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.
PHMSA issued an advisory to operators regarding the applicability of its safety regulations to idled, inactive and abandoned pipe. Congress directed PHMSA to issue such an advisory in the recent PIPES Act of 2016, in response to several high profile incidents involving idled pipe. While operators frequently refer to idled, decommissioned, mothballed and/or inactive pipe, PHMSA does not recognize those terms. In its advisory, the Agency explains that it considers pipelines to be either active and subject to all relevant safety regulations or abandoned (i.e. permanently removed from service). With respect to a pipeline that is “purged” of all combustibles but not yet formally abandoned, PHMSA confirms its current practice of accepting deferral of certain activities, including inline inspection, as long as deferred activities are completed prior to or as part of returning a pipeline to service. This is consistent with prior PHMSA guidance.
PHMSA announced that it will extend the comment period on its proposed gas rule by only 30 days, with comments due on or before July 7, 2016. Due to the scope and complexity of the proposal, numerous parties requested a 60 day extension of the comment period. In granting the 30 day extension, PHMSA noted that the proposal was made available to the public 3 weeks before its publication. That said, the Agency has still not posted information necessary to fully respond to the proposed rules in the rulemaking docket, such as the Agency’s class location report which is still under internal review within the Department of Transportation.
In addition to granting an extension for comments, the Agency committed to holding public webinars and briefings on the rule at two upcoming advisory committee meetings. The Spring 2016 Technical Advisory Committee meetings have not yet been officially scheduled, but they are anticipated to occur in May or June. Advance notice of the meeting date and additional specifics will be published in the Federal Register 15 days prior to the meeting.
The proposed rule would significantly expand regulations regarding transmission and gathering pipelines under 49 C.F.R. Parts 191 and 192. These proposals include: reporting requirements for all gathering pipelines regardless of whether they are regulated, routine testing and repair requirements outside of high consequence areas, material documentation and MAOP verification requirements, among others.
The extension of the comment will be formalized in a forthcoming Federal Register notice.
PHMSA’s expansive Natural Gas Notice of Proposed Rulemaking will be published in the Federal Register tomorrow, April 8, 2016. The Agency released a pre-publication version of its proposed rulemaking several weeks ago, but note that the Federal Register pre-publication version of what will be officially published tomorrow contains slight non-substantive differences from the Agency’s prior released version (e.g., capitalizations, movement of certain proposed revisions among subsections, etc.). The proposal significantly expands numerous requirements for gas transmission and gathering pipelines. Publication in the Federal Register triggers the start of the comment period, with comments due on or before June 7, 2016, unless an extension is granted. Due to the complexity and volume of the proposed changes, several industry trade groups already have requests pending for a 60 day extension of the comment deadline.
PHMSA has released a Notice of Proposed Rulemaking (NPRM or Notice) to substantially revise that Agency’s rules (at 49 CFR Part 192) for construction, operation and maintenance of natural gas pipeline systems. The Notice was made available to the public on March 17, 2016 (accompanied by a press release dated March 15, 2016). Public comments on the NPRM will be accepted for 60 days following publication of the Notice in Federal Register (the Notice has not been published yet).
Congress directed PHMSA to consider numerous new rules for natural gas pipelines in the 2011 reauthorization of the Pipeline Safety Act. That directive was made largely in response to several serious gas pipeline incidents in 2010 and 2011, including the San Bruno, California fatality incident. In addition, in 2011 the NTSB issued various recommendations to PHMSA as a result of its investigation of the San Bruno incident, including elimination of the “grandfather” clause and the requirement of a pressure test and spike test for all pre-1970 transmission lines, amending the integrity management rules so that pipelines with manufacturing and construction defects be subjected to a post-construction pressure test of 1.25 MAOP, and require that all transmission lines be configured to accommodate ILI, among others. The Agency has been criticized for taking nearly five years to fulfill its Congressional obligation and to respond to the NTSB recommendations, but both industry and citizen groups welcome the opportunity to finally be able to evaluate and comment on changes being proposed (as opposed to grappling with vague and uncertain advisory guidance).
Some issues anticipated to be addressed in the gas NPRM have been excluded (e.g., proposed elimination of class locations) or postponed for subsequent rulemakings (e.g., whether to mandate automatic shutoff valves (ASVs) and whether to regulate underground natural gas storage). Other proposals within the Notice are almost anti-climactic, such as phase out of the “grandfather clause” authorizing continued use without internal testing of pipelines constructed prior to 1970 largely because the majority of industry has already been making operational changes in anticipation of this change. In addition, the Notice includes proposals for inspection of pipelines within 72 hours following a weather event (a similar proposal was floated for liquid pipelines) and codifying of the Agency’s prior advisory regarding reporting of MAOP exceedances.
Some of the more significant proposals within the Notice include changes to the integrity management program, such as proposed revisions to: repair criteria for HCA pipeline segments to address crack defects; risk assessment and models; new proposed integrity assessment methods, selection and use of direct assessment methods; additional requirements to address corrosion threats; hydrostatic “spike” test requirements for crack or crack-like defects; and treatment of longitudinal seam weld pipe (would be considered stable threat only if pressure tested to 1.25 MAOP). The NPRM also proposes numerous non-integrity management requirements, including: expanding application of several IM program elements (assessment, periodic reassessment and repair criteria) to “moderate consequence areas” (pipelines near 5 or more buildings or right of way for interstate freeway, etc.) and class 3 and 4 locations; expanding the scope of regulated gathering lines; significantly increasing corrosion control requirements; and requiring material documentation and MAOP verification and testing requirements to class 3 and 4 locations and HCAs. In addition, the proposed rule would also codify the “traceable, verifiable and complete” standard that PHMSA issued in its post-San Bruno records advisory and require that all pipelines maintain a management of change process.
In short, this is an aggressive proposal which industry should carefully consider, and prepare and submit thoughtful comment. Hunton & Williams will continue to monitor and will post updates as appropriate.
PHMSA has issued a pre-publication copy of its much-anticipated Notice of Proposed Rulemaking (NPRM) concerning hazardous liquid pipeline safety issues. These proposed rules were prepared in response to certain Congressional mandates under the 2011 amendments to the Pipeline Safety Act as well as critiques from GAO and NTSB. This appears to be one of PHMSA’s most ambitious rulemakings to date, and is likely to generate significant comment from industry. The Agency issued the proposal after two recent Senate hearings on pipeline safety, and as Congress prepares to consider reauthorization of the Pipeline Safety Act. Comments are due by January 8, 2016.
In response to comments and concerns from industry stakeholders, PHMSA recently revised its National Pipeline Mapping System (NPMS) information collection proposal that was issued over a year ago. Operators and industry members expressed concern in particular about the cost and time necessary to submit additional pipeline attributes as well as the sensitive nature of certain data. In response, the Agency reduced the number attributes it proposes to collect by a quarter, proposed to restrict access to certain sensitive security information, and outlined a three year phase-in period for the new attributes. While this represents an improvement from PHMSA’s initial proposal, many in the industry argued at a recent workshop that it is still unduly burdensome.
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.
PHMSA has published a Notice of Proposed Rulemaking (NPRM), proposing various changes to the natural gas pipeline safety regulations (49 C.F.R. Part 192) to address regulatory requirements involving plastic piping systems used in gas services. Comments on the proposal are due July 31, 2015.
PHMSA extended the comment period for its recent proposed expansion of information that operators must submit to the National Pipeline Mapping System (NPMS). In response to an industry request for additional time, the Agency extended the comment period (which originally expired on September 29th) to December 1, 2014.