[Docket No. PHMSA 2012-0102]
PHMSA published final rules to update the administrative civil penalty maximums for violation of the pipeline safety regulations, provide for requests for specific information (RSI) at any time, rather than only pursuant to an inspection, changes in informal hearing procedures and various technical corrections. The new rules are effective October 25, 2013 and implement the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (the “2011 Pipeline Safety Act”) as well as make other corrections.
PHMSA believes that the amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators.
See related article on the original NPRM in September 2012 edition of the DOT Pipeline Compliance Newsletter.
Requests for Specific Information (RSI)
- An RSI can be issued by PHMSA at any time, not only pursuant to an inspection.
- An RSI has a default response time of 30 days (shortened from 45 days) or the time specified in the RSI (which can be shorter or longer).
Inspections and Investigations
- Operators must provide all reasonable assistance in investigation of an accident or incident and make all records and information available.
- Any person who obstructs an investigation can be subject to administrative civil penalties.
- Operators are required to respond to requests for further information for inspections and investigations within 30 days, unless another deadline is specified.
- An operator may request an extension to the deadline, however, such a request must be in writing and specify the specific need for the extension and propose an alternative deadline.
Administrative Civil Penalties
- The maximum administrative civil penalties for violations are increased to $200,000 for each day the violation continues, not to exceed $2,000,000. These penalties were originally $100,000 per day, not to exceed $1,000,000.
- PHMSA will no longer consider the ability of an operator to pay a penalty when assessing penalties.
- PHMSA stated that it does not negotiate civil penalties and intentionally did not include civil penalties in the regulations for consent orders.
Corrective Action Order Expedited Review Procedure
- The Associate Administrator may issue a Corrective Action Order (CAO) without notice and hearing if the failure to do so would result in the likelihood of serious harm to life, property or the environment.
- An owner or operator must notify PHMSA of a request for expedited review of a Corrective Action Order issued without notice within 10 days of receipt of the CAO.
- The expedited review hearing should be held within 15 days of receipt of the request for hearing.
- The Presiding Official should submit the recommendation of decision on expedited review within five days of the hearing.
- The Associate Administrator will terminate the CAO when Associate Administrator determines that the facility is no longer hazardous to life, property or the environment. PHMSA may still issue a NOPV after the termination of the CAO.
- PHMSA withdrew its proposal to permit filings of petitions for reconsideration on CAOs
Notice of Probable Violation (NOPV)
- PHMSA can now issue an NOPV for probable violations of certain regulations of onshore facility response plan requirements under the Federal Water Pollution Control Act.
- An operator may request the violation report at any time following receipt of the NOPV, and PHMSA must provide the report within five business days.
- An operator may contest a NOPV in writing or with a hearing.
- The regulations are clarified to provide that operators may submit written response to warnings.
- However, PHMSA does not and will not make subsequent findings about the warning and will only note the response in the file.
Informal Hearing Procedures
- The informal hearing procedures apply to hearings requested for civil penalty assessments, compliance orders, orders directing amendment, safety orders and corrective action orders.
- PHMSA added definitions for case files for these enforcement matters and specifically provides what information is included in the case file. PHMSA made this change because of industry comments requesting that operators have sufficient time to review the evaluation and recommendation submitted by the Regional Director.
- The Presiding Official in an informal hearing may not be engaged in investigative or prosecuting functions.
- PHMSA has also prohibited ex parte (communications by one side without the presence of the other side) communications with the Presiding Official (or the attorney drafting the recommended decision). Parties may communicate ex parte only about scheduling or other procedural issues.
- PHMSA declined industry requests for a target deadline for a decision after a hearing. PHMSA states that it has internal processes to ensure timely decisions. If a “substantial delay” is expected, PHMSA must give notice of the expected decision date.
- PHMSA withdrew the proposal rule to make motions for reconsideration mandatory prior seeking judicial review.
Requests for Informal Guidance
- Any requests for informal guidance should be routed through Office of Pipeline Safety (OPS). Requests for informal guidance should no longer be sent to the Office of Chief Counsel (OCC).
- The regulations no longer provide that messages will receive a response by the next business day, since PHMSA was not always meeting this deadline.
For a copy of this Final Rule, contact Jessica Roger.