On March 20, 2020, 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. Resulting from government’s declaration of a national emergency due to COVID-19, PHMSA’s announcement was made in the midst of a developing crisis for the oil and gas sector as operators were faced with an unfamiliar situation.
As a historic announcement and one that gives operators no comparison when it comes to interpretation, PHMSA’s notice has left many operators struggling to understand what they can and cannot do during this time and where their responsibilities have shifted.
PHMSA’s Motivation to Support Operators
PHMSA recognizes that many operators are facing extenuating circumstances due to COVID-19 and might have limited personnel resources as a result and recognizes that operators are seeking temporary relief as they develop processes and strategies to maintain normal operations. This can lead to issues meeting operational and maintenance needs to ensure the safety of assets and pipeline operations. Because PHMSA’s primary objective is to provide guidance to operators with the safety of people, property, and the environment in mind, they have deemed it necessary to provide assistance to operators facing COVID-19-related operational issues that can affect safety.
Effects & Consequences of the Notice
To assist operators who are facing this dilemma, PHMSA has temporarily relaxed its enforcement of particular regulations, allowing operators to deviate from certain regulations when necessary to safely operate pipelines and storage facilities. This means that PHMSA-regulated operators may deviate from particular regulations without the fear of receiving a violation during their next audit. However, any deviations from regulations must be documented with an explanation of the cause and description of the steps taken by the operator to address the situation. In other words, if an operator thought it necessary to deviate for safety and is able to show a justification via documentation during its next audit, PHMSA is likely to forgive the deviation if they find the decision was warranted.
Operators Affected by the Notice
The notice affects operators of pipelines that fall within PHMSA’s jurisdiction, specifically hazardous liquid and gas pipeline, underground natural gas storage, and liquefied natural gas operators that qualify under PHMSA. Moreover, an operator must be “faced with limited resources as a result of the impacts of the National Emergency,” meaning that operators who cannot show documentation that they have been affected will not be guaranteed the same understanding as those who are facing operational hardships. Put simply, not all operators can relax their compliance—operators must be able to show a need for a deviation that relates to the situation at hand.
The Details of the Notice
PHMSA’s stay of enforcement is specific to certain regulations, particularly those dealing with operator qualification and hours of service with some consideration of drug testing requirements. PHMSA states that it “does not intend to take any enforcement action with regard to OQ and CRM requirements, and will consider exercising its enforcement discretion with regard to Part 199 drug testing requirements.”
Specifically, PHMSA is relaxing compliance requirements with regard to the following regulations:
- 49 CFR 192, Subpart N – Qualification of Pipeline Personnel
- 49 CFR 193, Subpart H (exceptions) – Personnel Qualifications and Training
- 49 CFR 195, Subpart G – Qualification of Pipeline Personnel
- 49 CFR 192.631(d)(4) – Control Room Management
- 49 CFR 195.446(d)(4) and (h) – Control Room Management
- 49 CFR 199.105(a) and (c) (exceptions) – Drug and Alcohol Testing
PHMSA is applying the notice to all subparts of regulations outlining OQ requirements for interstate natural and hazard liquid pipelines, as well as LNG facilities except for the subsection discussed below. PHMSA is aware that, given how quickly COVID-19 is spreading, operators’ staff levels might decline if cases occur within control room personnel and the time and resources necessary to hire and training new controllers by the regulations might impose a safety risk. As a result, PHMSA will take the situation into consideration if an operator must deviate from and appropriate documents deviations regarding OQ requirements.
The only exception relates to a section of Part 193 for LNG facilities that relates to the evaluation of personnel regarding physical impairment to perform duties: LNG facilities are still required to abide by 193.2711 and “verify that personnel assigned operating, maintenance, security, or fire protection duties at the LNG plant do not have any physical condition that would impair performance of their assigned duties. The plan must be designed to detect both readily observable disorders, such as physical handicaps or injury, and conditions requiring professional examination for discovery.”
Control Room Management
PHMSA’s notice also applies to sections of Parts 192.631 and 195.446 pertaining to fatigue mitigation and controller training. Given the potential for extended or additional shifts if personnel is reduced due to COVID-19, the ability for some operators to abide by current regulations for hours of service (HOS) might be hindered. With this in mind, operators might find that they are required to deviate from the standard HOS limitations as they work to stabilize their schedule.
As with the OQ requirements of Parts 192 and 193, sections pertaining specifically to training provisions in controller training programs also fall under the notice. The regulations in 192.631(h) and 195.446(h) require operators to implement training programs for pipeline controllers that include and discuss certain aspects of operation. While much of this is considered crucial, such as a training on the working knowledge of a pipeline, some aspects might require time that is unavailable, such team training exercises with individuals outside the control room who commonly collaborate with controllers.
To be clear, PHMSA is not providing as much leniency regarding only pre-employment and random drug testing as it is regulated in 199.105(a) and (c). The notice does not state PHMSA will use enforcement discretion regarding other types of drug testing, such as post-accident or reasonable cause testing. The notice also does not mention 19.225, which addresses alcohol testing regulations.
While it will consider relaxing some enforcement given the circumstances, PHMSA urges operators to incorporate the flexible processes allowed by Part 199 that grant pre-employment and random drug testing at a more suitable time. Drug testing is also allowed throughout the calendar year. Operators are encouraged to consider processes that allow for adequate pre-employment and random drug testing without hindering the safety of employees or operations.
PHMSA acknowledges that while the enforcement discretion is aimed to assist operators with the most problematic issues at this time, there might be other regulations with the potential to create issues for operators as the COVID-19 situation develops. Because PHMSA works to assist operators in protecting the safety of personnel and the public, the agency has stated that it will exercise discretion with other aspects of pipeline safety regulations if deemed necessary to provide operators room for flexible responses in maintain normal operations during the crisis. However, no official guidance regarding what areas those might be has been released; therefore, it is advisable that all operators document all deviations with clear support in preparation for audits and honest discussions with regulators.
Maintenance of Responsibility
PHMSA states that the notice does not relieve any operator from its responsibility to comply with other applicable federal regulations. Operators are still expected to act with safety in mind, which includes hiring reasonably trained, non-impaired workers.
Furthermore, PHMSA applies its consistent mindset of operator responsibility on those affected by COVID-19, stating that pipeline operators who fall within the notice are “fully responsible for the safe operation of their systems and maintaining the capability to detect and respond to critical pipeline safety issues and adequately respond to pipeline emergencies.”
In other words, while the notice is meant to assist operators in responding to the national emergency and the COVID-19 situation, it in no way removes the responsibility of operation off the operator.
NuGen Automation understands that this is a crucial time for all operators. With a changing economic landscape and the need for sometimes daily alterations to operations, the temporary reduction in PHMSA enforcement might be confusing to some operators. This can be a dangerous situation, as PHMSA has relaxed their enforcement in some ways but still maintains that all operators are responsible for safety at all times. This is not the time to misunderstand the industry’s situation.
In light of PHMSA’s notice, we advise all clients to consider the following steps to alleviate potential issues while maintaining compliance:
Assess your current personnel numbers and plan ahead for a reduction in available staff. Have an idea of how your control room will operate if some controllers are unavailable: Will you be able to maintain HOS or require a deviation? Can you hire more controllers to buoy your workload in the meantime?
If you are currently training or need to train other controllers, assess if the training can be completed now. In some cases, this will put a controller over recommended HOS due to hours he or she is required at the console; however, in some cases, if your schedule allows, you might be able to complete training and have more controllers prepared to take over if you lose any personnel.
Prepare your staff for what might be needed. If there is the potential for a change in average HOS, advise them not only of how that might look but why it is being done and PHMSA’s current stance on the issue. Ensure that your personnel are aware not only of the situation but of changes in the enforcement so they understand how they might be affected.
Prepare additional fatigue countermeasures. Increase break opportunities, encourage good sleep habits, and check in with on-shift controllers when necessary to help assist with any potential increase in fatigue. The COVID-19 situation is affecting everyone mentally, whether its obvious or not, so be aware of how your controllers are responding and encourage awareness among your controllers with regard to potential fatigue symptoms.
No matter how you are preparing, NuGen Automation is ready to assist you in not only maintaining compliance during this time but doing so safely and efficiently. We understand the heightened stress that comes from unfamiliar situations and the need to maintain as normal of operations as possible. That’s why our Compliance Team is monitoring the situation and staying abreast of regulatory changes.
If you are unsure of how to best stay in compliance despite the changes in your control room, let us help put your worries at ease. We’re available to talk with you about procedures, deviations, and documentation, as well as to simply answer your questions about the PHMSA notice. Our objective is to support as many operators as we can during this time, whether we have an existing relationship with them or not. Because a safe operator is a safe tomorrow.
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Contact NuGen Automation for COVID-19 Control Room Assistance
If you have questions or need assistance regarding compliance or the PHMSA Notice of Stay of Enforcement, reach out to us. We’re happy to assist with any aspect of your CRM compliance.
Jere Guillory, Compliance Manager (firstname.lastname@example.org)
Whitney Vandiver, Compliance Specialist I (email@example.com)
David Panthagani, Vice President of Operations (firstname.lastname@example.org)