To assist those who struggle to keep up with the rules as they change, and whose minds are quickly blown by double and triple negatives, below is a handy summary for our readers of the currently available “discretionary enforcement” items from PHMSA:
1. December 6, 2022
PHMSA issued a discretionary enforcement on December 6, 2022, for the final rule published August 24, 2022, in 87 FR 52224 for nine additional months from May 24, 2023, to February 24, 2024, subject to the exceptions below. The delay of enforcement covers operators of existing onshore gas transmission pipelines already in-service as of August 24, 2022. PHMSA will issue guidance to aid these operators in their compliance with the Final Rule during the 9-month enforcement delay. PHMSA will enforce provisions in §192.917(b) and §192.13(d) and all Final Rule provisions for pipelines that were new or replaced after August 24, 2022.
2. April 17, 2023
The previous enforcement discretion (Dec. 6, 2022) now includes pipelines that entered into service between August 24, 2022 (including new construction or replacement projects on existing lines) and the end of the discretionary timeframe of February 24, 2024. PHMSA will also not enforce updated O&M manuals to account for those provisions that do not otherwise require operator action before that time. PHMSA will enforce provisions in §192.917(b) and §192.13(d). Compliance is also required for §§192.319, 192.461, and 192.613 which provide important corrosion control requirements to take during construction and processes following an extreme weather event or natural disaster.
3. April 20, 2023
The following enforcement discretion is for pipeline operators who, despite their efforts, are having issues completing remedial actions for §192.473(c)(4) within the 15-month compliance period. PHMSA will refrain from enforcement actions resulting from delays with remediation provided the operator has notified PHMSA prior to the deadline passing who has made timely applications with diligent pursuit if any of the following are true:
- Permits have been delayed,
- Access to rights-of-way have not been granted; or,
- Subsequent survey findings require further remediation.
Operators will have to complete the remediations as soon as possible, but not to exceed 6 months from the receipt of any such delayed permits or access rights. The discretion of enforcement will last until the future rulemaking is complete.