Underground Construction - October 2020 - 10

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Army Corps Proposes New Pipeline Permit
With a federal court in Montana having
thrown a monkey wrench in pipeline use
of an Army Corps wetlands permit, the
Army Corps of Engineers (USACE) is now
moving to make changes in its Nationwide
Permit 12, which allows pipelines - whose
construction poses minimal impact on wetlands - to enter a simple, quick regulatory
permit approval process.
The Montana court ruled in a case
initiated by Northern Plains Resource
Council. It argued Keystone XL should not
have been approved because USACE acted
"arbitrarily and capriciously" in not considering requirements of the Endangered
Species Act (ESA). USACE should have
done that, the case claimed, by consulting
with the U.S. Fish and Wildlife Service and
National Marine Fisheries Service when it
issued the latest version of the NWP12 in
2017. The Corps argued that consultation
was unnecessary.
The Corps has 52 nationwide permits
that allow companies doing a wide range
of dredging around wetlands to avoid the
major permitting requirements of the
Clean Water Act, if they will have minimal
adverse environmental impacts. NWP12 is
a broad category, which includes construction of gas pipelines, electric utilities, and
drinking water and sewage projects.
The Corps' new proposal does not
explicitly address the Montana court's
objection. Instead, the Corps proposes to
split NWP12 into three separate categories:
oil and gas pipelines, utility lines and water
lines. In addition, the Corps would reduce
the number of preconstruction notification
requirements that a pipeline would have to
meet, from seven to two.
Those PCNs, when reviewed by a Corps
local engineer, can often result in district
engineers adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are
no more than minimal. These can include
permit conditions, such as time-of-year
restrictions and use of best management
practices or compensatory mitigation
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OCTOBER 2020 | UCONonline.com

requirements to offset authorized losses of
jurisdictional waters and wetlands, so that
the net adverse environmental effects are
no more than minimal.
Beyond reducing the number of PCNs,
the Corps is soliciting comments and
suggestions for national standards or best
management practices for oil and natural
gas pipeline activities that would be appropriate to add to the NWP. There have apparently been complaints about "potential
inconsistency in Corps regional conditions
for the NWPs." In the proposed rule, the
Corps said that "adding national standards
and best management practices to the
text of proposed NWP 12 has potential to
provide additional environmental protection and promote consistency, regulatory
certainty, transparency and predictability."

EPA Eliminates Methane
Emission Restrictions
for Pipelines
The new Environmental Protection Agency
(EPA) rule, freeing interstate pipelines
from Obama-era rules that set volatile
organic chemical (VOC) and methane
emission restrictions, is headed for a
federal court date. Environmentalists had
already filed one lawsuit regarding EPA
methane rules prior to this final rule being
issued and will now file additional lawsuits,
according to Fred Krupp, president of the
Environmental Defense Fund.
At issue are two rules from the Obama
administration, now canceled by the
Trump administration. The first, in 2012,
included transmission pipelines in the oil
and gas category with regard to New Source
Performance Standards (NSPS) for the
first time. That made the pipelines subject
to VOC emissions limits, which mostly
affected pneumatic controllers, centrifugal
and reciprocating compressors, and storage
vessels. The second, in 2016, specifically
added methane emission/leak provisions
to the entire oil and gas category.
It is not clear whether the upcoming
legal action will focus on inclusion of

pipelines in the oil and gas category or the
addition of methane to the category in
2016, or both.
An attorney for the EDF did not respond
to an e-mail asking about the group's intentions. Neither did a Washington attorney
who represented the EDF and a number of
states in a lawsuit filed on July 3, before
the final rule was issued Aug. 18, asking the
federal court in Washington, D.C. to force
the EPA to issue a rule on methane.
In addition to upcoming court cases,
the EPA rule could also be overturned by
Congress under the Congressional Review
Act. That would only happen, however, if
both the House and Senate are captured by
Democrats in the 2020 election.
The EPA final rule on transmission pipelines and then methane was in response to
President Trump's March 2017 executive
order on Promoting Energy Independence
and Economic Growth. It instructed federal
agencies to review their rules and determine if there is an "unduly burden on the
development of domestic energy resources,
beyond the degree necessary to protect the
public interest or otherwise comply with
the law."
The addition of methane in 2016 to
emission reduction requirements has been
the biggest concern of both the transmission pipeline and gas production sectors.
The Interstate Natural Gas Association of
America (INGAA), in a 2019 letter to the
EPA, said: "INGAA's members are concerned about methane emissions and the
lack of predictability on this issue." '"Lack of
predictability" referred to questions about
whether the 2016 Obama final rule would
be reversed by the Trump administration.
In addition, INGAA noted that its members had taken voluntary steps to reduce
methane emissions. "More specifically,
members of INGAA will:
* Install air-driven, low-bleed or
intermittent pneumatic controllers
when installing new pneumatic
controllers, unless a different device is
required for safe operations.

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Underground Construction - October 2020

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