PHMSA has issued a final rule making several significant changes to the Agency’s enforcement procedures. See attached Federal Register pre-publication release of PHMSA Final Rule (Sept. 24, 2013). While this rule purports to comply with various Congressional mandates set forth in the 2012 amendments to the Pipeline Safety Act, it effectively increases and establishes some new Agency enforcement tools. The rule makes numerous changes to PHMSA’s administrative procedures set forth under 49 C.F.R. Part 190, some of which formalize existing Agency practices while others supplement or revise current Agency enforcement authority.
The most notable changes include:
- referencing new or clarified investigation authority, including clarifications to the Agency’s subpoena power, allowing for the issuance of a “request for specific information” (RSI) at any time, requiring operators to make available all records and information pertaining to a pipeline incident, allowing penalties for any person who obstructs an investigation, including a new subpart on criminal enforcement and clarifying referrals for prosecution;
- signaling a move to more formal regulatory interpretations and guidance by eliminating the availability of informal guidance from the Office of Chief Counsel;
- authorizing Regional Directors to amend NOPVs at any time prior to issuance of a final order;
- clarifying that the Agency’s enforcement case file is available in all cases, not just NOPVs, upon request and allowing for the first time the Agency’s regional recommendation after Hearings to be provided to operators;
- declining to include the factual and analytical bases for civil penalties as part of the enforcement case file beyond identifying the civil penalty assessment factors listed and providing the Agency’s civil penalty calculation outline upon request;
- expanding violations that may be issued under an NOPV, including probable violations of Facility Response Plan requirements under the Clean Water Act and probable violations of a Special Permit; and
- clarifying that it is not necessary to file a Petition for Reconsideration to establish final agency action before judicial review is available.
Lastly, while PHMSA declined to adopt a formal regulation regarding offers of settlement and consent orders with respect to civil penalty cases, the Agency indicated that it is considering whether to develop guidance on its settlement process. The Final Rule becomes effective on October 25, 2013. In the interim, we recommend that operators review these changes closely and discuss them with counsel as appropriate.