Consistent with E.O. 14156, PHMSA has announced a limited exercise of enforcement discretion and statement of policy for issuing special permits in response to the national energy emergency. Specifically, OPS will refrain from taking any enforcement action against a regulated party who defers the performance of an activity that would otherwise be required under the Federal pipeline safety regulations if:
- The regulated party demonstrates that performing the required activity would contribute to the national energy emergency by adversely impacting the transportation of energy in and through the West Coast of the United States, Northeast United States, and Alaska, including by increasing energy prices for American consumers, particularly those living on low- and fixed-incomes; reducing the domestic supply of affordable and reliable energy; or impairing the integrity and expansion of the nation’s energy infrastructure;
- The regulated party demonstrates that deferring the performance of the required activity will not create an unreasonable risk to public safety, property, or the environment, including, if necessary, through the implementation of alternative remedial measures; and
- The regulated party files an application for a special permit promptly, but no later than 45 days after determining that the required activity should not be performed in response to the national energy emergency.
PHMSA will prioritize the review of any application for a special permit that meets the above criteria. PHMSA will also refrain from taking any enforcement action against the party that would otherwise be subject to the applicable regulation until a final decision on the special permit is issued. Moreover, if the application for a special permit is denied, PHMSA will continue to refrain from taking any enforcement action for a reasonable period of time thereafter, so that the party who sought the waiver or exemption can take appropriate action to perform the required activity without incurring any additional enforcement risk.
Regulated parties may rely on this notice as a temporary safeguard from PHMSA regulatory enforcement as described herein. PHMSA recommends that its State partners exercise the same enforcement discretion described in this Notice. To the extent this Notice includes guidance on how regulated parties may comply with existing regulations, it does not have the force and effect of law and is not meant to bind the regulated entities in any way. Nothing herein prohibits PHMSA from rescinding this limited exercise of its enforcement discretion and pursuing an enforcement action if it determines that a significant safety issue warrants doing so. Nothing herein relieves operators from compliance with any other applicable provisions of Federal regulations or other law, and PHMSA reserves the right to exercise all of its other authorities.
RCP is positioned to assist pipeline operators who could be affected by this notice, including performing risk analysis and documenting alternative remedial measures, as well as facilitating the special permit request process. Contact Jessica Foley for more information.