Lawrence J. Bracken II, Michael S. Levine and Geoffrey B. Fehling

In today’s interconnected society, cyber breaches are inevitable. As the saying goes, it is not a matter of if, but when, an organization will be breached. This is particularly true for businesses in the energy sector, which is one of the most frequently targeted industries for cyber attacks. From producers to pipelines and refineries, energy companies’ computer systems are increasingly at risk of becoming the target of a sophisticated and targeted cyberattack, making cyber risk mitigation paramount.

See the full article, published in The American Oil & Gas Reporter, December 2017.

Recent months have seen the appointment and confirmation of top posts in key pipeline regulatory agencies, the Federal Energy Regulatory Commission (FERC) and the Pipeline and Hazardous Materials Safety Administration (PHMSA). While developments are generally good news for the pipeline industry—in that they are likely to mean expeditious project approvals and a clear chain of command at the agencies—the past few weeks have seen interesting departures from past practices, as discussed in more detail below.

Continue Reading Recently Confirmed FERC and PHMSA Leaders Push Forward Pipeline Projects and Bring Renewed Focus to Pipeline Safety

On September 15, 2017, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order in which it concluded that delays by the New York Department of Environmental Conservation (NYDEC or the Department) in processing Millennium Pipeline Company’s application for Clean Water Act (CWA) water quality certification constituted a waiver of the certification requirement. The order resolves a lengthy saga regarding water quality certification for Millennium’s Valley Lateral Project. It reaffirms previous FERC precedent establishing that the one-year waiver period for CWA water quality certification decisions by state agencies begins when  the state agency receives a written application for certification, regardless of the state agency’s determination that the application is incomplete or requests for further information.

Continue Reading FERC: Water Quality Certification Waiver Period for Pipeline Projects Begins Upon Receipt of a Written Request for Certification

As previously reported on PipelineLaw, the ongoing controversy over an April 2016 decision by the New York Department of Environmental Conservation (NYDEC or the Department) to deny a Clean Water Act (CWA) water quality certification to Constitution Pipeline Company (Constitution or the Company) for its interstate natural gas pipeline project in Pennsylvania and New York highlights tensions between federal and state oversight of such projects. In the latest chapter of this controversy, the Second Circuit recently denied Constitution’s petition for review of the NYDEC decision, concluding that (1) the Court lacked jurisdiction over the Company’s claims to the extent that they challenged the timeliness of the decision; and (2) the Department acted within its statutory authority in denying the certification, and its denial was not arbitrary or capricious.

Continue Reading Second Circuit Upholds State Veto of Constitution Pipeline Project Via Denial of Water Quality Certification

As reported in The Nickel Report, the United States Court of Appeals for the D.C. Circuit last week dismissed an interstate natural gas pipeline company’s challenge to the State of New York’s delay in issuing a water quality certification under section 401 of the federal Clean Water Act (CWA). The case is one of several pending across the country that involve a state’s authority to issue, deny, or waive a CWA water quality certification for interstate natural gas pipeline projects.

Click here to read the full post.

The state of Texas and the Texas Railroad Commission have petitioned the Fifth Circuit Court of Appeals to review PHMSA’s interim final rule regulating underground natural gas storage facilities.  As required by the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016, PHMSA published an interim final rule last December establishing minimum federal safety standards for underground natural gas storage facilities, which became effective in January.  Such facilities have come under increased scrutiny since the 2015 Aliso Canyon storage field leak that lasted almost four months.

Continue Reading Texas Challenges PHMSA Underground Natural Gas Storage Rule

A new Advisory on deactivation of threats for gas transmission lines was issued by PHMSA on March 15, 2017 (to be published in the March 16, 2017 Federal Register).  Amidst uncertainty about the fate of various proposed and final rules issued by PHMSA and other federal agencies under the new Administration due to the Regulatory Freeze Executive Memorandum of January 20, 2017 and other executive orders, PHMSA’s issuance of this clarifying guidance regarding minimum criteria for deactivation of integrity threats is notable.

Continue Reading Advisory on Deactivation of Integrity Management Threats

Citing concerns that intrastate and small gas transmission pipeline operators may not be accurately identifying high consequence areas (HCAs) as part of their integrity management programs (IMP), PHMSA issued yet another advisory to the industry on December 12, 2016.  In its seventh advisory issued this year, PHMSA explains the need for further guidance on the methodology based on recent inspections as well as a Safety Recommendation issued by the National Transportation Safety Board (NTSB) in 2015 (NTSB Recommendation P-15-06, issued in conjunction with the Board’s Safety Study of implementation of gas transmission integrity management rules).

Continue Reading Concerns about HCA Identification Methods Prompts Advisory

PHMSA has issued an interim final rule (IFR) to establish – for the first time ever – minimum federal standards for underground natural gas storage facilities.  The IFR imposes significant new requirements in a short timeframe for “downhole facilities,” including wells, wellbore tubing and casings at underground natural gas storage facilities.  The IFR addresses construction, maintenance, risk management and integrity management procedures for these facilities and incorporates the requirements of recent API industry Recommended Practices (RPs) 1170 for salt caverns storing natural gas and 1171 for storage in depleted hydrocarbon reservoirs and aquifer reservoirs.  In addition, the IFR requires underground gas storage operators to prepare and file annual reports, incident reports, safety-related condition repairs and register their facilities in the PHMSA operator registry.

Continue Reading Underground Natural Gas Storage Interim Final Rule Issued

PHMSA has rescheduled the public meetings of the Gas Pipeline Advisory Committee (GPAC) for January 11-12, 2017.  The purpose of these meetings is to discuss PHMSA’s proposed gas mega rule and the underlying regulatory analysis.  The meetings were previously scheduled for December 7-8, 2016, but have been rescheduled based on the availability of committee members and resources.

Continue Reading GPAC Public Meetings to Discuss PHMSA Gas Rule Rescheduled