United States: Pipeline Safety: PHMSA Releases New Rule On Emergency Authority

Last Updated: October 17 2016
Article by Kathryn B. Thomson and Robert S. Fleishman

On Monday, October 3, 2016, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released an interim final rule (IFR) establishing procedures to implement new imminent hazard authority created by the PIPES Act of 2016. The PIPES Act and PHMSA's new rule give the agency the authority – for the first time – to issue emergency orders to all or a segment of owners and operators of gas or hazardous liquid pipelines to abate an imminent hazard. This new tool is intended to augment PHMSA's existing authorities by giving the agency the ability to respond swiftly to conditions that pose a substantial threat to health and safety, like the recent natural gas leak at Aliso Canyon in California.

The IFR takes effect immediately upon publication in the Federal Register; however, the public will have 60 days from the date of publication to submit comments that will inform a final rulemaking. The IFR is currently available on the PHMSA site.

What's Notable About the PIPES Act?

President Obama signed the Protecting our Infrastructure of Pipelines and Enhancing Safety Act (the "PIPES Act") into law on June 22, 2016. The PIPES Act reauthorizes PHMSA's gas and hazardous materials pipeline program and is most notable for Section 16, which amends 49 U.S.C. § 60117 to provide PHMSA with new emergency authority to act immediately to abate an imminent hazard. Prior to the enactment of Section 16, PHMSA's authority to respond to pipeline incidents was limited to issuing (1) binding corrective action orders or safety orders to a specific pipeline facility or (2) non-binding safety advisories to relevant portions of the pipeline industry. PHMSA had no imminent hazard authority and no ability to take action to prevent conditions or practices that affect or pertain to more than one pipeline owner or operator. This stood in stark contrast to PHMSA's emergency authority to address imminent threats involving the transportation of hazardous materials ("hazmat") in other modes of transportation and constrained PHMSA's ability to take aggressive action to protect human health and safety in the pipeline sector.

Although Section 16 gives PHMSA important new authority, it reflects a carefully crafted compromise between members of Congress who wanted to provide PHMSA with emergency hazard authority to respond to incidents like Aliso Canyon and members who were concerned that PHMSA might not use such authority appropriately. The compromise language enacted into law gives PHMSA imminent hazard authority, but it also ensures that PHMSA must act reasonably and judiciously. Among other requirements in Section 16, PHMSA must consider three factors in determining whether to issue an emergency order: (1) "[t]he impact . . . on public health and safety"; (2) "[t]he impact, if any, on the national or regional economy or national security"; and (3) "[t]he impact . . . on the ability of owners and operators of pipeline facilities to maintain reliability and continuity of services to customers." PIPES Act Section 16, 49 U.S.C § 60117(o). The PIPES Act also requires PHMSA to consult with relevant federal and state agencies and "other entities knowledgeable in pipeline safety or operations" in considering the three factors set out above. Id. In addition, the PIPES Act requires that the emergency order must be in writing and that the order will cease to be effective if PHMSA fails to respond to an administrative petition for review within 30 days of its filing. Id. Finally, the PIPES Act provides for "expedited" judicial review in federal district court. Id. All of these provisions are intended to ensure that PHMSA engages with relevant stakeholders before issuing an order, reasonably justifies an emergency order, and narrowly tailors the order to abate only the imminent threat at hand.

Why is the Rule Necessary?

According to PHMSA, the IFR is necessary because the PIPES Act directed the agency to issue temporary regulations within 60 days of enactment of the legislation and final rules no later than 270 days after enactment. As a practical matter, the IFR largely mirrors the statutory mandates. But the IFR gives PHMSA the opportunity to explain why it believes new authority was needed:

  1. This new enforcement tool will allow the Administrator to issue an emergency order either prohibiting an unsafe condition or practice or imposing an affirmative requirement when an unsafe condition, practice, or other activity in the transportation of natural gas or hazardous liquids poses a threat to life or significant harm to property or the environment. . . . [It] is intended to serve as a flexible enforcement tool that can be used to address time-sensitive, safety conditions affecting multiple owners/operators, facilities, or systems that pose a threat....

IFR at 7-8.

PHMSA justifies the issuance of the IFR rather than a proposed rule based on good cause. The agency asserts that the statutory mandate to issue temporary rules within 60 days of the passage of the PIPES Act makes notice and comments on a proposed rule impracticable.

The significant aspects of the IFR are twofold. First, PHMSA lays out the procedures it intends to follow in exercising its new authority and considering administrative petitions for review of emergency orders. Second, the IFR is notably silent regarding how PHMSA might interpret and apply key elements of its new authority. For instance, what criteria or analytical approach, if any, will PHMSA use to evaluate the three "considerations" prescribed by statute? How will PHMSA determine which federal agencies, state agencies and "other entities knowledgeable in pipeline safety operations" are necessary to satisfy the purposes of its consultation requirements? What does "consultation" mean in practice? These are critical issues that stakeholders may want fleshed out.

What's Next?

The IFR takes effect immediately, but PHMSA is seeking comments to inform a final rule, which it intends to issue by March 19, 2017. Stakeholders who have an interest in shaping the final rule should consider filing comments with PHMSA within 60 days of publication of the IFR in the Federal Register. Publication is expected the week of October 10, 2016.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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.

Authors
Kathryn B. Thomson
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
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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.

Disclaimer

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.

General

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