Senate Approves FERC Nominees
At long last, the Federal Energy Regulatory Commission (FERC) can now proceed to vote on a backlog of key natural gas pipeline projects, contested rate filings, and enforcement actions now that its long-waited quorum has been restored. On August 10th, Robert Powelson was sworn in as a third commissioner, bringing the agency back to a voting quorum, which has been lacking since February. Powelson joins Neil Chatterjee, new FERC Chair, who was sworn into on two days earlier. Commissioner Cheryl LaFleur remains on as the sole democratic commissioner. Chatterjee, formerly a senior energy adviser to Senate Majority Leader Mitch McConnell (R-Ky.), is serving out the remainder of a term that ends in June 2021. Powelson, current president of the National Association of Regulatory Utility Commissioners, will serve out the remainder of a term that ends in June 2020.
At least three commissioners are required for the agency to vote on key infrastructure filings and orders, including natural gas pipelines and liquefied natural gas pipelines. FERC unexpectedly lost its quorum in February when former chair Norman Bay left prematurely. The lack of a quorum left tens of billions of dollars’ worth of natural gas pipeline projects in limbo, including the $5.5 billion Atlantic Coast Pipeline and the $2.1 billion Nexus pipeline.
For the past several months, DCA has worked as a member of the Energy Equipment and Infrastructure Alliance (EEIA) as well as the ad hoc “Energy Infrastructure Coalition” to encourage the Senate to act. In the weeks before, senators gave up hope on passing a health care bill and leaving town, these coalitions turned up the heat. In a letter to Senate Leadership, 26 national associations and unions made a strong case for the Senate to move.
“FERC plays a critical role in ensuring that Americans have access to safe, reliable, and affordable energy. Regardless of the energy resource, moving energy safely and efficiently to where it is needed requires a modern and highly interconnected system. Innovation is driving new opportunities. Projects bring an influx of investment and jobs to all corners of the country. This means wages are paid to local workers and money is spent in local economies. While energy infrastructure development delivers this opportunity locally, the impact resonates across America. We ask you to schedule votes to confirm new FERC commissioners to fill the existing vacancies as soon as possible. Robust energy infrastructure creates jobs, improves safety and spurs domestic investment, and these benefits are placed in jeopardy when FERC seats are left empty. Restoring a quorum at FERC is a bold step toward a stronger future, and we ask that you do so as quickly as possible.”
The Senate answered this call, and DCA was proud to be part of the effort. Initiatives like this underscore the power of solidarity among competitive industries working together.
Pipeline Permitting Reform Measures Pass in the House
Only weeks after a team of DCA citizen lobbyists took to Capitol Hill to push new pipeline permitting reform legislation, the House passed the Promoting Interagency Coordination for Review of Natural Gas Pipelines Act (HR 2910) on July 19. The bill would strengthen the role of FERC as the lead agency to approve natural gas projects subject to the National Environmental Policy Act (NEPA), and encourage concurrent review of permit applications by the multiple federal and state agencies involved in reviewing projects. The bill also calls for federal permits to be approved no later than 90 days after FERC completes its environmental reviews.
Permit reform legislation, which has been a DCA priority since kicking off its federal advocacy program, is expected to bring greater certainty, accountability, and transparency to the permitting process to authorize natural gas pipelines.
This year, DCA signed on multi-industry coalition letters and sent its own letter in support of HR 2910. In our letter to the House Leadership, DCA indicated that “many parts of the country do not have the necessary pipeline infrastructure to meet the rising demand – an appreciable number of pipeline projects must be approved to achieve that capacity. The rising demand for expanded
natural gas distribution systems underscores the need for expanded interstate transmission pipeline capacity in order to deliver that energy to local markets,” and that “Unfortunately, important pipeline projects are often mired with extended reviews while acquiring federal and state permits, grants of rights-of-way and approvals from various federal, state and local agencies.” The House passed HR 2910 on a 248-179 later that week. DCA is now working with industry allies on encouraging introduction of companion legislation in the Senate, which we hope will happen when lawmakers return from the August recess.
Trump Executive Order to Speed Infrastructure Construction
Reforming the permitting process has become popular on both sides of Pennsylvania Ave. On August 15th, President Trump signed a new executive order (EO) to improve the federal permitting process for construction of transportation, water and other infrastructure projects by establishing “one federal decision’’ for major projects and setting an average two-year goal for permitting. The EO allows the Office of Management and Budget to establish goals for environmental reviews and permitting of infrastructure projects and then track their progress. Importantly, reviews are to put on a fast track to senior agency officials when deadlines are missed or extended, according to the order.
“This over-regulated permitting process is a massive self-inflicted wound on our country,” Trump said at a press conferenceannouncing the order. “It’s disgraceful.”
The EO also revokes an earlier order signed by President Obama that required projects with federal aid located in flood plains take rising sea levels into account. Trump has suggested the predicted risks from sea level rise driven by climate change are overblown. Describing the EO, Trump said projects will still be subjected to environmental safeguards. “It’s going to be quick, it’s going to be a very streamlined process,” the president said. “And by the way, if it doesn’t meet environmental safeguards, we’re not going to approve it. Very simple. We’re not going to approve it.”
The construction industry has urged the president to revoke the flood plain order because it was overly bureaucratic and increased project costs. The Obama order was especially burdensome because it didn’t standardize across the government how sea level rise was to be taken into account, and DCA applauds the president on the latest action to inject common sense into the permitting process.
PHMSA Study on Damage Prevention Technology Supports DCA Priorities
DCA supported a provision in last year’s Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act that required the Pipeline and Hazardous Materials Safety Administration (PHMSA) to conduct a study on improving existing damage prevention programs through technological improvements. Specifically, the PIPES Act directed PHMSA to identify methods to improve existing
damage prevention programs through location and mapping practices or technologies; analyze increased use of global positioning system (GPS), other digital mapping technologies, public awareness initiatives mobile devices and other advanced technologies could help reduce damages to underground facilities. The PIPES act also required the study to look at methods to improve excavation practices or technologies, and identify opportunities for stakeholder engagement in preventing excavation damage.
PHMSA called on the Common Ground Alliance (CGA) to put together a report to be included as a significant part of the mandated study. CGA in turn established five teams to address each of the required areas mandated by the PIPES Act. DCA staff and members contributed heavily to the CGA contribution to this report. PHMSA also approached eight other industry organizations for their input, including DCA.
DCA has long pushed for mandatory participation in the one-call process because exempting any stakeholder from the process only compromises safety and damage prevention. Municipal exemptions pose a unique problem because of the enduring threat of cross bores on unmarked sewer mains and lateral. DCA has encouraged policymakers at the federal and state level to do what they can to require municipalities to belong to their respective one-call center, thereby requiring them to locate and mark their facilities. In response to PHMSA’s request for information, DCA submitted a package of materials, including DCA’s position paper on cross bore
mitigation, for PHMSA’s consideration. We’re pleased to report that our materials were accepted in full as part of the appendices of the study and PHMSA’s recommendations to Congress are absolutely consistent with DCA’s position. The following is taken from the PHMSA report:
Exemptions in state laws. Removal of exemptions in state laws to require all facility owners to be members of onecall systems and to locate and mark their underground facilities. Such exemptions create gaps in safety. This is particularly true when there is a threat of a “cross-bore,” which occurs when an existing underground utility or underground structure is intersected by a second utility. This can compromise the integrity of either or both intersecting facilities, and has occurred numerous times during installations of gas distribution lines using trenchless technology.
Gas distribution lines have been installed through cross-bores that penetrated unmarked underground sewer lines. In these situations, the penetrating gas line can be compromised if a sewer line clog occurs and a “roto-rooter”-type machine is used to clear the clog. The gas line can be cut or completely severed, and the sewer line can provide a direct path for leaking natural gas to migrate into one or more homes or other structures. This can pose serious, life threatening consequences.
There are many programs and initiatives underway to address legacy cross-bore issues. However, some state one-call laws exempt municipalities (i.e., sewer line operators) from the requirements to mark/locate sewer lines. This can result in an increased possibility of sewer line cross-bores. Requiring full participation in one-call systems by all underground facility owners and operators
so that they are responsible for locating and marking their facilities would significantly reduce the threat of any new cross-bores occurring. Additionally, requiring that all newly installed pipelines be locatable using electromagnetic equipment would further reduce the threat of pipeline damage resulting from cross-bores.
It’s important to note that the intent of mandating this study was to identify ways to improve damage prevention programs through location and mapping practices or technologies, something that DCA has pushed for years in communications with Capitol Hill, conversations with PHMSA, participation in the CGA, our workshops with the American Gas Association, and other venues. The PIPES Act required the PHMSA to make recommendations on how to incorporate info existing damage prevention programs, technological improvements and practices that help prevent excavation damage. In addition to the CGA contribution to the study, the PHMSA report presents the following recommendations:
1. Development of collaboration/communication tools that foster better communication between the excavator and pipeline operator throughout the excavation process.
2. Evaluation and implementation of predictive analytic tools to identify and address high-risk excavations.
3. Improvement and implementation of GPS/GIS technologies in accurately locating and documenting the location of underground facilities.
4. Require damage data reporting.
5. Promote universal participation in the one-call process.
6. Consider development of national standards for certain state one-call requirements.
7. Implementation of the program started by PHMSA in 2016 of evaluating state damage prevention enforcement programs.
8. Pursuit of improvements in locating processes, technologies, and right-of-way monitoring technologies.
9. Promote the continued identification and implementation of the CGA and other damage prevention best practices, including effective ways to communicate and reach out to the public, and the education of stakeholders toward the benefits thereof.
DCA would like to thank its members who participated in the CGA contribution to this report, as well as members who have worked on the association’s cross bore initiative. There is obviously much work left to be done, but this report will have a long shelf life, and will significantly help our efforts to encourage better locating and marking on behalf of underground facility operators and reduce
municipal exemptions from the one-call and damage prevention process.
Washington, D.C. Fly-In, November 6 – 8, 2017
If You Are Interested in Attending, Contact Eben Wyman – More Details Will Follow
Eben M. Wyman