United States: PHMSA Implements Authority To Issue Emergency Orders

Last Updated: October 17 2016
Article by Levi McAllister and Pamela C. Tsang

Interim Final Rule allows the Pipeline and Hazardous Materials Safety Administration (PHMSA) to respond immediately to unsafe conditions or practices that pose an imminent hazard to public health and safety or to the environment.

On October 3, the PHMSA of the US Department of Transportation issued an Interim Final Rule to implement newly granted authority enabling PHMSA to issue industry-wide emergency orders without notice and comment in certain circumstances. Established by US Congress, the ability to issue emergency orders is a substantial expansion of PHMSA's authority.

As permitted by Congress and contemplated in the regulations issued in the October 3 Interim Final Rule, PHMSA is able to respond immediately to violations of pipeline safety laws or unsafe conditions or practices that constitute or cause an imminent hazard to public health and safety or to the environment. PHMSA is now able to impose emergency restrictions, prohibitions, and safety measures on owners and operators of gas or hazardous liquid pipeline facilities to address any violation of pipeline safety law, unsafe condition, or unsafe practice.


The Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act) reauthorized PHMSA's administrative oversight of the transportation of hazardous materials (including the operation, maintenance, and spill response planning of US natural gas and hazardous liquid transportation pipelines) for four additional years, until 2019. As we explained in our June 29 alert, the PIPES Act was a clear effort by Congress to expand and strengthen PHMSA's oversight authority and put in place measures that enable PHMSA to provide timely information about the status of its efforts required by federal statute. For example, the PIPES Act's provisions requiring PHMSA to create minimum standards for underground natural gas storage are particularly instructive because they reflect congressional concern for the number and magnitude of transportation (and storage) incidents that have occurred in recent years.

In addition to the issues identified in our June 2016 LawFlash, the PIPES Act also expanded PHMSA's existing enforcement authority to include issuing emergency orders to address imminent safety hazards that exist across a subset or larger group of owners or operators. Prior to the PIPES Act, PHMSA did not have the authority to address conditions or practices that affected more than a single pipeline owner or operator and that needed to be addressed immediately to protect life, property, or the environment. Instead, PHMSA could issue a Corrective Action Order to direct an owner or operator to suspend or restrict the use of its pipeline facilities or to perform a physical inspection, testing, repair, replacement, or other appropriate action. Alternatively, PHMSA could issue a Notice of Proposed Safety Order to notify an operator that a particular pipeline facility has a condition that poses pipeline integrity risk to public safety, property, or the environment and to propose specific measures the owner or operator must undertake to address the risk.

Emergency Orders

With its new authority, PHMSA can issue emergency orders—without prior notice or an opportunity for a hearing—that will affect multiple owners and operators. PHMSA can impose conditions, restrictions, prohibitions, and/or safety measures on a subset or a broader group of owners or operators, facilities, or systems if it determines that a violation, an unsafe condition or practice, or unsafe conditions or practices constitute imminent hazard or are causing imminent hazard.1

Emergency orders will enable PHMSA to address time-sensitive safety conditions that pose a threat to life, property, or the environment that may occur before formal proceedings are likely to be completed. PHMSA specifically stated that a variety of circumstances could warrant such an order, and that PHMSA would (1) evaluate the specific facts of each situation to assess whether an imminent hazard exists; and (2) tailor each emergency order to address the specific imminent hazard under each circumstance presented. Notwithstanding, an illustrative list of three circumstances flagged by PHMSA include (1) a natural disaster that affects many pipelines in a specific geographic region; (2) discovery of a serious flaw in pipe, equipment manufacturing, or supplier materials; and (3) an accident that reveals that a specific industry practice is unsafe and needs immediate or temporary correction.

Before issuing an emergency order, PHMSA is required to consider the impact the emergency order will have on public health and safety, national or regional economy, national security, and the ability of owners and operators to maintain reliability and continuity of service. Emergency orders will be published in the Federal Register and posted on the Office of Pipeline Safety's website.

Procedures Following the Issuance of an Emergency Order

Entities subject to emergency orders are not without recourse. After PHMSA issues an emergency order, an affected party can file a petition for review. PHMSA is required to issue a decision on a petition for review within 30 days of receipt unless it issues a determination that an imminent hazard continues to exist. In that circumstance, the order would be extended, pending review of the petition. If PHMSA does not act on the petition within 30 days or issue a determination that an imminent hazard continues to exist, the emergency order would expire.

The petitioner can request a formal or informal hearing. If the petitioner requests an informal hearing, within 30 days of receiving the petition, the Associate Administrator for Pipeline Safety must issue an administrative decision, which will constitute PHMSA's final order.

If the petitioner requests a formal hearing, the Associate Administrator will assign the petition to the Office of Hearings to be assigned to an administrative law judge (ALJ). The ALJ can conduct settlement conferences and hearings, with discovery, and is required to issue a report and recommendation with factual findings and legal conclusions within 25 days of receipt. A party can file a petition for reconsideration of the ALJ's report and recommendation with the Associate Administrator within one day of the date the decision is issued. The Associate Administrator must issue a final agency decision on the petition for reconsideration within three days of service of the final pleading, but no more than 30 days after receipt of the petition for review. A party can seek judicial review of the final decision in district court.

Comments on Interim Final Rule

PHMSA is required by the PIPES Act to issue final regulations on or before March 19, 2017. Although PHMSA has issued an Interim Final Rule at this time, it will consider comments received concerning the Interim Final Rule as it crafts the final regulations. Comments are due within 60 days of the date the Interim Final Rule is published in the Federal Register.

As issued, the Interim Final Rule is expected to raise comments concerning the mechanics and feasibility of complying with a statutorily imposed 30-day time period for addressing challenges to an emergency order. For example, if an affected entity requests a formal hearing, an ALJ is to be assigned, allow parties to engage in discovery, conduct a hearing, and issue a report and recommendation—all within 25 days of the filing of the petition for review. Any petition for reconsideration of the ALJ's report and recommendation is due to be filed, briefed, and addressed by the Associate Administrator within five days (completing the petition for review process within the statutorily mandated 30-day timeframe).

It is unclear how the regulations in the Interim Final Rule will apply in practice, and commenters are likely to raise questions addressing this and other issues for PHMSA's consideration.


[1] "Imminent hazard" is defined as "the existence of a condition relating to a gas or hazardous liquid pipeline facility that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment." See 49 C.F.R. § 190.3 (2016).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions