August 2016, Vol. 243, No. 8



Pipeline Safety Bill Becomes Law; New Proposed Regs More Significant

President Obama’s signing of the small-bore pipeline safety bill clears the way for what will be a contentious debate about the far more significant proposed rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA).

The PIPES Act of 2016 signed June 22 contained two new regulatory mandates, one dealing with underground storage, the other with the enforcement process. That contrasts with the 549-page transmission safety rule issued by the PHMSA in April that creates a new integrity management classification and first-time requirements for verification of maximum allowable operating pressure (MAOP) and materials used in pipeline construction, among other new requirements.

In a conference call with reporters June 26, American Gas Association (AGA) officials alluded to “discrepancies and inconsistencies” in the language of the proposed rule, and the absence of justifications for several prescriptive mandates. The association complained that although the proposed rule was supposed to affect only transmission lines, it would significantly affect distribution pipelines as well.

The big concern for the Interstate Natural Gas Association of America (INGAA) in the pipeline safety bill was language in the House version that gave PHMSA authority to impose “emergency restrictions, prohibitions and safety measures by issuing an emergency order … without prior notice or an opportunity for a hearing, but only to the extent necessary to abate the imminent hazard.”

Cathy Landry, spokesperson for INGAA, said the bill Obama signed “addresses most of our issues regarding emergency order authority, enough so that we supported that final bill. We feel good about the changes made.”

Several provisions require studies or reports. One singled out for praise by the Alliance for Infrastructure and Innovation (AII) requires PHMSA to conduct a thorough study to improve damage prevention programs “through technological improvements in location, mapping, excavation and communications practices to prevent excavation damage…”

“Technology has come a long way over the past several decades, but state excavation damage programs have not caught up,” said AII Chairman Brigham McCown. “Most are still using phone calls to communicate and flags and spray paint to identify pipeline locations.”

The AII issued a report on state excavation damage prevention programs that concluded, “Current excavation damage laws, regulations and practices are not nearly as far along as they could be in implementing positive response requirements and technological improvements, like digital maps using GPS technologies, and shareable dockets with a record of all dig site data. But, some states are moving in the right direction and the trend in recent years seems to be moving toward favoring advanced safety and communications technologies.”

While almost all the provisions in the new congressional legislation are unremarkable, many in the PHMSA proposed rule, which would implement congressional mandates and recommendations from the National Transportation Safety Board (NTSB), are significant. Six pipeline trade associations have been talking regularly via conference calls about taking a united front on as many provisions as possible.

AGA split the proposed rule into 33 issue areas. Asked to highlight a couple of the most objectionable provisions, Erin Kurilla, AGA director, Operations & Engineering Services, cited the MAOP and materials verification aspects of the proposed rule, both of which would be new requirements.

With regard to the former, both grandfathered pipelines built before 1970 and pipelines built after 1970 that have never been pressure tested would be affected because both would require hydrostatic testing, according to Kurilla. That is a problem because hydrostatic testing requires a pipeline to be taken out of service and introduces water into the pipeline.

INGAA, too, has its gripes. “The rule as proposed appears overly prescriptive,” said Landry. “Such prescriptiveness could produce other adverse consequences, such as service disruptions and increased methane released into the atmosphere.”

Compounding the confusion surrounding some, if not many, of the provisions in the proposed safety rule is that the NTSB is taking issue with some of those meant to implement its recommendations.

For example, recommendations from the NTSB in its Jan. 27, 2015 study Integrity Management of Gas Transmission Pipelines in High Consequence Areas would require operators to modify previously uninspectable pipelines to accommodate inline inspection (ILI) tools or alternatively require operators to use new technologies to perform the inspections.

But the NTSB said the PHMSA provision does not do that. It is not clear if PHMSA will establish requirements to prioritize new ILIs based on pipeline age, operating pressure or other relevant criteria.

Corps Wants Changes to Pipeline Wetland Digging Permits

The Army Corps of Engineers has proposed changes to Nationwide Permit 12, which is used by the utility industry, including pipelines, when digging in and around wetlands.

The permits provide streamlined review and authorization for categories of activities the Corps decided have minimal impacts on aquatic environment. NWP 12 is one of 50 in force, covering all sorts of activities, and their five-year periods will run out March 19, 2017. So the Corps must both reissue the permits and at the same time make any changes necessary.

When NWP 12 was last reissued in 2012, the Sierra Club challenged its validity in federal court arguing the decision document the Corps published was inadequate because it did not assess the risk of oil spills, potential for oil spills, or impact of different types of oil on the severity of a spill and the potential frequency of any such oil spills. The District Court for the Western District of Oklahoma in Sierra Club, Inc. v. Bostick found since the Sierra Club did not raise the issue during the public comment period, its case should be dismissed.

Doug Hayes, an attorney for the Sierra Club, said, “We do plan to comment on the NWP 12 reissuance, but we won’t know whether we will challenge it until after we see the final Corps decision.”

NWP 12 covers activities that do not result in the loss of greater than 1.5 acres of waters of the U.S. for a single and complete project. The NWP authorizes construction, maintenance or repair of utility lines, including outfall and intake structures, and associated excavation, backfill or bedding for the utility lines, in all waters of the U.S., provided there is no change in preconstruction contours.

Material resulting from trench excavation may be temporarily side cast into waters for no more than three months, provided the material is not placed in such a manner that it is dispersed by currents. The district engineer may extend the period of temporary side-casting for no more than 180 days, where appropriate. In wetlands, the top 6-12 inches of the trench should normally be backfilled with top soil from the trench.


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