PHMSA Issues Notice of Limited Enforcement Discretion for Some Gas Gathering Pipelines

July 25, 2022

On July 8, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice of regulatory enforcement discretion for particular gathering lines. Gathering lines are those pipelines that transport gas from a current production facility to a transmission line or main (see 49 C.F.R. § 192.3). The notice specifically applies to existing Type C gas gathering pipelines with an outer diameter greater than or equal to 8.625 inches, but less than or equal to 12.75 inches. It also applies only to violations of safety requirements identified in 49 C.F.R. § 192.9 until May 17, 2024.

On Nov. 15, 2021, PHMSA published a final rule titled “Pipeline Safety: Safety of Gas Gathering Pipelines: Extension of Reporting Requirements, Regulation of Large, High-Pressure Lines, and Other Related Amendments,” 86 Fed. Reg. 63266 (Nov. 15, 2021). This final rule responded to congressional recommendations and mandates by “extending existing design, operational and maintenance, and reporting requirements under the Federal pipeline safety regulations to previously unregulated, onshore gas gathering pipelines in rural areas.” As a result, pipeline operators will be required to satisfy annual and incident reporting requirements for these now-regulated gas gathering pipelines under 49 C.F.R. Part 191.

The final rule set a May 16, 2023, compliance date. This means pipeline operators have until that date to implement the applicable safety requirements identified in 49 C.F.R. § 192.9. Section 192.9(g)(4) provides operators, however, with the ability to seek an alternate compliance deadline; they simply need to provide a reasonable excuse. Aware that some pipeline operators may face challenges meeting the compliance deadline (and after some industry pushback) PHMSA provided pipeline operators with some relief.

To that end, PMHSA’s recent notice dials the final rule’s enforcement threats back in favor of ensuring more immediate compliance with “higher-risk, larger-diameter (outer diameter greater than 12.75”) Type C gathering pipelines.” With that priority in mind, the notice states that PHMSA will refrain from taking enforcement action against operators for safety requirement violations for an additional year (i.e., until May 17, 2024), but only for Type C gathering pipelines with smaller outer diameters.

While the relaxed penalty application is welcome, the change still does not provide relief from other burdensome aspects of the final rule. For example, pipeline operators must still identify and document the starting and endpoints of all gathering lines using an established methodology on or before Nov. 16, 2022. (See PHMSA’s Gas Gathering Fact Sheet, summarizing the final rule’s compliance timelines.) Additionally, pipeline operators must still implement all safety requirements for gathering pipelines with a diameter greater than 12.75 inches. As a result, pipeline operators should continue their compliance efforts, calendar all deadlines and request extensions well in advance of any deadline.