In response to a string of recent accidents and subsequent investigations regarding the shipment of crude oil by rail, DOT issued an Emergency Order on February 25, 2014, requiring that crude shipped by rail be tested and properly classified prior to shipment.
Continue Reading DOT Emergency Order Affects Crude Shipments by Rail

Creating a record in PHMSA enforcement actions is an important step toward protecting and preserving the legal rights of pipeline owners and operators.  If an operator seeks judicial review of the Agency’s final decision in an enforcement action, the administrative record will be a key component of the case.  The Pipeline Safety Act requires that any request for judicial review of final agency action be brought in a federal court of appeals.  Such courts do not hear witnesses or find facts; they rely solely on the administrative record presented, and the briefs and legal arguments of counsel.  For that reason, the written transcription of any administrative enforcement hearing is likely to be an essential part of that record.  Just a few months since PHMSA promulgated revisions to its procedural regulations at 49 C.F.R. Part 190 (see prior pipelinelaw alert), the Agency has indicated if an operator wishes to have a hearing transcribed, it must arrange for a court reporter to be physically present to transcribe the proceedings.  This is a new interpretation of PHMSA regulations, and one that was not clearly articulated in the Agency’s rulemaking preambles.  Final Rule, 78 Fed. Reg. 58897 (Sep. 25, 2013); NPRM, 77 Fed. Reg. 48112 (Aug. 13, 2012).

Continue Reading Creating a Record for Enforcement Hearings: New PHMSA Policy Mandates Use of Court Reporters

The most recent amendments to the Pipeline Safety Act became effective two years ago. Those amendments called for new studies and rulemaking, on issues ranging from verification of MAOP/MOP, potential changes to the identification of HCAs and/or Class Locations, new construction oversight, water crossing standards, and more.
Continue Reading Pipeline Law: The Year Ahead

PHMSA has issued a final rule making several significant changes to the Agency’s enforcement procedures. See attached Federal Register pre-publication release of PHMSA Final Rule (Sept. 24, 2013). While this rule purports to comply with various Congressional mandates set forth in the 2012 amendments to the Pipeline Safety Act, it effectively increases and establishes some new Agency enforcement tools.
Continue Reading PHMSA Promulgates Final Rule Regarding Agency Enforcement Procedures

In a decision that has significance to hazardous liquid pipeline operators nationally, PHMSA has denied a Petition for Reconsideration of a matter involving an oil tank overflow incident at a Buckeye facility that occurred in 2005.  The oil was contained within a diked area, and promptly cleaned up.  The next day a state environmental official requested removal of some additional soil, which caused response costs to slightly exceed the $50,000 reporting threshold established in PHMSA rules, at Parts 195.50 and 195.52.  The operator promptly reported the incident to the National Response Center (NRC) as soon as these reporting obligations were met.

Continue Reading PHMSA Rules That Releases Must Be Reported Before They Are “Reportable”

PHMSA has published a Notice of Proposed Rulemaking (NPRM) including numerous proposed amendments to 49 C.F.R. Part 190 with regard to PHMSA enforcement and administrative procedures in order to conform the Agency’s regulations with various requirements of the Pipeline Safety Act Reauthorization amendments that were signed into law on January 3, 2012, as well as

On June 11, 2012, the Energy Bar Association (EBA) hosted a panel regarding new developments in PHMSA enforcement and compliance.  The panelists included, among others, Vanessa Allen Sutherland (PHMSA Chief Counsel), Ben Fred (PHMSA Hearing Officer), and Rod Dyck (PHMSA Director, Office of Enforcement).  Notable discussion topics included: (1) PHMSA’s forthcoming rulemaking regarding administrative enforcement

The President’s 2013 Budget requests an increase of nearly $67 million, for a total $177 million, for the Pipeline and Hazardous Materials Safety Administration (PHMSA) and specifically pipeline safety. This requested increase is in support of the President’s Pipeline Safety Reform initiative: to expand the number of inspectors by 120 in order to provide increased