenly with respect to permitting for construction, maintenance and repair activities in or near “waters of the U.S.”

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