In the wake of COVID-19, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued two guidance documents recognizing the paramount importance of oil and gas in responding to the crisis while allowing flexibility should operators face resource and staffing constraints in executing their daily pipeline safety compliance obligations.

The first Guidance Document (“Notice of Enforcement Discretion”) announces that PHMSA is providing relief with respect to operator qualification (OQ) and control room hours of service and certain training requirements. The Guidance Document indicates that PHMSA will “exercise discretion in its overall enforcement… of the regulations in order to provide operators with the flexibility to maintain normal operations while ensuring public safety and protection of the environment.” Proper documentation combined with prompt communication is going to be key for operators wanting to avail themselves of the Agency’s enforcement discretion. Operators should notify PHMSA of compliance issues at Pipeline-COVID-19-notices@dot.gov and via their state program managers for Intrastate Operators Regulated by State Authorities. PHMSA is also exercising its discretion with respect to drug and alcohol pre-employment and random testing beyond what is required under the regulations.

The Second Guidance Document (“Guidance to State Partners Regarding COVID-19”) provides that PHMSA will work with industry and state partners “to address any emergent need for special permits or State waivers and, if appropriate, reschedule some inspections as a result of the COVID-19 outbreak.” It also states that PHMSA and relevant state partners will nevertheless continue to prioritize “safety-sensitive inspections and investigations” and “conduct State Program Evaluations remotely, as much as possible.” The Guidance Document emphasizes the essential nature of oil and gas pipeline infrastructure by stating that it is “critical to the safety of the transportation and energy supply networks and the economic stability of our Nation.”

Developments at the state and federal levels are rapidly changing and we will continue to keep you posted on the relevant updates on these issues as well as other issues.