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Jul 23, 2023

PHMSA Releases Proposed Rules for Gas Pipeline Leak Detection and Repair Addressing Both Pipeline Safety and Environmental Protection

May 18, 2023 By: Emily P. Mallen, Kenneth J. Markowitz, Susan H. Lent, Leila Fleming Updated May 18, 2023 On May 4, 2023, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials

May 18, 2023

By: Emily P. Mallen, Kenneth J. Markowitz, Susan H. Lent, Leila Fleming

Updated May 18, 2023

On May 4, 2023, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a long-awaited notice of proposed rulemaking (NOPR) titled “Pipeline Safety: Gas Leak Detection and Repair” to implement congressional mandates regarding methane emissions reductions from new and existing natural gas transmission, distribution and gathering pipelines, as well as liquefied natural gas (LNG) facilities. Section 113 of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2020 (P.L. 114-183; PIPES Act of 2020) had directed PHMSA to reduce methane leaks as part of its traditional role as a pipeline safety regulator, and as an environmental protection measure, making this the first proposed PHMSA rule specifically focused on environmental protection as an integral component of the agency’s pipeline safety mission. The NOPR would codify self-executing requirements from Section 114 of the PIPES Act of 2020 mandating that operators of gas pipeline facilities detail procedures regarding the elimination of hazardous leaks, minimization of natural gas releases, and to repair or replace certain pipelines known to leak. The NOPR acknowledges that the agency’s current leak detection and repair standards, which had not been significantly updated since the 1970s, permit an operator to forgo leak repair if the operator determines that no existing or probable public safety hazard resulted regardless of environmental harms posed by the release. With a nod towards statutory amendments in Section 118 of the PIPES Act that broadened PHMSA’s mission to include prescribing standards that protect the environment, the NOPR recognizes the agency’s shift from focusing on the economic consequences of lost gas to the environmental consequences of gas releases. It also incorporates the current federal government-wide focus on addressing environmental justice and climate change, as found in Executive Orders 13990 and 14008.

The NOPR proposes several changes to Parts 191, 192 and 193 of PHMSA’s regulations located in Title 49 of the Code of Federal Regulations. The following section provides a high-level overview of the proposed rulemaking’s provisions.

PHMSA is conscious of where its newfound environmental protection jurisdiction may overlap with other federal regulators, including the U.S. Environmental Protection Agency (EPA). For example, PHMSA proposes to exempt pipeline compressor stations from leak repair, survey, and ALDP obligations to the extent they are subject to EPA regulations under the Clean Air Act. It is also aware of the impact its proposed regulations may have on emerging energy technologies that rely on hydrogen in lieu of natural gas. Because hydrogen pipelines are regulated by PHMSA under Part 192, PHMSA seeks comments on whether to treat them differently from pipelines transporting natural gas.

The NOPR was published in the Federal Register on May 18, 2023. Unless the deadline is extended, public comments are due within 60 days, or by July 17, 2023. PHMSA is seeking comments that specifically address whether its proposals would be reasonable, technically feasible, cost-effective and practicable for affected gas pipeline operators, but it is sure to receive comments that consider whether the agency has exceeded its congressional mandate as well. Akin’s Environmental and Natural Resources, Government Contacts and Corporate teams are well equipped to assist clients in preparing public comments.

1 HCAs are locations that are specifically defined in pipeline safety regulations as areas where pipeline releases could have greater consequences to health and safety or the environment due to higher population densities.

PHMSA Releases Proposed Rules for Gas Pipeline Leak Detection and Repair Addressing Both Pipeline Safety and Environmental Protection

Emily P. Mallen

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Kenneth J. Markowitz

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Susan H. Lent

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