On March 20, 2020, the Pipeline and Hazardous Materials Safety Administration (PHMSA) Office of Pipeline Safety issued a Notice to gas and hazardous liquid pipeline, underground natural gas storage and liquefied natural gas (LNG) facility operators, as well as PHMSA state partners, explaining that it will stay enforcement of certain PHMSA pipeline safety requirements in light of the President’s March 13, 2020, Declaration of National Emergency relating to COVID-19. The Notice acknowledges that operators may have limited personnel resources in light of the COVID-19 National Emergency and may need to take actions to meet ongoing operational and maintenance needs in a manner that “may not fully meet federal operator qualification (OQ), control room management (CRM), and employment drug testing requirements.”
In light of these circumstances, the Notice explains that PHMSA “does not intend to take any enforcement action with regard to OQ and CRM requirements, and will consider exercising its enforcement discretion with regard to Part 199 drug testing requirements.”
Specifically, the agency is “taking into consideration the exigent circumstances” due to COVID-19 that may cause operators to be unable to comply with:
- Operator Qualification Requirements. PHMSA cites the entirety of the subparts of its regulations setting forth OQ requirements for interstate natural gas and hazardous liquid pipelines and LNG facilities (49 C.F.R. Parts 192, Subpart N; 193, Subpart H; and 195, Subpart G), except for one provision in Part 193 for LNG facilities that requires operators to follow a written plan to “verify that personnel assigned operating, maintenance, security, or fire protection duties at the LNG plant do not have any physical condition that would impair performance of their assigned duties.” 49 C.F.R. § 193.2711. Operators’ plans “must be designed to detect both readily observable disorders, such as physical handicaps or injury, and conditions requiring professional examination for discovery.” Id.
- Control Room Management. PHMSA cites Part 192 and Part 195 CRM requirements related to fatigue mitigation and controller training. The cited fatigue mitigation provisions require operators to establish a maximum on controller hours of service in order to reduce risks to pipeline operations associated with controller fatigue, with emergency deviations from the maximum limit allowed “if necessary for the safe operation of a pipeline facility.” 49 C.F.R. §§ 192.631(d)(4); 195.446(d)(4). The training provisions require operators to establish a controller training program that includes, among other things, “[c]ontrol room team training and exercises that include both controllers and other individuals . . . who would reasonably be expected to operationally collaborate with controllers (control room personnel) during normal, abnormal or emergency situations.” Id. at §§ 192.631(h); 195.446(h).
PHMSA also explains that it will consider using its enforcement discretion and encourages operators to use built-in compliance flexibilities with respect to the following:
- Drug Testing. PHMSA encourages operators to “fully use the flexibilities already afforded by part 199 regarding pre-employment and random drug testing,” noting that operators are permitted under Part 199 to “schedule the date, time and location of the pre-employment drug test” and to spread required random drug testing throughout the calendar year. The agency specifically states that it will consider using its enforcement discretion with regarding to pre-employment and random drug testing requirements found at 49 C.F.R. § 199.105(a) and (c). The Notice does not, however, reference an intent to use enforcement discretion with respect to other types of drug testing, such as post-accident, reasonable cause or return-to-duty testing. It also does not mention the alcohol testing requirements at 49 C.F.R. § 199.225.
- Other Requirements. In addition to the OQ, CRM and drug testing requirements noted above, PHMSA acknowledges that there may be other federal pipeline safety requirements that pose compliance challenges for operators during the COVID-19 National Emergency and that the agency will exercise its enforcement discretion with respect to these other requirements. The agency’s intent in exercising such discretion is to provide operators the flexibility to “maintain normal operations while ensuring public safety and protection of the environment.”
For operators who are unable to meet regulatory requirements due to COVID-19 issues, maintaining adequate documentation of compliance decisions will be important. The Notice explains that operators who are unable to comply with regulatory requirements “should maintain documentation explaining what specific requirements are not being met, how the non-compliance is related to COVID-19, and what alternative measures are being taken to ensure safety.” It also instructs operators under these circumstances to “communicate promptly” with their regulator.
Finally, PHMSA explains that, where pipeline operators are unable to comply with state regulations equivalent to the federal regulations for reasons related to COVID-19, it will not object to waivers, special permits, stays of enforcement or other similar measures granted by state authorities. The Notice was issued a day after the agency issued guidance for state pipeline safety agencies regarding implementation of state programs in the midst of the COVID-19 crisis.
The Notice became effective on March 20, 2020, and will remain in effect until further notice or modification by the PHMSA Associate Administrator for Pipeline Safety. Notably, PHMSA explains that nothing in the Notice prohibits it from rescinding the stay of enforcement or enforcing the regulations outlined above “if it determines that a significant safety issues or other circumstances warrants doing so.”