PHMSA Issues Guidance on Enforcement During COVID-19 Outbreak

Like many other regulators, on March 20, 2020 the Pipeline and Hazardous Materials Safety Administration (PHMSA) released guidance on enforcement activity during the novel coronavirus (COVID-19) outbreak. The guidance states that “PHMSA does not intend to take any enforcement action with regard to [operator qualification] and [control room management] requirements, and will consider exercising its enforcement discretion with regard to Part 199 drug testing requirements.” PHMSA is “taking into consideration the exigent circumstances” that may cause regulated operators difficulty in compliance with:

• 49 C.F.R. §§ 192.801-.809, 193.2707-.2709, 193.2713-.2717, and 195.501-.509 (operator requirements); and
• 49 C.F.R. §§ 192.631(d)(4) and 195.446(d)(4) and (h) (control room requirements).

PHMSA’s guidance provides that operators unable to maintain compliance with the regulations should communicate with their regulator and maintain documentation explaining:

• what specific requirements are not being met;
• how the noncompliance is related to COVID-19; and
• what alternative measures are being taken to ensure safety.

PHMSA “will exercise discretion in its overall enforcement of other parts of the pipeline safety regulations with the intent of providing operators with the flexibility to maintain normal operations while ensuring public safety and protection of the environment.” Furthermore, PHMSA “will not object to waivers, special permits, stays of enforcement or similar measures granted by State authorities to pipeline operators for noncompliance due to COVID-19 with State regulations equivalent to the Federal regulations.” Operators regulated by PHMSA who determine that they cannot comply with the regulations should contact PHMSA’s Office of Pipeline Safety by email at Pipeline-COVID-19-notice@dot.gov. Intrastate operators regulated by state authorities should contact their state program manager.

PHMSA also released guidance for state partnering agencies, available here.