The Pipeline and Hazardous Material Safety Administration (PHMSA) recently revised submission requirements for incident reporting by operators of gas and hazardous liquid pipelines.[1] While the December 27, 2016 notice appears largely ministerial, the revised reporting requirements increase the specificity and detail included in the reports. Consequently, the new requirements will expand the evidence available to the agency for use in enforcement.
The Proposal
On May 13, 2016, PHMSA proposed changes to the forms and instructions used by operators to report incidents and accidents associated with gas distribution systems, natural gas transmission pipelines, liquefied natural gas (LNG) facilities, and hazardous liquid pipeline systems.[2] A key objective of the proposed revisions aimed to increase the detail for “incident response, incident consequences, operating conditions, cause, and contributing factors.”[3] Other proposed changes would (i) reduce the availability of “other” or “unknown” as an acceptable response, thus allowing “a more meaningful analysis of the data;” (ii) provide information needed to calculate to social cost of carbon from incidents; (iii) collect more detailed information about non-hospitalization injuries and affected buildings;[4] and (iv) communication with emergency responders and state “one call” centers.[5] PHMSA also proposed to require operators to report not only the “apparent cause” of an incident, but also identify any of 45 “contributing factors” involved in the incident that “heightened the likelihood of the release or added to the impact of the release.”[6]
Stakeholders offered PHMSA a range of comments in response to the proposal. Several expressed concern about the burden associated with obtaining the information necessary to comply with the new requirements. In several respects, stakeholders indicated that such information might not be readily available. Other commenters objected to the increased requirements, particularly the increased reporting on impacts and contributing factors.
The Final Requirements
The final reporting requirements published on December 27 respond in part to stakeholder concerns, but in most key respects, PHMSA retained the additional requirements. Operators must report contributing factors, non-hospitalization injuries, and information about impacted buildings.[7] Rather than allow “unknown” in response to questions about gas ignition, emergency response costs, and other issues, PHMSA expects operators to provide estimates.[8] Thus, even with some accommodation of stakeholder requests, the new reports will provide PHMSA with additional evidence useful when it considers enforcement action after an incident. Moreover, third parties impacted by an incident may also find the expanded information valuable in private litigation. For these reasons, operators may consider providing additional context when submitting the new reports and additional documentation in advance of potential litigation.
1] 81 Fed. Reg. 95,294 (Dec. 27, 2016). PHMSA will accept any additional comments until January 26, 2017.
[2] 81 Fed. Reg. 29,943 (May 13, 2016).
[3] 81 Fed. Reg. at 29,943
[4] Id. at 29,944.
[5] See, e.g., Proposed Form PHMSA F 7100.1 (“Incident Report – Gas Distribution System”).
[6] 81 Fed. Reg. at 29,945; see also e.g., Proposed Form PHMSA F 7100.1 (“Incident Report – Gas Distribution System”), at 21 (Part J); Proposed Instructions for Form PHMSA F 7100.1.
[7] 81 Fed. Reg. at 95,295, 95,296, 95,301.
[8] Id.
