[Docket No. PHMSA-2022-0004]
On January 28, 2022, PHMSA published its requirements for operators to apply for Pipeline Safety Enhancement Programs (PSEPs). PSEPs were established by Section 104 of the PIPES Act of 2020 to allow operators and PHMSA to evaluate innovative technologies and operational practices, providing more robust protection of public safety and the environment than the existing pipeline safety regulations (PSR) governing natural gas and HL pipeline facilities. Each PSEP must incorporate innovative safety technologies and operational practices improving the reliability, accuracy, durability, or certainty of pipeline safety technologies, techniques, or methods. Safety measures for a proposed PSEP must be designed to achieve, and will be evaluated by PHMSA to ensure, a level of safety that is greater than the level of safety required by either 49 CFR part 192 for natural gas pipelines or 49 CFR part 195 for HL pipelines, as applicable. This standard exceeds the minimum level of safety that is required for issuance of a special permit, as described in 49 CFR 190.341(d)(2). PHMSA will only waive safety regulations in either 49 CFR part 192 or part 195 that would otherwise prevent the use of the safety technology or operational practice to be tested.
Pipeline owners and operators (collectively, operators) may only apply for a PSEP through December 21, 2023. A PSEP shall not exceed a duration of three (3) years after the approval date. Pipeline facilities located in, or which could affect, HCAs and USAs are prohibited from PSEPs. The amount and percentage of an operator’s regulated pipeline mileage in a PSEP is also limited (lesser of 1,000 miles or 38%).
Applications must identify the specific provisions of the PSR for which a waiver is sought and describe the safety technology or operational practice that the applicant is proposing, including any research and development program that the technology or operational practice underwent. PSEP applications must include maps and a draft environmental assessment (DEA) in accordance with 49 CFR 190.341(c)(8), and must provide an analysis, consistent with principles set forth in DOT Order 5610.2C, of whether the proposed action will have disproportionately high and adverse human health or environmental effects on minority and low-income populations. Such analysis must include demographic information about the community within a half-mile vicinity on each side of the pipeline and past the pipeline endpoints of the relevant site(s). The applicant must use the U.S. Environmental Protection Agency Environmental Justice mapping and screening tool called EJSCREEN for its environmental justice analysis. PHMSA will provide, on request, an example environmental assessment, a template, and the environmental justice information requirements for applicants to use in generating and submitting a DEA.
Applications must describe each operator’s safety management system (SMS) for all its 49 CFR part 192 and 49 CFR part 195 regulated pipelines. Identify the SMS procedures that would be applicable to the PSEP to include any processes and procedures that provide a framework to disclose and manage risk, promote a learning environment, and continuously improve pipeline safety and integrity. Applications must also include the accident and incident record of the operator for the past 10 years.
PHMSA will review each DEA to ensure it complies with the National Environmental Policy Act (NEPA), and will analyze applications for potential risks to public safety and impacts to the environment. Prior to PHMSA approving each PSEP application, PHMSA will publish a notice in the Federal Register and solicit comments on the PSEP application. PHMSA will assign a docket number in the Federal Docket Management System (FDMS) located at www.Regulations.gov for each PSEP application. The docket will include the Federal Register notice alerting the public of the application and will include all other pertinent documents for public review, including public comments. The comment period will be for a minimum of 90 days for each PSEP application. Comments received after the closing date will be evaluated if it is possible to do so without incurring additional expense or delay. PHMSA will publish its decision on whether to grant or deny the proposed PSEP application in the docket for that application. PHMSA may, in granting a PSEP application, impose such conditions as PHMSA determines are appropriate. The effective date of a PSEP will not be made retroactive to a date preceding the publication date of PHMSA’s decision.
Operators must submit to PHMSA detailed findings and an annual report with a summary of data collected as a result of participation in the PSEP. PHMSA will make the annual report for each ongoing testing program available to the public on PHMSA’s website (at www.phmsa.dot.gov/pipeline/special-permits-state-waivers/special-permits-and-state-waivers-overview) and in the corresponding FDMS located at www.Regulations.gov.
PHMSA shall immediately revoke a PSEP in some situations, and such revocations will not be subject to the “show cause” process for special permits set forth in 49 CFR 190.341(j)(2). PHMSA may, in the event of a violation of a PSEP’s terms and conditions, pursue enforcement action as contemplated by 49 CFR 190.341(m).
PHMSA will submit a report to Congress at the conclusion of each PSEP and make those reports available to the public on PHMSA’s website. PHMSA may subsequently undertake rulemakings to revise the PSR to accommodate promising technological and operational practices evaluated in PSEPs.
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