In this week’s episode of the Pipeliners Podcast, host Russel Treat is joined by returning guest Keith Coyle, of Babst Calland, to discuss the upcoming Gas Pipeline Advisory Council Meeting (GPAC) on Leak Detection and Repair (LDAR).
They cover the ongoing regulatory rulemaking process, the GPAC’s role in reviewing the proposed LDAR rule, and the challenges faced during the GPAC meetings.
Keith also provides insights into the potential impact of the upcoming election on the rulemaking timeline and touches on another agenda item related to class location changes for pipelines.
Upcoming GPAC on LDAR 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.
Upcoming GPAC on LDAR Full Episode Transcript:
Russel Treat: Welcome to the “Pipeliners Podcast,” sponsored by EnerSys Corporation, providers of POEMS, the Pipeline Operations Excellence Management System, compliance and operations software for the pipeline control center to address control room management, SCADA, and audit readiness. Find out more about POEMS at EnerSysCorp.com.
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, Russel Treat.
Russel: Thanks for listening to the Pipeliners Podcast. I appreciate you taking the time.
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This week, Keith Coyle returns to talk to us about the upcoming Gas Pipeline Advisory Council meeting on leak detection and repair. Keith, welcome back to the Pipeliners Podcast.
Keith Coyle: Thanks for having me on again, Russel. I am rested. I am back in the safe confines of my own home. I am not speaking with you in a hotel room after four days of intense public meetings. Hopefully, the listeners get a newer fresher version of Keith than they had last time.
Russel: [laughs] That feeling was mutual for sure. Since you and I both had an opportunity to relax for a minute and get through the holidays and shake around the cobwebs, I want to ask a high-level question. You’ve become the Pipeliners Podcast guru on all things regulatory rulemaking. Where do you think we are, at a general level, around this LDAR rule?
Keith: On the leak detection and repair rule, we are in the midst of the rulemaking process that PHMSA is required to follow by statute. One of the things that PHMSA has to do for its proposed rules is present the rulemaking proposal and the supporting documentation, including the cost-benefit analysis, to a federal advisory committee that’s known as the Gas Pipeline Advisory Committee, or GPAC.
PHMSA started the process of presenting the proposed Leak Detection and Repair rule, or LDAR rule, to the GPAC back at the end of November and early December of last year. They got about halfway through the listed items on the agenda. We’ve got some items that they still need to work through.
In terms of where we are in the rulemaking process, we are past the phase where PHMSA has proposed a rule. We are in the phase where PHMSA has presented that rulemaking proposal to the GPAC for a review.
Then, once the GPAC completes that review, we’ve still got some more baseball to be played. We’ve got some things that need to happen over at PHMSA and within the Department of Transportation, and then within some other executive branch agencies before we get to a final rule phase of the proceeding.
I don’t know where that leaves you on your rulemaking clock. I think it’s past 6:00 PM. Maybe not near midnight just yet.
Russel: I’m thinking it’s more like 3:00 in the afternoon, but I’m with you.
Keith: [laughs] In the broad sweep and evolution of a rulemaking process, we are closer to the end than we are to the beginning, as Churchill may not have said.
Russel: That’s certainly true. For the folks that didn’t listen to Keith and I’s last episode, which dropped back in early December — we did it right after or, actually, right before the last day of the last GPAC meeting — the nature of the comment that is occurring in the GPAC, it’s very, very tedious, very tedious.
There’s lots of conflict, I would say, between the industry and the state regulators, which tend to be more on the same side about most of the issues, and the public representatives that are on the GPAC. I don’t expect that to change as we move forward. I think we’ll get through it, but there’s lots of challenging work left to be done.
Keith: It might be a little bit helpful to frame the issues to talk a little bit more about what the GPAC actually does, and how this rulemaking process came before it.
The GPAC is a Federal Advisory Committee. There are 15 members on the GPAC. There are five government representatives, five industry representatives, and five representatives from the general public.
Then there is a PHMSA official, the Associate Administrator for Pipeline Safety. He serves as the designated federal officer, the high-level guy who runs the show for purposes of the GPAC. When Congress added this GPAC process to the statute, the intent of the provision was to get additional input from an expert advisory body that will hopefully improve the rulemaking process.
Provide the agency with feedback from a mix of stakeholders outside of the ordinary comment process, to get this advisory body to dig into some of the details on the proposal, and also to do a deep-dive on the supporting documents that PHMSA is supposed to develop in the rulemaking process, particularly the cost-benefit analysis.
I totally agree with you that the GPAC process is slow. The ship of state moves slowly. You would probably find that on any 15-member body pretty much anywhere in the world. Things move slow. It’s hard to even schedule these meetings to get 15 people to show up anywhere at the same time is difficult. PHMSA has got to bring in all of its rulemaking staff and get everything queued up.
The intent of the process is to provide additional input in the rulemaking proceeding with the hope that at the end of the day, we end up with a better rule than what we started with. The GPAC is advisory. It is not a body that provides binding recommendations to PHMSA. They make recommendations. They provide suggestions and alternatives.
PHMSA is required to consider those recommendations and alternatives, but it is not bound by them. The intent of the process is to make rulemaking better, and the only way you can make rulemaking better is if you spend the time that’s needed to do it.
We’ve seen that on full display with this rule with five days having already been put in the bank and we got five more days to come in. That’s my thoughts on the process.
Russel: The other thing too for people who have never been involved with a GPAC is it can get quite detailed and quite specific.
That’s really one of the values for PHMSA is they get very thorough feedback from a smaller body of folks with lots of expertise and lots of history in a broad basis of knowledge because it’s not just industry folks. It’s also public folks, and the public folks that are on the committee are knowledgeable in their domains.
Keith: Yeah, and it’s always good to get feedback from people that are outside the building. I worked at PHMSA for several years. I know you can get confined to the views that circulate within the agency about the things that you are doing. You can have this effect where you’re all locked in the agency, you are all in the building, you all see things the same way, or you start to see things the same way.
Anytime you have the opportunity to get out into a process where you have public input from a variety of different stakeholders, that’s good. It’s healthy for the rulemaking process. Again, the endgame of all of this is to hopefully make a better rule at the end of the day, or to get to a better product than what you started with.
Russel: The other thing to understand is these rulemakings largely come out of either incidents or congressional mandates or both. There is a public interest in these rules happening. We’re operating in the public interest as we do this. Maybe it’d be helpful to talk about what actually got accomplished in the last GPAC meeting at the end of November, beginning of December.
Keith: When we originally started that five-day meeting, it was slated to consider two rulemaking proposals. The first was the LDAR rule that we’ve been talking about. The second was this other proposed rule related to changes to the classification requirements.
It became obvious within the first day or so that we weren’t going to get two rules done. Then it became obvious at about the third day or so that we might not even get one rule done.
Where things landed in terms of the committee’s review of the LDAR rule, they got through about half of the items on the agenda. They ticked four of the boxes. They reviewed the proposals for operation maintenance and venting, leak surveys and patrols, the advanced leak detection program requirements, and leak grading and repair.
PHMSA presented each of those proposals to the committee. There was extended debate and discussion. They had votes and recommendations on the rule at the conclusion of each of those agenda sessions. They did quite a bit of work in reviewing the proposed rule.
They also started the discussion on the provisions related to gas gathering lines, but they didn’t complete that when the meeting adjourned on Friday. That’s where we left things off. They got about halfway done, and there’s still some food on the table that they need to finish.
Russel: For anybody who’s interested in the details of those discussions and those votes, they should listen to “Episode 313” that dropped on December 5th. We won’t cover all that. We’ll move forward. What specific things related to LDAR are going to be on the agenda for the meeting at the end of March?
Keith: We’ve got, what I’ll say, maybe five items left. Item one is going to be a continued discussion of the proposed requirements for gas-gathering lines.
Then they’ve got four other things left on the agenda, the large volume release reporting requirements, requirements for LNG facilities and hydrogen pipelines, compliance deadlines, and then they’ve got at the end, operator qualifications and everything else, the mixed bag or the leftovers.
Things will start with a continuation of the discussion on gas gathering lines, and then they’ll try to tick through the four remaining items on the agenda. There’s still some very significant things that need to be discussed, despite all the work that the committee put in over the first five days.
Russel: Do you have any opinion or sense about what special notes might be related to either hydrogen pipelines or natural gas pipelines with hydrogen blended in?
Keith: The topic on LNG facilities and hydrogen pipelines is interesting for a couple of reasons. The first thing that is interesting about it is both of those things are outside of the congressional mandate in Section 113 of the Pipes Act that prompted this rulemaking.
That congressional mandate was limited to gas transmission lines, gas distribution lines, and certain gas-gathering lines in Class 2 locations, Class 3 locations, and Class 4 locations.
In their proposed rule, PHMSA went beyond the mandate and proposed to extend these leak detection repair requirements to LNG facilities, and they also mentioned some things about hydrogen pipelines.
Both of those things operate in very different ways than the stuff that is subject to the mandate. I worked on some comments and review of the proposals for LNG facilities. A couple of things that jumped out at me right from the gate where there really wasn’t any discussion at all in the cost-benefit analysis dealing specifically with liquefied natural gas facilities.
They did propose regulations on that topic, but they didn’t really dig into these are the facilities that will be affected, and these are the potential costs and benefits. That aspect of the proposal. The same thing on hydrogen pipelines. I have some friends in the business that work in that industry.
They’re concerned about a rulemaking that was designed to be focused on gas and methane emissions and applying those things to hydrogen pipelines. They’re concerned about it. They feel like the industry operates in a different way.
I’m not really sure they feel confident that we’ve vetted all the issues that need to be vetted to even propose a rule dealing with issues related to hydrogen pipelines, let alone advance it to a final rule under the timeline that PHMSA has been talking about.
Russel: I would agree with that. There are pure hydrogen pipelines in the US. If I remember correctly, it’s about 1,500 miles of hydrogen pipelines in the US currently. As people know, that follow the news, there’s lots of conversation about using hydrogen for all kinds of energy delivery.
I’ve done a bunch of stuff on the technical issues around brittle mud and measurement and so forth related to hydrogen. I could see that getting really complicated and spun out. I don’t know. We’ll see when we get there.
Keith: From my perspective, I feel we’ve got a lot of balls in the air with this role already. We’ve got our hands full with transmission distribution in the gathering lines within the mandate. I’m not sure this is the right rulemaking process to go beyond that and try to pull in this other sector of the industry that has some very different and unique issues.
I see that as if this is something that should be done or needs to be done. Hopefully, that’s something that can be tabled and taken up in a different rulemaking process.
Russel: Certainly, that’s been done in other rulemakings where they got broken up into more manageable bits. Some of that tends to happen because one of the things that occurs as you get through the GPAC process is you start getting clear about what do we have enough information to complete and where do we need more information?
Keith: That’s healthy. Agencies should be doing that. You get feedback. You start to get through the rulemaking process and maybe you make decisions about, “Well, this aspect of the rule, we should hold off on this, get some more comment. Maybe go back, update the cost-benefit analysis, handle this separately,” because again, you want to make sure you have the best product.
PHMSA is operating under this congressional mandate, but that congressional mandate is specific as to certain types of pipelines. Congress has weighed in on what it thinks should be given the higher priority in the statute. Some of these things like LNG facilities or hydrogen pipelines clearly fall outside of that, and it should be handled separately.
Russel: It certainly makes sense. Once we get through this meeting in March, what happens next? Where do we go from there with this particular rulemaking?
Keith: The GPAC process is designed to have the GPAC produce a report with recommendations on the proposed rule. PHMSA has said that the voting slides and transcripts from the public meeting constitute the GPAC’s report.
When that’s all wrapped up, PHMSA is supposed to take a look at the report and provide the GPAC by statute with feedback within 90 days on its recommendations and alternatives.
Then, within the agency, what PHMSA will do and it probably has already started to do this in some respects is prepare a new version of the final rule and final supporting documents that PHMSA wants to sign off on and send upstairs in the Department of Transportation. PHMSA is a modal administration within the Department of Transportation.
There is the Secretary of Transportation, Pete Buttigieg. He’s the head guy right now. When PHMSA does its rulemaking processes, they need to send those things upstairs to get reviewed and cleared.
Once PHMSA pulls together what it thinks is a version of the final rule and supporting documents, it will send it up to the Office of the Secretary of Transportation for review.
Once that review is complete, then the rule will be sent to a different executive branch agency. It’s the Office of Management and Budget. There’s this very obscure sub-agency within OMB called the Office of Information and Regulatory Affairs, or OIRA.
Probably never heard of OIRA, but it’s a very powerful and important agency within the federal government. OIRA is tasked with, basically, reviewing all significant rules from all kinds of different agencies. They do this review of the rule. It’s supposed to happen within 90 days. Doesn’t usually happen within 90 days, by the way.
If they clear it, they send it back to the originating agency, in this case DOT and PHMSA. Then the originating agency can publish a final rule with the force and effect of law in the Federal Register.
Russel: We’ve got the final GPAC in March. The output of that meeting will have to be processed by PHMSA. That’s going to take some time. Then they’ve got to get it to…You’re right. I’ve never heard of OIRA before. As always with you, Keith, I’m always learning. I’m always learning something new. Even after the GPAC, at a minimum, we’re probably six months away.
Keith: That part is harder to predict. We know who needs to do what. We just don’t know how long it will take. I also know that this rulemaking is a high priority for the current administration. They have put a lot of time, energy, and resources into moving it forward. They really want to get it done.
There are arms that can be twisted and ways to move things faster within the federal government. I just want to say thank God it’s not me trying to get that done. I’ll leave that job to somebody else because that can be difficult.
You have a content problem. You have a review problem. You have to get the content right. That takes time. You have to write the final rule. You have to consider the comments that are already in the record and then whatever else is provided to you from the GPAC.
You’ve got to fix all of your supporting regulatory documents, get all that right. Then you’ve got to get some other people to review and sign off on your work. That can take time. You can do things to expedite it and move it.
Then the other side of the equation is making sure you get things right. You don’t want to come up short in moving a rule faster than you otherwise should because that creates legal risk for the agency in terms of future litigation and judicial review of the final rule. It’s a balance. You want to move as quickly as you can without compromising the integrity of the rulemaking process.
Russel: That’s for people at a much higher pay grade than me. I think you’re right. Certainly, in my conversations, it’s clear that this is a high-level priority of the current administration. It’s a high-level priority of the agency.
This is just a wild guess. It’s not even an educated guess. It’s just a flat wild guess. I think it’s a minimum of six months to get to a final rule being issued. It could easily get longer than that. Then the other thing you have to consider is we’re in the midst of an election cycle. The election cycle can affect all this. I’ll let you speak to that, Keith.
Keith: I do think that the upcoming election is something that’s going to be a factor in how this rulemaking process plays out. If the current administration wins in November and they know they’re going to be coming back in January, I think some of these concerns with timing go away a little bit because they’ll know that they have some additional time in office to get the rulemaking done.
If the current administration does not win in November, I think an entirely different dynamic will come into play. They will know they only have a short amount of time left.
They will need to make a decision as to whether this is one of those rules that’s going to be in a pile of a lot of rules at the end of an administration, that needs to be expedited and issued before a president leaves office.
We get a very long line of rules at the end of administrations that are either undergoing the interagency review process, or that even make it over to the Office of Federal Register, which is the office that publishes final rules when the rulemaking process is complete. This isn’t just a theoretical concern. This actually happens, including to PHMSA.
There was a PHMSA liquid pipeline rulemaking proceeding that got almost to the finish line back in 2016 and 2017. There was an election that resulted in a change in party holding the White House. That final rule, even though it was in line over at the Office of Federal Register to be published, never got published and still has not to this day.
That’s one of the choices or factors that will impact the timing of this rule as we move forward through the election.
Russel: The other thing I would say that the listeners should keep in mind as they’re listening to us have this conversation is this whole rule is the result of a congressional mandate. Regardless of what occurs in this election cycle, that congressional mandate does not go away.
Keith: The deadline in that mandate has long since passed. There’s an understanding within the Congress that agencies aren’t always capable of meeting some of these statutory deadlines. At least, I hope that’s the understanding.
PHMSA has a lot of rulemaking mandates that are in cue right now, but there is a deadline. We are past that deadline. It will continue to be a rulemaking that needs to get finished if for no other reason there’s a statute out there that says it should have already been done.
Russel: Absolutely. We probably ought to talk about the other items that will be on the agenda, and may be addressed in the next GPAC. That’s the class location stuff. Maybe you could give us a high-level overview of where are we with class location and what’s on the agenda.
Keith: The class location rulemaking proposal was issued by PHMSA back in October of 2020. The rule is designed to provide operators with relief when they experience changes in class location along a pipeline, or increases in population density.
The way that PHMSA’s regulations are set up, there are four different class locations. They are designed to provide a rough approximation for population density near a pipeline. Class 1 is the least dense class location. Class 4 is the most dense.
A lot of the provisions in the Pipelines Safety Regulations vary based on the class location for a pipeline. It starts in the design phase, and it runs all the way through the life cycle of a pipeline.
One of the things that happens when you have a class location change or increase in population density, you have to confirm or revise your maximum allowable operating pressure under PHMSA’s regulations, or MAOP.
A lot of operators, when you have these class location changes, you may go from a Class 1 location to a Class 3 location because of things that have happened around your pipeline.
When you need to go confirm or revise your MAOP sometimes that forces operators to make some difficult decisions about the path forward for that pipeline. They can either conduct a new pressure test, they can lower the MAOP for the pipe, or they can replace the pipe. Those are some of the big options that they have in terms of what they can do.
In a lot of cases, those options can be draconian. The class location approach dates back to the original regulations that PHMSA issued in 1970. We have a lot of new modern regulations that help us accommodate changes in risk, or to better manage changes in risks that occur along a pipeline.
What this class location proposal was designed to do is to allow operators, when they have a class location change, to manage that change through use of the integrity management program requirements as opposed to having to do a new pressure test, lower the MAOP, or go out and replace the pipe. That’s what this rulemaking proposal is about.
PHMSA has been issuing special permits or waivers from its class location regulations for many, many years. There’s a well-established body of precedent dealing with class location special permits.
They’re trying to take that approach and codify it in the regulations, so that operators don’t need to come for special permits. They have a set of regulations that they can follow to accommodate these class location changes.
Russel: I don’t have a follow-up question to that, I guess. That conversation, those items are going to be on the agenda coming up.
Keith: That’s something that the GPAC is going to have to look at at this next meeting. I think it’ll take time. Hopefully, not as long as we’ve spent on the LDAR rule.
I know this is a high priority for the industry, particularly for the gas transmission sector. Class location changes can affect very small lengths of pipe. The compliance cost can be considerable. In a lot of times, there’s not a lot of meaningful improvement in pipeline safety from following the current rules.
If you have an otherwise perfectly good piece of pipe — you’re managing the integrity of the line, you have tons of data from inline inspections, and other things — requiring the operator to do new pressure testing or lower MAOP or cut that piece of pipe out, it doesn’t make a whole lot of sense.
It can also have some detrimental effects in terms of increasing methane emissions and environmental impacts, and things like that, so this is a priority for the industry. I know they’re looking forward to getting it moved through this meeting in March.
Russel: The things that the industry wants done, they tend to move more quickly through the GPAC process.
Keith: We’ll see. We’ll see.
Russel: I know, we’ll see. You have to be really careful about making any comments like that. You being an attorney, you can’t make those comments. Me being an engineer, I can make those comments.
Keith: No. I am often wrong, but never in doubt. That’s one of my best characteristics.
Russel: That’s what makes you a good attorney there, Keith.
Russel: That’s right. Look, this is awesome. I look forward to seeing you in person again in March. I’m planning to be at the GPAC because I know you will be. Let’s hope that it’s not as excruciating as the last one.
Keith: I will try to drink less coffee to keep myself a little bit more fresh in case we pull up on the side and do another podcast. That’s a promise I will not keep. I will drink way too much coffee. I will be jittery in the back of the room for the whole meeting. By Friday, I’ll be a mess.
Russel: Well, I’m with you on that one. I’m with you on that one. Thanks again, Keith. Always appreciate you coming on. You’re always so well prepared and have such great information. I will tell you that I’ve gotten, recently, some very good feedback from listeners about the value you bring to the podcast. Thanks for all you do.
Keith: No, it’s a great opportunity. I love doing it. If you can use OIRA at a cocktail party, I’ll be happy.
Russel:I don’t think so.
Keith: All right. Talk to you soon, Russel.
Russel: I hope you enjoyed this week’s episode of the Pipeliners Podcast and our conversation with Keith.
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