In this podcast episode, Keith Coyle from Babst Calland discusses the final stages of the Leak Detection and Repair (LDAR) rule and its regulatory journey. The conversation provides insights into the process, including the role of federal offices like the Office of Management and Budget (OMB) and the Gas Pipeline Advisory Committee (GPAC), while also exploring the complexities surrounding regulatory reviews and implications for the pipeline industry.

LDAR Final Rule Show Notes, Links, and Insider Terms

• Keith Coyle is a shareholder and attorney with the law firm of Babst Calland. Mr. Coyle is a member of the firm’s Washington, D.C. office and a Shareholder in the Pipeline and HazMat Safety practice. Connect with Keith Coyle on LinkedIn.
  • Babst Calland’s Energy and Natural Resources attorneys work collaboratively across legal disciplines to serve the needs of energy companies across the United States. Based in Washington, D.C., the Firm’s Pipeline and Hazardous Materials Safety practice represents clients on all types of pipeline safety and hazardous materials transportation matters.
• PHMSA (Pipeline and Hazardous Materials Safety Administration) is responsible for providing pipeline safety oversight through regulatory rule-making, NTSB recommendations, and other important functions to protect people and the environment through the safe transportation of energy and other hazardous materials.
• Leak Detection and Repair (LDAR) is the process by which oil and gas, chemical, and/or petrochemical equipment is monitored for the location and volume of unintended leaks
• Gas Hazardous Leak according to PHMSA is any release of gas from a pipeline that is uncontrolled, that could be an existing probable or future hazard to a person’s property or the environment, or that is or can be discovered using equipment sites, sound, smell, or touch.
• LPAC (Liquid Pipeline Advisory Committee) and GPAC (Gas Pipeline Advisory Committee) are statutorily mandated advisory committees that advise PHMSA on proposed gas pipeline and hazardous liquid pipeline safety standards, respectively, and their associated risk assessments. The committees consist of 15 members with membership evenly divided among Federal and State governments, the regulated industry, and the general public. The committees advise PHMSA on the technical feasibility, reasonableness, cost-effectiveness, and practicability of each proposed pipeline safety standard.
• Notice of Proposed Rulemaking (NPRM) is a stage in the rulemaking process that happens before an agency adopts a final regulation. It is like the first draft of a regulation and gives the public an idea of what is to come.
• Protecting Our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2020 addresses pipeline safety and infrastructure with respect to natural gas and hazardous liquid pipelines. It authorizes appropriations through FY2023 for specified pipeline safety programs under the Pipeline Safety Improvement Act of 2002 and related enactments.
• NTSB (National Transportation Safety Board) is a U.S. government agency responsible for the safety of the nation’s major transportation systems: Aviation, Highway, Marine, Railroad, and Pipeline. The entity investigates incidents and accidents involving transportation and also makes recommendations for safety improvements.
• Natural Gas Pipeline Safety Act of 1968 (Pipeline Safety Act) was authorized by the Secretary of Transportation to prescribe safety standards for the transportation of natural and other gas by pipeline, and for other purposes. 
• Downstream means the direction and area the product is traveling toward. It can also mean the process involved in converting oil and gas into the finished product, including refining crude oil into gasoline, natural gas liquids, diesel, and a variety of other energy sources. The closer an oil and gas company is to the process of providing consumers with petroleum products, the further downstream the company is said to be.
• Gathering Lines are pipelines that transport natural gas from production facilities to a transmission line or distribution main lines.
• The Office of Management and Budget (OMB) is the largest office within the Executive Office of the President of the United States that was established in the 1980 Paperwork Reduction Act (44 U.S.C Chapter 35).  Its mission is to assist the President in performing his roles and responsibilities in overseeing the administration of the Executive Branch.  One of its most important functions is to coordinate the review of federal regulations from Executive Branch agencies.  The Director of OMB is nominated by the President and confirmed by the Senate. 
• The Office of Information and Regulatory Affairs (OIRA) is a division within OMB that is responsible for performing the regulatory review function.  OIRA has approximately 45 full-time career civil servants who work with agency officials on specific issues and regulations.  The Administrator of OIRA is nominated by the President and confirmed by the Senate.
• EO 12866 is an Executive Order that President Clinton issued on September 30, 1993, that establishes and governs the process under which OIRA reviews draft and final regulatory actions from Executive Branch agencies. 
  • EO 12866 was the product of a regulatory reform movement that dates to the 1970s.  The powers of federal agencies had expanded significantly in the post-New Deal era, creating what had become known as a “Fourth Branch” of government.  Despite that growth, the actions of federal agencies were not subject to coordinated oversight and review by the President at that time. 
    • In 1971, President Nixon established a “Quality of Life Review” program in which executive departments and independent agencies submitted all “significant” draft proposed and final rules pertaining to “environmental quality, consumer protection, and occupational and public health and safety” to OMB, which then circulated them to other agencies for comment.
    • In 1974, President Ford issued Executive Order 11821, which required agencies to prepare an “inflation impact statement” for each “major” proposed rule.  The statement was a certification that the inflationary impact of the rule had been evaluated in accordance with criteria and procedures developed by OMB. Before a major rule was published in the Federal Register, the issuing agency was required to submit the associated impact statement to the Council on Wage and Price Stability (CWPS). CWPS would then either provide comments directly to the agency or participate in the regular rulemaking comment process.
    • In 1978, President Carter issued Executive Order 12044, which (among other things) required agencies to publish semiannual agendas of any significant rules under development or review, and to prepare a regulatory analysis for at least all rules with a $100 million impact on the economy.  President Carter also established (1) a “Regulatory Analysis Review Group” (RARG) to review the analyses prepared for certain major rules and to submit comments during the comment period, and (2) a “Regulatory Council” to coordinate agencies’ actions to avoid conflicting requirements and duplication of effort. 
    • 1981, President Reagan issued Executive Order 12291 on “Federal Regulation,” which built on the prior executive orders and served as the forerunner of the EO 12866 process. 
    • In 1993, President Clinton issued EO 12866.  While modified by various subsequent Executive Orders, the process originally laid out EO 12866 largely remains in effect. 
• The basic objectives of EO 12866 are to enhance planning and coordination with respect to both new and existing regulations. For all significant regulatory actions, EO 12866 requires OIRA review before the actions take effect.  OIRA has up to 90 days (which can be extended) to review a rule. 
• EO 12866 requires agencies to conduct an analysis of the benefits and costs of rules and, to the extent permitted by law, directs that regulatory action shall only proceed on the basis of a reasoned determination that the benefits of a regulation justify the costs.  OIRA reviews these cost-benefit analyses under EO 12866. 
• Outside parties may provide written comments to the OIRA Administrator on a rule that is under review. Outside parties may also request a meeting with the Administrator, or his/her designee, to discuss a rule that is under review.
• OIRA received the final rule from PHMSA on October 21, 2024.  As previously indicated, EO 12866 affords a review period of up to 90 days, which can be extended.  Outside parties can submit written comments or request a meeting with OIRA to discuss the final rule.  These meetings are docketed and attended by staff from PHMSA and OIRA. 
• After OIRA completes its review, the final rule will be returned to PHMSA for further action, which can include publication in the Federal Register.  The outcome of the upcoming election is likely to have an impact on the timing of OIRA’s review and any subsequent actions by PHMSA. 

LDAR Final Rule Full Episode Transcript

Russel Treat:

Welcome to the “Pipeliners Podcast,” Episode 360, sponsored by EnerSys Corporation, providers of POEMS, the Pipeline Operations Excellence Management System, operations and compliance software for the pipeline operator to address safety program management, control room management, and field operations. Find out more about POEMS at enersyscorp.com.

[background music]

Announcer:

The Pipeliners Podcast, where professionals, bubba geeks, and industry insiders share their knowledge and experience about technology, projects, and pipeline operations.

Now your host, Russell Treat.

Russel:

Thanks for listening to the Pipeliners Podcast. I appreciate you taking the time. To show that appreciation, we give away a customized YETI tumbler to one listener every episode. This week, our winner is Adam Siebert with Buckeye Partners. Congratulations, Adam. Your YETI is on its way.

To learn how you can win this signature prize, stick around till the end of the episode. This week, Keith Coyle of Babst Calland returns, and we talk about the final LDAR rule and where it is in the process. Keith Coyle, welcome back to the Pipeliners Podcast.

Keith Coyle: Thanks for having me on again, Russell. This is a quicker return than the last one. I think we had a couple of months in between episodes the last time. It feels like it was less than a couple of months. It feels like it was only a couple of days, but I love doing the show, and it’s always good to talk to you.

Russel:

Great to have you back. We have a new rulemaking that is getting to the final stages of the process.

I wanted to talk briefly about the LDAR rule and what that is just to remind the listeners. Then I’d like to take a deeper dive into where we are in the process and what happens because it’s very interesting given where we are with the process and where we are with the election cycle.

Maybe a good place to start is tell us a little bit about LiDAR and what it is, refresh our memories.

Keith:

Sure. The gas pipeline leak detection and repair rule, or what everybody’s calling the LDAR rule, that was a rule that PHMSA developed to address a congressional mandate that was included in Section 113 of the 2020 reauthorization of the Pipeline Safety Act.

That mandate directed PHMSA to prescribe new regulations dealing with leak detection and repair for gas distribution lines, gas transmission lines, and certain gas gathering lines.

In May of 2023, PHMSA issued a proposed rule addressing the congressional mandate that went out for public comment. There was a significant amount of interest in that proposed rule. PHMSA received a lot of comment.

Then the next phase in the rulemaking process, PHMSA took the proposed rule in the supporting analysis and presented it to the Gas Pipeline Advisory Committee for review.

We’ve talked about the Gas Pipeline Advisory Committee or GPAC in prior episodes. That is the federal advisory committee that’s charged by statute with reviewing and providing recommendations on PHMSA’s rulemaking proposals.

The GPAC met to discuss the LDAR rule in December of 2023 and then again in March of 2024. We might have done two prior shows, actually, on this GPAC meeting for the listeners that are…

Russel: We’ve actually done two, one after each of the GPAC meetings.

Keith:

We got a double dip on that. It was a lot of days in a public meeting, so I guess it was worth two, but we have a previous show on that.

Where we are in the process now, following the GPAC meeting, there was a short additional public comment period. Now PHMSA has developed its final rule and supporting analyses and sent those documents over to the Office of Management and Budget for review, pursuant to provisions and certain executive orders that we’ll discuss a little bit today.

Russel:

Just to provide some color on this, Keith, for the listeners that may not have heard the other episodes, the leak detection and repair rule. Basically, what it lays out is for all gas pipeline operators, including utilities, there’s requirements for surveying for leaks, categorizing those leaks, and repairing those leaks.

There was a lot of technical discussion about that process in the whole GPAC review and so forth. I think there’s a lot of industry interest in this rule because it’s a fairly significant operational burden on a lot of operators, additional operational burden.

At least in terms of the pipeline operators on the GPAC, they universally agree that we should be locating and fixing leaks, but like everything else in pipeline, it’s never as straightforward as what you think on the surface of it. It’s very interesting.

Then we find ourselves where this is one of the big initiatives of the current administration. We’re about to have an election here as we record this. I think we’re three weeks away from the election, two weeks away from the…

Keith: I think it’s less than that. No. It’s less than three.

Russel: Three weeks away from the election.

Keith: November 5, I believe.

Russel:

I don’t know if everybody knows this, but we have our election in November, but the change in administration’s not until January. There’s this period of time between the election and the new administration, and we’re about to enter that.

I think first, it’d be good just to talk a little bit about the standard process, and then we can talk maybe a little bit about the reality of…We’ll take some wagers as to what we think is going to happen out of that.

Keith: [laughs]

Keith: I know how much you love that.

Keith: No. I’m waiting for your question out of left field by the end of the show.

Russel: [laughs]

Russel: I don’t have it yet. We’ll see what comes up. [laughs]

Keith:

Just a couple of introduction to some concepts. What’s the Office of Management and Budget or OMB? It’s an office within the Executive Office of the President of the United States. It was established in 1980 in the Paperwork Reduction Act.

Its mission is to help the president perform his executive functions and overseeing the administration of the executive branch. It does a lot of different things, but one of the most important things that it does, for purposes of what we’re discussing today, is it coordinates and oversees the review of regulations that are issued by various executive branch agencies.

There’s a director of OMB. The director is nominated by the president, confirmed by the Senate. For purposes of our conversation, think of OMB as this office within the White House that is charged with conducting these reviews for federal regulations.

There’s also a subdivision or a division within OMB called the Office of Information and Regulatory Affairs, or OIRA. That’s a division within OMB that is delegated the specific responsibility of performing a regulatory review function for OMB.

It’s not a big office. I looked before the show started. The White House says it’s got about 45 full-time career civil servants. That’s not a lot of people if you think about how many federal agencies we have and how many regulations are being proposed and issued each year.

The administrator of OIRA is also, like the director of OMB, nominated by the president and confirmed by the Senate. We have this umbrella agency or office known as OMB. Then within the OMB, we have this division known as the Office of Information and Regulatory Affairs or OIRA, which is a small agency.

Russel: Is OMB a cabinet-level office?

Keith: No. I don’t believe so. It’s not a cabinet-level office. It’s just an office.

Russel: It’s more of a staff function within the executive?

Keith: Yeah. It was created by the Paperwork Reduction Act of 1980, but it is not a cabinet-level agency.

Russel: Interesting.

Keith:

That’s OMB and that’s OIRA. Then what exactly are these two offices doing in reviewing regulation? In the early 1990s, President Clinton issued an executive order called Executive Order 12866. It created this process where OIRA and OMB are charged with reviewing draft and final regulatory actions from a bunch of different executive branch agencies.

In getting ready for the show, I wanted to do a little bit more of a deep dive to get a better understanding of the history of the executive order. Where did OIRA come from? Where did OMB come from? It was an interesting dive into history.

All of this stuff with coordination of review of federal regulatory actions dates to an initiative that was started in the 1970s and then really gained steam in the ’80s and ’90s.

If you think about it from a historical perspective, if you think from the Roosevelt administration and the New Deal, all the way through the 1970s, we had tremendous growth in the administrative state in the United States. We had a ton of new agencies that were created. Those agencies were all given various powers, roles, and responsibilities.

We had this growing and more powerful administrative state created in the United States, but at the time, there was no centralized coordination among the various federal agencies. There was no office within the White House or at the presidential level that was responsible for overseeing the actions of all these different federal agencies.

What was happening is you would have federal agencies taking really important actions without having the input that they needed from the White House or one agency was taking an action that might conflict with another agency.

These actions were starting to have a much greater impact on ordinary people’s lives, with the federal government starting to do more and more, and more and more things.

By the 1970s, when we had really strong federal regulatory involvement, including things like wage and price controls, that’s when everybody started to take a look at, “OK, wait a minute. We need to think about how we’re regulating at the federal level.

” We need to have one, more coordination, and two, better analysis, particularly on the cost-benefit side of the actions that these agencies are taking.”

Russel:

What’s interesting to me as I read your notes and I was looking at this, Keith, is that I graduated high school in 1976. That was during the Ford administration, before Carter was elected in ’78. I very much remember these conversations that were occurring.

There was a lot of things that would be in the news or people were talking about where agencies were moving forward, and the deliberative process that we follow in PHMSA didn’t exist for some of these agencies.

Likewise, they were mandating things, and nobody was taking any look at, “Well, what was this going to cost?” It was starting to cause issues with the economy during the Nixon, Ford, Carter administrations. Then I think when Reagan came in, a big part of what swept him into office was pushback against all that.

Keith:

Definitely, Nixon, Ford, and Carter, you started to see development of this concept of doing more formalized or better cost-benefit analysis for rulemakings, and also this desire to have better coordination within the federal government.

There was an executive order issued in the Ford administration. There was another one that was issued in the Carter administration to try to get more of a regularized process in place. When Reagan came into office in 1980, he issued an executive order in 1981 that started to look more like the modern regulatory review process that we have today.

As you explained, one of the things that Reagan really campaigned hard on was the need to get control of the federal government and the administrative state. That was one of the first things that he sought to tackle when he came into office.

You have this executive order in 1981 creating these new procedures for how we’re reviewing federal regulations. I was fascinated to find out that during the 1980s, these very obscure agencies, the Office of Management Budget and OIRA, became political hot potatoes, kind of.

Russel: Yeah.

Keith:

There was a lot of concern because these newly-empowered obscure offices within the federal government were pushing back on federal agencies, telling them not to do regulations or telling them to go back and do better cost-benefit analysis.

It became extremely political to the point where I think there was legislation introduced in Congress. At one point, there was an effort to try to defund OIRA and OMB and things like that. It was very interesting from a historical perspective.

Russel:

I was in the military during the Reagan administration. Reagan was in from ’80 to ’88. I was in the military from ’80 to ’85. There were a lot of things we were doing around projects in the military that this whole new focus on cost-benefit and all that added a whole another level of analysis that was required to get any project approved.

There were things that couldn’t get done, [laughs] frankly, and I think that was part of the intent. Then the administrative state came back and says, “Well, no. We actually do want to do these things.”

It was a very interesting time to see what was going on, as you had a president that was trying to push back against all the growth we’d seen in the previous 34 years in the federal government.

Keith:

Then after, Reagan issued this executive order. Then when President Clinton came into office in ’93, he issued executive order 12866, which it’s been modified through subsequent executive orders, but that laid out the framework that has remained in place in how we, or at least how the White House, OMB, and OIRA, how they conduct their reviews for rules.

We had this early era where there were battles over the role of OIRA and OMB. What should they be doing in the rulemaking process? You have the Clinton administration that comes in and issues this executive order, which look, an executive order that has been in place for 30 years, they must have gotten something right because it’s not easy to have something like that last.

There have been executive orders issued over time that have tweaked the provisions and made certain changes, but the basic structure that President Clinton laid out in the early ’90s has remained in place.

The way things are set up right now is you have OIRA participates in the coordination and review of rulemakings at two points in the rulemaking process, they review draft rule makings, and then they review final rules.

OIRA is not reviewing every single federal agency rule that gets issued. There are limitations under the executive order in terms of cost impacts to define what rules are significant or warrant review by OIRA. It’s not like the thousands of things that the federal government is doing every day get sent over to OIRA for review.

At least for this category of significant regulatory actions, they’re involved at two points in the process. They do a review when the agency is preparing the draft rules, and then they do a review when the agency is preparing the final rules prior to publication.

In terms of what the substance of that review looks like, in addition to looking to see if the rules that the agency is working on are consistent with overall federal policy, a lot of the heavy lift that they’re doing is to review cost-benefit analysis.

Even though they’re a smaller agency, they do have career folks over there or economists, who are very good on the economic stuff. They’re dedicating a lot of their time to reviewing the cost-benefit analysis that agencies prepare to support their rulemaking process.

We’ve talked about this in prior episodes. PHMSA is somewhat unique in that PHMSA has a cost benefit requirement embedded in its statute. For some federal agencies, they’re only doing their cost-benefit analysis pursuant to the executive order, the provisions in the executive order.

PHMSA, on the other hand, has a statutory requirement that they need to do a cost-benefit analysis. A lot of those statutory requirements mimic or are very consistent with the provisions that were in Executive Order 12866 when it came out in the early ’90s. There’s a lot of the same terms, a lot of the same concepts.

That makes PHMSA a little bit different in that they’re doing this cost-benefit analysis pursuant to the statute basically for all their rulemakings. Whereas if you’re just doing under the executive order, there are circumstances where you’re not doing it pursuant to the statute.

In the case of where we are with the LDAR rule right now. PHMSA did send the final LDAR rule over to the Office of Management and Budget and OIRA for review on October 21st. That review is being conducted pursuant to Executive Order 12866. PHMSA has designated the rule as a significant regulatory action.

The way that the EO works is OIRA has up to 90 days to complete that review. They can extend the timeline for additional number of days, but they can also complete the review faster than 90 days, although I think that’s pretty unusual.

What they’re doing as part of this review, in addition to having OIRA staff sit down and look at what the agencies put together, outside parties can also request to have meetings, to meet with OIRA and PHMSA staff to talk about the final rule. You can also submit comments to OMB and OIRA about the final rule as well.

One of the things that’s unusual about these meetings and these comments is no one other than PHMSA, OMB, and OIRA know what’s in the final rule right now. I’ve done some of these meetings in the past where it’s a little bit odd because you can only work off the information that you have at the time.

All we know at this point about the LDAR rule is what PHMSA put in the proposed rule, the discussion that was had at the GPAC meeting, whatever has been put in the public comments, but we don’t actually know the final regulatory text, anything about what’s in there. We also don’t really know what went into the final cost-benefit analysis.

Russel:

To that point with the LDAR rule, Keith, my observation would be one of the things that’s unique about this particular rulemaking is typically, as a rule goes through GPAC, they get to consensus from the committee. That didn’t happen on everything in this case.

There’s a lot more room for there to be something in the final rule that’s different than what came out of the GPAC meeting.

Keith:

We’ve had clients ask us, “What do you think is going to be in the final LDAR rule?” I’m like, [laughs] “Wait and see. Stay tuned.”

Look, there was a lot of vibrant and significant discussion on the proposed rule and the original cost-benefit analysis. There were concepts that were put on the table that were departed either significantly or at least in some respect from what was in the proposed rule.

It’s been really hard for us to go back to clients and make predictions about where the rule is going to land. The mandate did include a deadline that requires a rule to be issued at least for gas transmission, gas distribution, and certain gathering lines. They have a legal obligation to issue the rule as to those pipelines.

There are some provisions in the statute that the agency needs to consider in developing the rules themselves, but beyond that, there’s a lot of play in the joints on where everything is going to land. What the substance of the rules are going to look like, what compliance deadlines we may have?

Are the provisions for distribution, transmission, and gathering going to be largely the same? Are there going to be big differences? PHMSA also proposed to include requirements for LNG facilities in the rule as well. I think underground gas storage, too.

One of the reasons, I think, why there was so much discussion about this rule is because it impacted every single sector of the industry.

Russel: The entire natural gas value chain is impacted by this rule. Absolutely.

Keith:

I know this is a big priority for the current administration and environmental and safety advocate groups to get this role across the finish line. They do have a congressional deadline that they’re acting under, so that provides additional momentum.

On the other hand of the ledger, there were significant substantive comments that were filed by all kinds of parties in this proceeding that the agency needs to look at and digest in developing the final rule and the final cost-benefit analysis, with an eye toward having a regulation that is reasonable, cost-effective, that’s going to stand the test of time.

Then some of the litigation concerns that we talked about in the last show.

Russel:

A couple things I want to talk about because I find this interesting is that this whole idea of executive orders, probably prior to Trump’s administration, I never really paid any attention to or was aware of executive orders.

They’re not law, but they do direct the administrative state, because the administrative state is effectively part of the executive branch. It’s the president’s vehicle for saying, “This is how he wants you to go about doing your work.”

Keith:

There’s a couple of different, at least the way I think about it, hierarchies or levels of law that I typically deal with. You have the constitution. That’s law. That’s the highest law. You got treaties, you got statutes that are passed by Congress, then you’ve got executive orders that are issued by the president.

Those are traded as law or as regulation with respect to the conduct of people who work for the president in the executive branch. That’s the president’s vehicle for at least the EOs that are at issue here.

Russel: Their directives.

Keith:

Their directives. At least in this case, directives to staff that worked for him on how to do these regulatory reviews, what the process is going to look like. I will say, in the executive orders themselves, there are disclaimers at the end that basically say, “This executive order doesn’t create any rights or responsibilities in any third parties.”

Basically saying other than the people within the executive branch that are being regulated by these executive orders, don’t assume that they’re going to create any rights for third parties, including people who are involved in the regulatory process outside parties.

Russel: The executive branch is immense, and these executive orders do have real impact around what the government is setting as its priorities and how it’s going about doing its work.

Keith:

I think that’s right. When you have a change in administration, whether we see that in a couple of months or not, one of the things you usually see early in the process are revocation of executive orders that the prior administration issued and issuance of new executive orders from the new administration that place an emphasis on their priorities.

When President Trump came into office the first time, we had an executive order dealing with the 2-for-1 to try to reduce, basically, the cost of federal rulemaking. He had an executive order on that.

When the Biden administration came in, one of the first things they did was repeal a lot of those executive orders and then issue their own executive orders going in a different direction.

I expect if there’s a change in administration, or even if it remains in Democratic hands, you’ll probably see some new executive orders from the Harris administration as well.

Russel: Sure. There’ll probably be less change than if it’s the next administration’s, Trump. That is typically what happens when a new administration starts, even if it’s the second term of a president. There’s the whole first 100 days thing.

Keith: From a philosophical standpoint, President Trump, he is not necessarily pro-regulatory on a lot of this stuff. Whereas I think President Biden, and if she’s elected, President Harris, would be more comfortable with more of a pro-regulatory policy. Although even that stuff, pro-regulatory, anti-regulatory, that depends on the issue, too.

Russel: That’s right. It’s like, “What am I regulating?” Exactly.

Keith: Exactly.

Russel: Here’s another interesting observation. You said that the final rule went from PHMSA to OIRA on October 21st.

Keith: Correct.

Russel: They have up to 90 days to do their review. They can do it quicker. Typically, [inaudible] quicker.

Keith: Or they can ask for more time. They can ask for more time, too.

Russel: 90 days from that date is January 21st, which is…

Keith: Something like that.

Russel: Approximately. That is after the new administration is put into office because that’ll be around about the first part of January.

Keith: It’ll be right around inauguration day. The 90-day clock will either run right before it or right after it. I think it’s right before it maybe, but [inaudible] . [laughs]

Russel: If it’s January 21st, the 90-day clock runs out after the inauguration.

Keith:

Again, the outcome of the election, I think, will affect the timing of OIRA’s review of the final rule, and it will also affect the timing of any final rule that we eventually see.

If President Trump comes back into office, there’ll probably be at least an effort by the outgoing Biden administration to try to get this rule through the OMB process before inauguration day. If that does happen, what additional steps will they take to try to get a final rule out?

It would be difficult for them in that scenario to get the rule back, to get it over to the office of federal register, and to get it published as a final rule before inauguration day. It’s not impossible. I just think it would be difficult.

What we’ve seen in previous administrations, in the transition between the Obama administration to the Trump administration, we saw this scenario actually play out. There was a Part 195 final rule that was over at OMB. I think the rule got sent back to PHMSA during the Obama administration.

They announced that they had a final rule ready to go. They released the pre-publication version of that on their website. They sent the final rule over to the Office of Federal Register for publication, but it never got through to the publication process before the change occurred to the Trump administration.

One of the first things that the Trump administration did was they issued a memo from the chief of staff basically freezing all regulations that were in process. That final rule never actually made it into the Federal Register. It was just returned back to PHMSA without publication.

Now, if President Harris prevails in the election, I think a lot of this stuff about timing and pressure that comes off. They’ll know that they have the time they need to have a writer do the review. Then there’s less pressure on the agency to try to get something out in January. They can try to do it in February or March.

You see this a lot at the end of administrations.

Russel:

This is typical. The other thing is every administration has a laundry list of things they’re trying to get over the finish line when there’s an end to their administration. That will happen regardless of who wins the election.

The difference will be that the things that Biden wants to get done so he can claim them as his legacy will be at the top of that list, and the other things that he wants to get done because they’re part of his policy and they’re in alignment with what the Harris administration want to do, those can happen and take a little longer without any substantial change.

If, however, Trump is elected, I think you’ll see him do the same thing. He’ll put a freeze on all regulations. That’s pretty typical when there’s a change in president and party. They tend to freeze everything and say, “Oh, let’s do a review and see what it is we want to do as part of our administration.” It’s going to be interesting to watch.

Having said all this, I will make a declaration, and that is that LDAR is coming in some shape, form, or fashion regardless. It is a congressional mandate, and I don’t see that changing.

Keith: No. Look, I think we will get some version of an LDAR rule. I can’t tell you what’s going to be. [laughs]

Russel: The question is just when, and what’s the final form?

Keith:

When is it going to be issued? What’s going to be in it? What are the compliance deadlines going to look like? I do think a lot of that stuff, given where we are with the election, it will have a direct and significant impact on all of those things.

Like I say, if Vice President Harris prevails, I think we’ll see a rule that’s more consistent with what’s already been under development.

If former President Trump prevails, I think there’ll be at least a willingness to take a harder look at what had already been developed. If something hasn’t already been issued in final form, at least the opportunity to review that and make some changes.

What can you do in the meantime? What we’ve been encouraging our clients to do is look, if you’re concerned about this regulation, go online and schedule a meeting with OIRA to talk about it. I just did this earlier this week. It’s actually not that hard.

They have a website. It’s called reginfo.gov. You can go on the website, click on DOT. It’ll tell you all the actions that are pending. Then you can click on final rules, and it should pull up a list of final rules. When I went on there the other day, there was four.

One of those is this LDAR rule. If you click on that rule, there’s an option for you to request a meeting under EO 12866, and you can do that. You enter your information online. You list the people that you want to have as part of the meeting. You can do the meeting by phone. They have telephonic.

I think they do in-person option, but my experience has always been to do it by telephone, or through Teams, or something like that. You can also submit written comments.

What we’ve been encouraging our clients to do is look, if you’re concerned about this rule, no one’s going to be an advocate for you. You are your best advocate.

If you feel strongly about something in this rule or if you have concerns about what’s in the rule, take this opportunity at the end of the rulemaking process to go in and make OMB and PHMSA aware of your concerns one more time at the end of this process.

Is it likely that it’s going to swing the rule one way or the other? Probably not, but maybe it’ll have an impact. The upside of having a meeting is far greater than the downside. If you don’t say anything, then obviously, you’re not going to have an impact at all.

Russel: The other thing I would say is every operator should assume that LDAR is coming and be working on what you think is an appropriate process for leak survey and mitigation. Then that way, at least you have something in place that you can modify if that’s necessary when the rule gets published.

Keith: Yeah.

Russel: I feel like I’ve not fulfilled my duties here, Keith, because I don’t have a question out of left field from you. I think I’m done.

Keith: Wow. That is surprising. I will take the opportunity to not answer your question out of left field. I was ready for a random football question, which I felt very confident in handling.

Russel: [laughs]

Russel: I haven’t watched a lot of Texas A&M games lately. I did watch a game earlier this year when they played Notre Dame. I don’t know the current state of that there.

Russel: We’re tied with LSU for first place in the Southeast Conference. Both LSU and A&M are undefeated in Southeast Conference play, and we’re playing Saturday evening. I will be there. As always, when I’m at a game like that, I’m not responsible for my actions from kick off to a final gun.

Keith: [laughs]

Keith: That sounds like an awesome experience. I’ve only been to a to a few college football games. Nothing as big as something like that, but it’s an awesome experience. I love college football.

Russel: It’ll be big. It’ll be loud. A&M and LSU have been playing almost as long as A&M and University of Texas have been playing, and it’s a big rivalry. It will be energetic. It will definitely be energetic.

Keith: I wish you all the best. If you get into legal trouble, I am not barred in the state of Texas.

Russel: [laughs]

Russel:

You’re going to have to use that one phone call for somebody else. I can suggest names for people that you might want to call, depending on the nature of the conduct that you’ve been involved in.

[laughs]

Russel: Be safe, stay out of trouble, enjoy yourself.

Russel:

There you go. That’s my motto right there. I’m too old for getting into trouble, and I’m certainly too old for getting out of it.

[laughter]

Russel: Look, hey, I appreciate your time. I know you’re up against some other deadlines with the work. I appreciate you doing this. I know the listeners appreciate you coming on. I get feedback all the time about the quality of what we do with all this, and certainly, you’re a big part of that. Thanks for being here, and we’ll talk to you soon.

Keith: It’s a pleasure, buddy. I’ll talk to you soon.

Russel:

I hope you enjoyed this week’s episode of the Pipeliners Podcast and our conversation with Keith. Just a reminder before you go, you should register to win our customized Pipeliners Podcast YETI Tumblr. Simply visit pipelinepodcastnetwork.com/win and enter yourself in the drawing.

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[background music]

Russel:

If you have ideas, questions, or topics you’d be interested in, please let me know on the Contact Us page at pipelinepodcastnetwork.com or reach out to me on LinkedIn. Thanks for listening. I’ll talk to you next week.

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