On March 20, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a
Notice of Stay of Enforcement and Notice of Enforcement Discretion to Operators Affected by the Coronavirus (COVID-19) Outbreak. “PHMSA understands that some pipeline operators are finding it extremely difficult to meet one or more of these regulatory requirements because of personnel and resource constraints due to the National Emergency and have sought temporary relief as they develop strategies and alternatives for maintaining normal operations and protecting the health and safety of their personnel and the public.” The stay informs operators that PHMSA does not intend to take any enforcement actions with regard to operator qualification (OQ), control room management (CRM), and will consider exercising its enforcement discretion with regard to Part 199 drug testing requirements.
PHMSA then provides additional flexibility, “In addition to these three specific areas, PHMSA realizes there may be other regulatory requirements under the federal pipeline safety laws in 49 C.F.R. Parts 190 through 199 that pose compliance challenges for operators during this national emergency. In such cases, it is important that operators adequately document any such issues and communicate promptly with their regulator about them. PHMSA will exercise discretion in its overall enforcement of other parts of the pipeline safety regulations with the intent of providing operators with the flexibility to maintain normal operations while ensuring public safety and protection of the environment.”
While this stay is specific to the pipeline operators directly regulated and inspected by PHMSA, the notice was distributed to the state pipeline safety program managers. PHMSA explains that they “will not object to waivers, special permits, stays of enforcement or similar measures granted by state authorities to pipeline operators for noncompliance due to COVD-19 with State regulations equivalent to the Federal Regulations.”
The guidance within PHMSA’s stay is consistent with the guidance PHMSA issued to state pipeline safety program managers on March 19.
The Guidance to State Partners Regarding COVID-19 outlines four recommended actions for state partners during this time, which include conducting remote inspections or postponing those that are not time-sensitive. PHMSA reminds the state pipeline safety program directors that they should follow Centers for Disease Control and Prevention guidance and best practices to minimize COVID-19 exposure to employees, their families, the public, and the regulated community.
The Department of Transportation issued additional detailed
Guidance on Compliance with DOT Drug and Alcohol Testing Regulations on March 23. The guidance states that “DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). You should make a reasonable effort to locate the necessary resources. If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed.”
For questions on this article, please contact Erin Kurilla of APGA staff by phone at 202-464-2742 or by email at
ekurilla@apga.org.