What’s Next For PHMSA Gas Gathering Rule with Keith Coyle

Attorney Keith Coyle provides an update on the latest progress in the PHMSA rulemaking process for the Gas Gathering Rule.

In this episode, you will learn about the importance of how gathering lines are defined, the impact of the recently-updated API RP 80 that provides additional guidance on how to define gathering lines, what type of gathering lines need to comply with the PHMSA safety requirements in 49 CFR 192, how the transition to a new administration will impact the timing of the rulemaking being finalized, and more topics. To listen to this podcast, click here.

Pipeline Policy — Last 4 Years, Next 4 Years with Keith Coyle

On a recent episode of Pipeliners Podcast, attorney Keith Coyle discusses insights on PHMSA rulemaking and how pipeline policy was affected by the previous four years, and how it might be affected in the next four years. To listen to this podcast, click here.

Pipeline Safety Alert – PHMSA Releases Enhanced Emergency Order Procedures

On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) published a Final Rule in the Federal Register updating its procedural requirements for issuing emergency orders (EO).  In 2016, PHMSA issued temporary regulations for issuing emergency orders in an interim final rule (IFR).  Unlike the process that ordinarily applies to PHMSA rulemakings under the Pipeline Safety and Administrative Procedure Acts, the Agency issued the temporary EO requirements without providing the public with prior notice or the opportunity to submit comments.  The final rule takes effect on December 2, 2019, and includes changes that the Agency deemed necessary based on comments submitted after the IFR.  Please read more about this Final Rule in this Alert.

DC Circuit Court of Appeals Upholds FERC Approval of Atlantic Sunrise Project

On August 2, 2019, the District of Columbia Circuit Court of Appeals upheld the Federal Energy Regulatory Commission’s (“FERC”) orders approving the construction and operation of Transcontinental Gas Pipe Line Company’s Atlantic Sunrise Project. The Atlantic Sunrise Project is an approximately 196.5 mile 1.7 Bcf/d pipeline spanning from northern Pennsylvania, across the Carolinas and into Alabama. The pipeline was originally approved by FERC in February of 2017 and went into service in the fall of 2018. Opponents of the project sought review of FERC’s orders permitting the pipeline’s expansion and operation.

Specifically, opponents asserted that the Commission: i) improperly conducted its environmental impact statement under the National Environmental Policy Act (“NEPA”); ii) failed to substantiate market need for the Project as required by the Natural Gas Act; and iii) denied them due process by authorizing construction to commence before the issuance of the Certificate Order could be judicially reviewed.

The D.C. Circuit found that FERC’s NEPA analysis was acceptable, and that FERC appropriately considered individual utility and the reasonableness of the pipeline route; substantiated the requisite market need; and that due process was not denied. The court also found that opponents made no claim that they were deprived of a meaningful opportunity to be heard as part of the FERC certificate process.

Ultimately, the Court denied the petitions for review and deferred to the Commission’s decision to approve the Atlantic Sunrise Project expansion and operation.

Alert: Trump Executive Order Puts Spotlight on DOT LNG Rules

On April 10, 2019, President Donald Trump signed an Executive Order on Promoting Energy Infrastructure and Economic Growth (Executive Order).  In addition to outlining U.S. policy toward private investment in energy infrastructure and directing the U.S. Environmental Protection Agency to take certain actions to improve the permitting process under the Clean Water Act, the Executive Order instructs the U.S. Department of Transportation (DOT) to update the federal safety standards for liquefied natural gas (LNG) facilities.  The Executive Order notes that DOT originally issued those safety standards nearly four decades ago and states that the current regulations are not appropriate for “modern, large-scale liquefaction facilities[.]”  Accordingly, the Executive Order directs DOT to finalize new LNG regulations within 13 months, or by no later than May 2020, an ambitious deadline given the complex issues involved and typical timeframe for completing the federal rulemaking process.

Please read more about this decision in this Alert.

Alert: Federal Court Enjoins West Virginia County from Using Zoning Laws to Interfere with Construction of Compressor Station

On August 29, 2018, the United States District Court for the Southern District of West Virginia issued a Memorandum Opinion and Order granting Mountain Valley Pipeline (MVP) summary judgment and permanently enjoining the County Commission of Fayette County, West Virginia, from using a zoning ordinance to bar construction of the Stallworth Compressor Station (CSS).  The CSS is a vital part of the 303.5-mile long, 42-inch diameter, MVP pipeline project stretching from Wetzel County, West Virginia, to Pittsylvania County, Virginia.  See Mountain Valley Pipeline v. Matthew D. Wender, et al., Case No. 2:17-cv-04377, Mem. Op. and Order (S.D. W. Va. August 29, 2018).

Please read more about this decision in this Alert.

OMB Declines to Approve PHMSA Proposal to Modify the National Pipeline Mapping System

On March 23, 2017, OMB concluded its review of PHMSA’s proposed expansion of the data collected under the National Pipeline Mapping System (NPMS).  OMB elected to reapprove the current information collection supporting NPMS and not the revisions proposed by PHMSA.  

In July 2014, PHMSA first issued a identifying 32 attributes the agency intended to collect from transmission operators in NPMS.  PHMSA also included a positional accuracy requirement proposing that operators submit the centerline location of each transmission pipeline with an accuracy level of +/- five feet.  In August 2015, PHMSA released a revised information collection proposal and scheduled a public workshop.  In June 2016, PHMSA released a <third revision reducing the number of requested attributes and settling on a positional accuracy requirement of +/- 50 feet for natural gas transmission operators in populated areas (Class 2, 3, 4, an HCA, identified site, or where there is one or more buildings intended for human occupancy) and +/- 100 feet for all other gas pipeline segments.  Operators of hazardous liquid pipelines would need to comply with the +/- 50 feet requirement for all pipelines.  Since PHMSA is proposing to make these changes through an information collection request (ICR), the agency sent the revised proposal to OMB for approval on June 22, 2016.  On March 23, 2017, OMB issued its decision to reapprove the previous ICR and not the revisions requested by PHMSA.  Operators will need to continue to comply with the current NPMS requirements.    

Please contact Brianne Kurdock at (202) 853-3462 or bkurdock@babstcalland.com, James Curry at (202) 853-3461 or jcurry@babstcalland.com, or Keith Coyle at (202) 853-3460 or kcoyle@babstcalland.com for more information.

Pipelines are safe. They already are the safest way to transport energy – and getting safer.

In a recent op-ed published in the Post-Gazette, “Gas Pipelines Represent Prosperity” (Sept. 5 Perspectives), David Spigelmyer and James Kunz of the Marcellus Shale Coalition described the many benefits Read more ›

Many Drone Operators Seeking a Waiver are Missing Required Information

On October 25, the FAA released a statement notifying potential applicants seeking a waiver from the small unmanned aircraft systems (UAS) rules of common errors in the application process.  In the two months since FAA started issuing waivers from the Part 107 rules, the agency has issued over 81 authorizations for flights in Class D and E airspace and 36 waivers of Part 107 requirements.  However, the agency has also denied many waiver applications on account of incorrect or incomplete information. The agency has denied 71 waiver requests and 854 airspace applications.  UAS operators that are seeking a waiver should ensure that they include a detailed description of how they intend to meet the performance based standards issued by FAA.  See previous Babst Calland Pipeline Safety Alert. For example, applicants seeking a waiver of the nighttime operation restriction must provide the methods for which the remote pilot will maintain visual line of sight during darkness; see and avoid other aircraft, people, and ground-based structures during nighttime operations; continuously determine the position of the UAS, and increase the visibility of the UAS at a distance of 3 statute miles unless a system is in place to avoid all non-participating aircraft.  Applicants must also respond promptly to any requests from the FAA for additional information.  If the FAA does not receive a response after 30 days, the agency will deny the waiver request.

The FAA also created the Unmanned Aircraft Safety Team (UAST), a group of industry and government stakeholders.  The UAST team is charged with analyzing data to enhance safety with drone operations.  The UAST held its first meeting in mid-October.

Babst Calland is assisting energy industry clients with rule implementation and strategy involving the use of small UAS. Please contact Brianne Kurdock at (202) 853-3462 or bkurdock@babstcalland.com, James Curry at (202) 853-3461 or jcurry@babstcalland.com, or Keith Coyle at (202) 853-3460 or kcoyle@babstcalland.com for more information.

PHMSA Releases Emergency Order Interim Final Rule

On October 14, the Pipeline & Hazardous Materials Safety Administration (PHMSA) published its Interim Final Rule (IFR) entitled “Pipeline Safety: Enhanced Emergency Order Procedures” in the Federal Register.  The agency had previously issued a pre-publication version of this rule on October 4.  See Babst Calland’s Pipeline Safety Alert.  PHMSA will use these new regulations to implement its emergency order authority conferred by Congress in the “Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016” (PIPES Act).  PHMSA may issue an emergency order to address an unsafe condition or practice, or a combination of unsafe conditions or practices that pose an imminent hazard to public health and safety or the environment.   The IFR contains administrative procedures that PHMSA must follow in determining if an imminent hazard exists, the factors that must be considered before PHMSA issues an emergency order, and the content of those orders, including a description of the persons subject to the restrictions, prohibitions, or safety measures and the standards and procedures for obtaining relief. The IFR also creates a process for administrative review of an emergency order that is largely patterned on the statutory text in 49 U.S.C. § 60117(o), including the referenced procedural rules for HazMat emergency orders in 49 C.F.R. § 109.19.

PHMSA may use this authority starting today, October 14.  Interested parties may file comments on this final rule until December 13, 2016.

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