The Correct Answer is … Operator Specific

This post marks the beginning of a series of upcoming posts in which I will explore the current state of Operator Qualification (OQ) compliance in our industry. I’ll share my thoughts and ideas regarding:

1. The evolution of OQ;
2. The contrast between “What was intended” vs “Where we are”;
3. How “Where we are” has actually increased — not decreased pipeline safety-related risks as well as direct risks faced by operator and contractor personnel;
4. What things are currently “broken” — and why; and
5. How we can fix those broken things.

Not everyone will agree with my opinions and arguments (especially some third-party OQ Service Providers and/or the organizations that own them). That’s ok – good things can come from a healthy exchange of ideas. Differing viewpoints are not a bad thing when they’re offered by well-meaning people who are committed to our industry and the folks who are a part of it. My goal here is to make a positive contribution to the conversation.

History

The Operator Qualification (OQ) Rule was published in the Federal Register (64 Fed. Reg. 46853) on August 27, 1999. The intent of the OQ rule is two-fold:

1. To ensure a qualified workforce on jurisdictional pipelines; and
2. Reduce the probability and consequence of pipeline incidents or accidents caused by human error.

Pipeline operators, subject to 49 CFR Parts 192 and 195, must adhere to the OQ Rule. This means they are responsible for ensuring that all personnel–whether employees, contractor employees, subcontractor employees, etc., performing covered tasks on their pipelines, are qualified in accordance with the rule or are only allowed to perform those tasks while under direction and observation of someone who is qualified to perform the same covered tasks.

As of October 28, 2002, operators were expected to have developed their required written qualification program and to require formal qualification of all personnel who perform covered tasks. OQ is not a one-time event, but a process that continues for the working lifetime of an individual.

After the initial evaluation and qualification have been completed, there will be a point in time where re-evaluation and re-qualification will be required. The operator must recognize this and designate for each covered task an appropriate time interval for re-qualification. In addition to being evaluated for technical competence to adequately perform a covered task, qualification of the individual must include the ability to recognize and react to abnormal operating conditions associated with the covered task.

Not Your Traditional Type of Regulation

The OQ rule is a “performance-based” rule. That’s a different animal than the more traditional “prescriptive” rules our industry has traditionally dealt with.

“Prescriptive” rules mandate precisely what a company must do, how often it must be done, and how it must be documented. There is no ambiguity regarding what is expected. Regulatory rules come with “shall statements”. Whether or not a company is complying can be answered with a “checklist” – the same checklist which can be used to measure compliance for EVERYONE to whom the rule applies.

“Performance-based” rules do not include such specific mandates. Typically, these types of rules require that a company craft an internal program which describes how it will go about meeting “higher level” objectives set forth in a particular rule. The purpose behind this type of rule is to acknowledge and account for the fact that different companies have different processes and cultures and that they are better equipped to design a specific approach to meeting a larger objective than a regulatory agency. In essence, the regulator defines the goals/objectives, and the company is afforded the flexibility it needs to design its own processes for achieving those goals/objectives.

Because the OQ Rule is a performance-based rule, it is clear that (1) the operator’s written OQ program, (2) the covered tasks identified within that program, (3) the evaluation criteria used to evaluate an individual’s qualification to perform a given covered task, and (4) related training content should all be based on operator-specific requirements and procedures. PHMSA offers the following guidance (refer to OQ FAQs – Revised March 12, 2024), which clearly reinforces this assertion.

• What responsibility does an operator have if it chooses to use an ‘off-the-shelf’ OQ program? (§§ 192.805, 195.505)
  • An operator choosing to use an off-the-shelf operator qualification (OQ) program—an OQ program that is not created by the operator—is fully responsible for understanding and meeting the provisions of the OQ requirements under parts 192 and 195. The operator must ensure that any OQ program selected is applicable to its operating characteristics, procedures, and equipment. The operator is responsible for any necessary modifications to the selected program to ensure applicability to the operator’s system and compliance with the regulations.

• Are contractors required to use the operator’s procedures when performing covered tasks? (§§ 192.605, 192.805, 195.402, 195.505)
  • Operators must ensure that contractors follow the operator’s written procedures, just as operator personnel must, pursuant to §§ 192.605 and 195.402. An operator may prepare new procedures or adopt procedures developed by a contractor for a particular task if such procedures are reviewed and approved by the operator in advance of performance of the task. The operator is responsible for ensuring that these procedures are acceptable and meet any applicable regulatory requirements. Records of contractor procedures and the operator’s approval of those procedures are required to be maintained. The operator is also responsible for ensuring that the contractors are qualified to perform the covered tasks using these procedures, and that the contractor’s procedures meet applicable regulatory requirements.

• How should training be incorporated in an operator’s program? (§§ 192.805(h), 192.807, 195.505(h), 195.507)
  • Appropriate training is required to ensure that individuals performing covered tasks have the knowledge and skills needed to perform the tasks. Such training should be incorporated in practices leading to the development and qualification of new employees, as well as practices that refresh the knowledge and skills of individuals with considerable experience. The operator shall determine the appropriate training methods for these circumstances. 64 FR at 46861. In particular, any significant change in the procedures for performing the covered tasks should be the subject of training for all individuals performing those covered tasks. Training may also be required for equipment variations or differences. In addition, individuals who fail initial qualification or qualified individuals who fail requalification should be provided with appropriate remedial training in their areas of deficiency prior to reevaluation. It is an operator’s responsibility to provide training to ensure individuals have the skills and knowledge necessary to perform covered tasks on the operator’s unique pipeline system. Operators must retain these appropriate training records to support individuals’ qualifications and requalifications.

• What is the role of computer-based or web-based training in complying with the OQ Rule? (§§ 192.805(h), 192.807(a)(4), 195.505(h), 195.507(a)(4))
  • Operators may choose the type and method of training; computer-based and web-based training represent two permissible choices available to operators. Training must address an operator’s pipeline system characteristics, equipment, and procedures. See 64 FR at 46863. Training programs and methods may be reviewed by regulators during inspections.

• Should operators implement measures to ensure that the procedures on which qualification is based are consistent with the operator’s O&M procedures and the actual practices implemented in the field? (§§ 192.805, 195.505)
  • Yes

In 2015, PHMSA published a notice of proposed rulemaking (NPRM) that would have changed the OQ Rule in a number of ways. That NPRM was not adopted, but it did shine a light on the goals and objectives of PHMSA. In that NPRM, we saw some examples of regulatory intent related to assuring OQ qualifications are consistent with operator procedures, such as:

• The OQ program must, at a minimum, include provisions to ..… provide training to ensure that any individual performing a covered task has the necessary knowledge, skills, and abilities to perform the task in a manner that ensures the safety and integrity of the operator’s pipeline facilities…..
• The operator must, at a minimum, include and use the following measures to evaluate the effectiveness of the program….. individual did not follow approved procedures and/or use approved equipment.….

In the last 20 or so years, there are numerous examples of OQ-related audit findings and fines being levied against operators – many of which are related to the operator’s failure to train and qualify personnel in accordance with the operator’s own procedures.

Where are We?

Today, a significant number (in my experience, a majority) of regulated pipeline operators have chosen to adopt “off-the-shelf” OQ solutions from various third parties. In doing so, they’ve chosen to adopt someone else’s covered task list, someone else’s evaluation criteria, and someone else’s training content. This is true particularly as it relates to the qualification of contractor personnel. I’ve seen many cases where pipeline operators who “accept” contractor qualifications from multiple 3^rd parties. This is particularly troublesome!

I would argue that this has us in exactly the wrong place. It has become the norm that training and evaluation criteria are not aligned with the operator’s O&M procedures and actual practices implemented in the field – particularly as it relates to the qualification of contractor personnel.

This place we’re in poses big risk. Even to the most risk-neutral among us, the risks and potential liability operators are creating for themselves is significant – and I would argue unnecessary and unacceptable. One need only review the guidance provided by PHMSA (see above) to recognize the regulatory compliance risk created by approaching OQ this way.

It’s not difficult to recognize even greater risks when looking beyond regulatory compliance. We’re more likely to get people hurt and cause damage. The risk of that is bad enough – but imagine being an operator having to defend yourself in a civil legal action where someone is injured (or worse) and you made the choice to train and qualify the individual on someone else’s criteria – criteria not related to your own procedures. I’m not sure that fight can be won.

Imagine how much stronger and how much more effective your program could be if your organization utilized evaluation criteria and training content that is directly tied to your own company procedures.  Imagine how much more defensible it could be to regulators and others.

In the next post, we’ll discuss how and why we got here. Understanding that is important if we hope to fix it!

Contact Us

Contact us today to discuss how Systemic Compliance can help. We’re confident we can be a valuable and cost-effective partner for ANY operator in designing, implementing, and evaluating the effectiveness of your OQ program.

COMPLIANCE SHOULD BE SYSTEMIC!