The Pipeline Safety Dilemma: The U.S. Department of Transportation's Slow Implementation of the 2011 Pipeline Safety Act

The Pipeline Safety Dilemma: The U.S. Department of Transportation's Slow Implementation of the 2011 Pipeline Safety Act

As of June 2014, even though nearly 30 months have passed since the 2011 Pipeline Safety Act[1] was signed into law, the Secretary of the Department of Transportation ("DOT") has not promulgated any of the new substantive safety rules contemplated by the Act. The Act required the Secretary, who acts on pipeline safety matters through DOT's Pipeline and Hazardous Materials Safety Administration ("PHMSA"), to issue a series of reports and, if warranted, to issue new regulations imposing additional safety requirements on natural gas pipelines and hazardous liquid pipelines (including oil pipelines).

In many ways, PHMSA, as distinguished from DOT as a whole, has reached the limit on the procedural steps it can take unilaterally. Effective October 25, 2013, PHMSA fulfilled the procedural requirements of the 2011 Pipeline Safety Act by implementing new regulations (i) increasing the maximum civil penalty for violations of its substantive pipeline safety regulations, and (ii) making its decision-making process more transparent.[2] PHMSA also has commissioned and released most of the studies and reports required by the Act. Finally, in various stakeholder outreach efforts, PHMSA has described many of the key substantive elements of what PHMSA intends to include in future notices of proposed rulemaking. For example, in August 2013, PHMSA held public workshops to discuss its Integrity Verification Process, which PHMSA has been considering as a tool to satisfy several provisions of the 2011 Pipeline Safety Act.[3]

Before PHMSA can issue a proposed rule for notice and comment, it must (i) secure the approval of DOT's Office of the Secretary, and (ii) secure the approval of the Office of Management and Budget, through the Office of Information and Regulatory Affairs.[4] According to DOT's June 2014 Report on Significant Rulemakings, DOT estimates that it will secure the necessary clearances and issue a proposed rule on the first of the 2011 Pipeline Safety Act's substantive topics no sooner than August 2014, with other proposed rules being issued in late 2014 and early 2015.[5]

PHMSA has developed a page on its website that tracks its progress in implementing the requirements of the 2011 Pipeline Safety Act.[6] Attached to this Commentary is a more-detailed chart prepared by Jones Day that tracks PHMSA's progress.[7] As this chart shows, PHMSA, DOT, regulated pipelines, and interested stakeholders have a long road ahead to implement the 2011 Pipeline Safety Act's substantive safety requirements.

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Kenneth B. Driver

Brigid C. DeCoursey, an associate in the Washington Office, and Daniel W. Lynch, an associate in the Los Angeles Office, assisted in the preparation of this Commentary.

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[1] Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90, 125 Stat. 1904 (2012).

[2] Pipeline Safety: Administrative Procedures; Updates and Technical Corrections, Final Rule, 78 Fed. Reg. 58,897 (Sept. 25, 2013). Jones Day Commentary, "Pipeline Safety: PHMSA Adopts Important but Limited Updates to its Enforcement and Hearing Procedures" (Oct. 2013),.

[3] Pipeline Safety: Public Workshop on Integrity Verification Process, Notice of public meeting, 78 Fed. Reg. 32,010 (May 28, 2013).

[4] Executive Order No. 12866, 58 Fed. Reg. 51375 (Oct. 4, 1993).

[5] United States Department of Transportation, Report on DOT Significant Rulemakings (June 2014). DOT updates this report each month.

[6] The Pipeline Safety Act—Track PHMSA's Progress (select "Progress" from the drop-down menu) (last visited June 11, 2014).

[7] Status of Implementation of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. The chart identifies each subsection of the Act that imposes a requirement on the DOT, quotes the relevant language from the Act, and cross-references each provision of the Act against the U.S. Code. The chart then identifies the type of requirement imposed by the Act (e.g., a study or a regulation), the deadline for DOT action, and the status of DOT's efforts. Finally, the chart identifies each supporting document released by the relevant agency (the relevant agency typically is PHMSA, but some of the Act's reporting requirements were imposed on other agencies, such as the Government Accountability Office). The electronic version of the chart allows the reader to access the supporting documents.