DOT Pipeline Compliance News

October 2013 Issue

In This Issue

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PHMSA Final Rules for Administrative Civil Penalty Maximums, Requests for Specific Information, Informal Hearing Procedures, and Technical Corrections

[Docket No. PHMSA 2012-0102]

PHMSA published final rules to update the administrative civil penalty maximums for violation of the pipeline safety regulations, provide for requests for specific information (RSI) at any time, rather than only pursuant to an inspection, changes in informal hearing procedures and various technical corrections. The new rules are effective October 25, 2013 and implement the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (the “2011 Pipeline Safety Act”) as well as make other corrections.

PHMSA believes that the amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators.

See related article on the original NPRM in September 2012 edition of the DOT Pipeline Compliance Newsletter.

Requests for Specific Information (RSI)

• An RSI can be issued by PHMSA at any time, not only pursuant to an inspection.
• An RSI has a default response time of 30 days (shortened from 45 days) or the time specified in the RSI (which can be shorter or longer).

Inspections and Investigations

• Operators must provide all reasonable assistance in investigation of an accident or incident and make all records and information available.
• Any person who obstructs an investigation can be subject to administrative civil penalties.
• Operators are required to respond to requests for further information for inspections and investigations within 30 days, unless another deadline is specified.
• An operator may request an extension to the deadline, however, such a request must be in writing and specify the specific need for the extension and propose an alternative deadline.

Administrative Civil Penalties

• The maximum administrative civil penalties for violations are increased to $200,000 for each day the violation continues, not to exceed $2,000,000. These penalties were originally $100,000 per day, not to exceed $1,000,000.
• PHMSA will no longer consider the ability of an operator to pay a penalty when assessing penalties.
• PHMSA stated that it does not negotiate civil penalties and intentionally did not include civil penalties in the regulations for consent orders.

Corrective Action Order Expedited Review Procedure

• The Associate Administrator may issue a Corrective Action Order (CAO) without notice and hearing if the failure to do so would result in the likelihood of serious harm to life, property or the environment.
• An owner or operator must notify PHMSA of a request for expedited review of a Corrective Action Order issued without notice within 10 days of receipt of the CAO.
• The expedited review hearing should be held within 15 days of receipt of the request for hearing.
• The Presiding Official should submit the recommendation of decision on expedited review within five days of the hearing.
• The Associate Administrator will terminate the CAO when Associate Administrator determines that the facility is no longer hazardous to life, property or the environment. PHMSA may still issue a NOPV after the termination of the CAO.
• PHMSA withdrew its proposal to permit filings of petitions for reconsideration on CAOs

Notice of Probable Violation (NOPV)

• PHMSA can now issue an NOPV for probable violations of certain regulations of onshore facility response plan requirements under the Federal Water Pollution Control Act.
• An operator may request the violation report at any time following receipt of the NOPV, and PHMSA must provide the report within five business days.
• An operator may contest a NOPV in writing or with a hearing.

Warnings

• The regulations are clarified to provide that operators may submit written response to warnings.
• However, PHMSA does not and will not make subsequent findings about the warning and will only note the response in the file.

Informal Hearing Procedures

• The informal hearing procedures apply to hearings requested for civil penalty assessments, compliance orders, orders directing amendment, safety orders and corrective action orders.
• PHMSA added definitions for case files for these enforcement matters and specifically provides what information is included in the case file. PHMSA made this change because of industry comments requesting that operators have sufficient time to review the evaluation and recommendation submitted by the Regional Director.
• The Presiding Official in an informal hearing may not be engaged in investigative or prosecuting functions.
• PHMSA has also prohibited ex parte (communications by one side without the presence of the other side) communications with the Presiding Official (or the attorney drafting the recommended decision). Parties may communicate ex parte only about scheduling or other procedural issues.
• PHMSA declined industry requests for a target deadline for a decision after a hearing. PHMSA states that it has internal processes to ensure timely decisions. If a “substantial delay” is expected, PHMSA must give notice of the expected decision date.
• PHMSA withdrew the proposal rule to make motions for reconsideration mandatory prior seeking judicial review.

Requests for Informal Guidance

• Any requests for informal guidance should be routed through Office of Pipeline Safety (OPS). Requests for informal guidance should no longer be sent to the Office of Chief Counsel (OCC).
• The regulations no longer provide that messages will receive a response by the next business day, since PHMSA was not always meeting this deadline.

For a copy of this Final Rule, contact Jessica Roger.

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PHMSA Publishes Hazardous Liquid Integrity Management Enforcement Guidance

The Pipeline and Hazardous Liquids Safety Administration has recently posted the enforcement guidance document for hazardous liquid pipeline integrity management. The enforcement guidance documents are used by PHMSA staff during an inspection of an operator’s integrity management program. This provides information on the actual code requirements and lists any applicable interpretations, guidance and examples of violations for each section of the hazardous liquid pipeline integrity management regulation.

For a copy of this enforcement guidance, contact Jessica Roger.

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PHMSA Notice, Information Collection Request, National Pipeline Mapping Program

[Docket No. PHMSA-2013-0137]

The Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice announcing that the renewal of the Information Collection Request regarding the annual update of information for the National Pipeline Mapping Program is being forwarded to the Office of Management and Budget (OMB) for review and approval.

Each operator of a pipeline facility (except distribution lines and gathering lines) must provide contact information and geospatial data on their pipeline system. This information should be updated on an annual basis. The provided information is incorporated into the National Pipeline Mapping System (NPMS) to support various regulatory programs, pipeline inspections, and authorized external customers. The periodic updates of operator pipeline data inform the NPMS of any changes to the data over the previous year and allow PHMSA to maintain and improve the accuracy of the information.

A Federal Register Notice (78 FR 36016) with a 60-day comment period soliciting comments on the information collection was published on June 14, 2013. During the two-month response period for the information collection renewal, PHMSA received one comment from the Pipeline Safety Trust. This 30-day notice responds to the comments, which may be found at http://www.regulations.gov at docket number PHMSA-2013-0137.

PHMSA is publishing this notice to respond to the comment, provide the public with an additional 30 days to comment, and announce that the revised Information Collection will be submitted to the OMB for approval. Comments are invited on:

• whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department’s estimate of the burden of the proposed information collection;
• ways to enhance the quality, utility and clarity of the information to be collected; and
• ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

Send comments to the OMB, Attention: Desk Officer for PHMSA, 725 17th Street NW, Washington, DC 20503. Comments must be submitted on or before October 18, 2013.

For a copy of this PHMSA Notice, contact Jessica Roger.

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PHMSA Class Location Requirements – extension of comment period

[Docket No. PHMSA–2013–0161]

On August 1, 2013, PHMSA published a notice of inquiry in the Federal Register on “Class Location Requirements,” seeking comments on whether integrity management program (IMP) requirements, or elements of IMP, should be expanded beyond high consequence areas (HCA) and, with respect to gas transmission pipeline facilities, whether applying IMP requirements to additional areas would mitigate the need for class location requirements. (See related article in the August Edition of the DOT Pipeline Compliance News.)

PHMSA has received two requests to extend the comment period to allow stakeholders more time to evaluate the notice of inquiry. PHMSA concurs with this request and is extending the comment period from September 30, 2013, to November 1, 2013. You may submit comments identified by the Docket ID PHMSA–2013–0161 via the E-Gov Website.

For a copy of this notice extending the comment period, contact Jessica Roger.

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EPA Proposed Rulemaking & Draft Study for Comments

[Docket ID # EPA-HQ-OA-2013-0582]

On September 17, 2013, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a joint proposed rule with the intent to clarify which streams, wetlands and other waters are “waters of the United States” and subject to jurisdiction under the federal Clean Water Act (CWA). The agencies sent the proposed rule to the White House’s Office of Management and Budget (OMB) but have not yet released it to the public. This draft rulemaking is likely to expand the Clean Water Act Jurisdiction.

The proposed rule is limited to clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions; it does not propose changes to existing regulatory exemptions and exclusions, including those that apply to the agricultural sector that ensure the continuing production of food, fiber and fuel to the benefit of all Americans. Specifically, EPA and the Army Corps are interested in enhancing the ability of the CWA and USDA’s conservation programs to work in tandem to protect water quality and improve the environment by encouraging expanded participation in conservation programs by farmers and ranchers. It will do so by providing greater clarity on which waters are not subject to CWA jurisdiction and greater certainty on which activities do not require CWA permits.

Current activities and waters falling under existing agricultural exemptions from Clean Water Act jurisdiction or permitting:

Exemptions from Clean Water Act permitting continue for:

• Agricultural stormwater discharges.
• Return flows from irrigated agriculture.
• Normal farming, silvicultural, and ranching activities.
• Upland soil and water conservation practices.
• Construction and maintenance of farm or stock ponds or irrigation ditches.
• Maintenance of drainage ditches.
• Construction or maintenance of farm, forest, and temporary mining roads.

Exclusions from Clean Water Act jurisdiction continue for:

• Prior Converted Cropland, including the role of USDA.
• Waste Treatment Systems.

The proposed rule submitted to OMB for review includes exclusions from Clean Water Act jurisdiction for:

• Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
• Artificially irrigated areas that would be dry if irrigation stops.
• Artificial lakes or ponds used for purposes such as stock watering or irrigation.
• Areas artificially flooded for rice growing.
• Artificial ornamental waters created for primarily aesthetic reasons.
• Water-filled depressions created as a result of construction activity.
• Pits excavated in uplands for fill, sand, or gravel that fill with water.

In support of the proposed rule, the agencies have released a draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.”” The Draft Study is a compilation of independent peer-reviewed scientific literature that when finalized, is intended to provide the scientific basis for the agencies to clarify CWA jurisdiction through the rulemaking process.

The EPA – through the independent Scientific Advisory Board (SAB) – is soliciting public comment on this Draft Study until October 31, 2013, and has announced that it will hold public meetings on December 16-18, 2013, in Washington, D.C. Comments can be submitted using the E-Gov website and enter Docket ID # EPA-HQ-OA-2013-0582.

For a copy of the draft study, contact Jessica Roger .

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Illinois Pipeline Regulation Update

[37 Ill. Reg. 15336]

On September 30, 2013 the Illinois Commerce Commission published an update to their rules in Title 83 Chapter I Part 590. In addition to the sections of 49 CFR Part 191 that were incorporated by reference in January 1, 2011, the Commission incorporated 49 CFR Section 191.12 and 191.22 as of January 1, 2013. The Commission also added a new section 590.20 entitled Submission of Federal Reports to the Commission. This regulation required each individual who engages in the transportation of gas or who owns or operates pipeline facilities to file any report sent to PHMSA under 49 CFR 191.11, 191.12, 191.13 and 191.25 with the Commission. These updates are effective September 10, 2013.

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NAPSR Compendium of State Pipeline Safety Requirements, 2nd Edition

The National Association of Pipeline Safety Representatives (NAPSR) released the revised “Compendium of State Pipeline Safety Requirements & Initiatives.” The purpose of this report is to highlight the hundreds of areas where actions have been taken to improve pipeline safety improvements throughout the country and to showcase the many different areas of focus. State pipeline safety managers are comparing the safety measures used in other states that go beyond federal safety minimum standards. The report includes pipeline safety FAQ’s, state pipeline safety website links, and detailed descriptions of:

• Safety initiatives by category
• Safety initiatives by state (Direct referencing of 49 CFR 192)
• Key statistics by state
• State requirements that exceed federal regulation

The National Association of Regulatory Utility Commissioners (NARUC) Executive Committee has reviewed and endorsed this report and contributed through their individual submissions of comments as well as their assistance with the publication of this compendium.

For a copy of the report, click here.

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CGA DIRT Report for 2012 | Vol. 9 Released September 2013

The Common Ground Alliance (CGA) has issued its Damage Information Reporting Tool (DIRT) Report for 2012, providing a summary and analysis of the pipeline damage, near miss, and downtime events that occurred in 2012. The DIRT Report identifies the importance of calling 811 as most critical to safety. The DIRT report for 2012 includes the following additional areas of analysis:

• Census Division Breakdown
• Comparison to National Data Set – 811 Awareness Statistics
• Exemption Analysis

The DIRT Report is a summary of utility damage data submitted anonymously from facility operators, locators, one-call centers, and regulators. The report gives us the opportunity to not only understand the root causes of damages, but to measure the effectiveness of damage prevention efforts and campaigns. DIRT offers insight on equipment used, type of work being performed, one-call notification, the effects of one-call exemptions, and regional differences.

The complete DIRT Annual Report for 2012 is available for download at the CGA website.