Power & Pipes

FERC, CFTC, and State Energy Law Developments

In response to the US president’s declaration of a national emergency due to the coronavirus (COVID-19) pandemic, on March 20 the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice to operators stating that, effective immediately and until further notice or modification, PHMSA does not intend to take any enforcement action with respect to operator qualification (OQ) and control room management (CRM) requirements, and will consider exercising enforcement discretion regarding certain drug testing requirements.

The notice recognizes that operators (including hazardous liquid and gas pipeline operators, underground natural gas storage operators, and liquefied natural gas operators) may be facing personnel and resource constraints posed by the national emergency.

Operator Qualification and Control Room Management Requirements

OQ and CRM requirements help ensure workers performing operations or maintenance tasks at a pipeline facility that affect the pipeline’s operation or integrity meet the minimum requirements set forth in the operator’s qualification program. Specifically, PHMSA regulations in Subpart N of Part 192, Subpart H of Part 193, and Subpart G of Part 195 of Title 49 of the Code of Federal Regulations require operators to ensure that covered workers are qualified under a written OQ program or have demonstrated the capability to perform their assigned functions.

Similarly, Sections 192.631 and 195.446 of PHMSA’s regulations require operators to implement and maintain control room management procedures; provide controllers with the information, tools, processes, and procedures necessary for them to carry out their roles and responsibilities; establish a controller training program; and implement methods to reduce the risk associated with controller fatigue that could inhibit a controller’s ability to carry out his/her roles and responsibilities.

Drug Testing Requirements

PHMSA drug testing requirements serve to prevent accidents and injuries resulting from the use of prohibited drugs from employees who perform certain functions on pipeline facilities. Subpart B of Part 199 requires operators to conduct pre-employment and random drug testing for workers who perform “covered functions.” Operators are required to maintain and follow a written anti-drug plan and make available an employee assistance program that provides its employees education and training on drug use.

PHMSA Notice

PHMSA recognizes that these and other regulatory requirements may pose compliance challenges due to the national emergency. However, PHMSA is encouraging operators to fully use the flexibility afforded by its regulations with respect to pre-employment and random drug testing. For example, operators are permitted to schedule the date, time, and location of the pre-employment drug test and are also permitted to spread the random drug testing throughout the calendar year.

According to PHMSA’s notice, operators unable to comply with the OQ, CRM, and employment drug testing requirements, or any of PHMSA’s other regulations, must promptly notify their regulator. Operators regulated by PHMSA should notify PHMSA’s Office of Pipeline Safety, and intrastate operators regulated by state authorities should notify the appropriate state program manager. Operators also should 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’s notice only applies to operators facing limited resources as a result of the national emergency and does not relieve such operators from complying with any other applicable provisions of the federal pipeline safety regulations, such as those that apply to the installation, maintenance, and repair of pipeline facilities, or from acting reasonably to use trained, nonimpaired workers to perform operations, maintenance, and control room tasks. And nothing in the notice prohibits PHMSA from rescinding the stay of enforcement or enforcing the regulations outlined above if PHMSA determines that a significant safety issue or other circumstance warrants doing so.

We will continue monitoring guidance and notices that PHMSA issues in response to the national emergency and will report on further developments as they occur.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.