Pipeline Safety Stakeholder Communications

Effectiveness

Operators have a complete understanding of PHMSA requirements and expectations, and, upon identification of a program deficiency – either by themselves or by PHMSA – work quickly to modify their program.
Operators strive to avoid non-compliances in the first place, with priority on those compliance issues with the highest potential risk. Serious inadequacies or non-compliances are prevented.
Operators learn from spection findings, enforcement actions, and incidents, and take corrective actions system-wide in order to address latent issues and to prevent future issues. Identified non-compliances are quickly and satisfactorily rectified.
PHMSA has an accurate assessment of operator and industry compliance status, efforts, and apparent capabilities, including their timely mitigation of critical safety concerns.
Stakeholders are confident that PHMSA’s oversight processes result in a high degree of full compliance by the regulated community.

Efficiency

PHMSA resources are judiciously utilized, and are directed towards those activities and issues with the highest potential risk.

Consistency

Enforcement and inspection processes repeatedly lead to the same results, given the same or similar circumstances.

Enforcement Mechanisms

The Enforcement Program has a number of different mechanisms to assure operator compliance and safe operation. (See Title 49, Part 190, Subpart B “Enforcement” in the Code of Federal Regulations.) A brief synopsis of these mechanisms is provided below. This synopsis does not substitute for the regulations themselves. Enforcement mechanisms that may be initiated by PHMSA are discussed in more detail below, and include:

Corrective Action Order

If PHMSA determines that a particular pipeline facility represents a hazard to life, property, or the environment, PHMSA can issue a Corrective Action Order (CAO). A CAO usually addresses urgent situations arising out of an accident, spill, or other significant, immediate, or imminent safety or environmental concern. In a CAO case, PHMSA identifies actions that must be taken by the operator to assure safe operation. The specific actions depend on the individual pipeline facility and the situation that has created the hazardous condition. In determining a pipeline facility to be hazardous, PHMSA considers the following:

• characteristics of the pipe and other equipment, including its age, physical properties, and manufacturing and construction information;
• commodity(ies) being transported, and the operating pressures involved;
• characteristics of the area around the pipeline (e.g., population, environmental resources, geologic conditions);
• any recommendations from the National Transportation Safety Board;
• any recommendations from the National Transportation Safety Board; and
• any other factors deemed important by the PHMSA Associate Administrator.

A CAO contains: a finding that the pipeline facility is or would be hazardous to life, property, or the environment; relevant facts supporting the finding; the legal basis for the CAO; a description of specific corrective actions the operator must take; the date by which corrective actions must be completed; and the opportunity for an operator to request a hearing. In its response options, the CAO requires the operator to respond in 10 days, and includes procedures for requesting a hearing.

If PHMSA believes the conditions for a CAO case exist, but the CAO does not need to be issued expeditiously to prevent likely serious harm to life, property or the environment, the operator will be given reasonable notice and an opportunity for a hearing before an actual Corrective Action Order is issued. In these situations, a Notice of Proposed Corrective Action Order (NOPCAO) is issued to the operator.

A CAO is often issued following pipeline accidents. Depending on the circumstances, PHMSA may direct the operator to reduce operating pressure or shut down the pipeline facility until safe operation can be assured. PHMSA may also direct the operator to test the pipeline facility to identify potentially injurious problems, as well as to take other preventive measures to preclude future failures. Pipeline integrity tests are often required by a CAO and may include in-line inspection (smart pigging), hydrostatic pressure testing, or additional testing.

PHMSA conducts rigorous inspections to assure that conditions in the CAO are met before allowing operators to return to normal operation.

Notice of Proposed Safety Order

If PHMSA finds that a particular pipeline facility has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment, PHMSA may issue a Notice of Proposed Safety Order (NOPSO), which may require the operator of the facility to take actions to address the identified pipeline integrity risk condition(s). The NOPSO proposes specific measures the operator must take to address the identified risk(s). These can include inspection, testing, repair, or other appropriate actions to remedy the identified risk condition(s).

A NOPSO contains: a notification that the pipeline facility has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment; relevant facts supporting the finding; the legal basis for the NOPSO; a description of specific corrective actions the operator must take; the date by which corrective actions must be completed; and, where appropriate, the duration of the NOPSO.

The NOPSO will also provide the operator with its response options, including procedures for requesting informal consultation and a hearing. An operator receiving a notice will have 30 days to respond.

Notice of Amendment

If during an inspection, or through other means, PHMSA learns that the operator’s plans or procedures required by the federal pipeline safety regulations are inadequate, PHMSA can issue the operator a Notice of Amendment (NOA). An NOA specifies the alleged inadequacies and the proposed revisions to operator’s plans or procedures. The notice allows the operator 30 days following receipt of the notice to submit written comments, revised procedures, or a request for a hearing.

Notice of Probable Violation

If information obtained during an inspection or some other source indicates that a violation of pipeline safety regulations has occurred, PHMSA may begin an enforcement proceeding by issuing a Notice of Probable Violation (NOPV) to the operator. The NOPV states the specific provisions of the laws, regulations, or orders which the operator is alleged to have violated and states the evidence upon which the allegations are based. The NOPV also informs the operator of its response options, including the right to a hearing.

The NOPV may propose that a civil penalty and/or a Compliance Order be issued to the operator, depending on the specific circumstances. If a civil penalty is proposed, the NOPV will include the amount of the proposed penalty as well as the maximum amount for which the operator is liable under the law. The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 increased the civil penalty authority of PHMSA to a maximum of $200,000 per violation per day, up to a maximum of $2,000,000 for a related series of violations.

If a Compliance Order is proposed, the NOPV will specify the actions the operator must take to correct the violation. These actions depend on the violation, but could involve: modifying procedures, changing operation and maintenance practices, conducting pipeline surveillance, or repairing/replacing inoperable or ineffective equipment.

In some circumstances, PHMSA may elect to issue a written warning when it believes a violation may exist. A warning notifies the operator of the probable violation and requires that the situation be corrected, or more stringent enforcement action may be taken. A warning can be included with other probable violations contained within an NOPV, or they can be issued in a separate letter which contains only warnings (referred to as a Warning Letter). A warning does not require a response from the operator.

The types of enforcement action initiated by PHMSA depend on the safety and regulatory significance of the hazards, violations, or procedural inadequacies encountered.

The Adjudication Process

PHMSA initiates enforcement actions through the mechanisms listed above, which notify operators of identified hazardous or integrity risk conditions, alleged violations, or alleged procedural inadequacies. These proposed enforcement actions are finalized through PHMSA’s issuance of a Final Order. In most cases, operators have the opportunity to: provide additional information for consideration, contest in writing, or request a hearing to contest PHMSA’s notice of proposed enforcement actions prior to PHMSA’s issuance of a Final Order. Detailed information regarding enforcement response options for pipeline operators in enforcement proceedings can be found by clicking here.

If PHMSA’s proposed enforcement action is not contested and the facts are as alleged in the notice, the proposed enforcement action is issued in a Final Order.

Consent Order

At any time prior to PHMSA’s issuance of a Final Order for a Corrective Action Order, a Safety Order, or a Compliance Order within an NOPV, PHMSA and the operator may agree to resolve the case by execution of a Consent Order. Upon execution, the Consent Order is considered a Final Order.

Hearings

In the case of CAOs, operators have 10 days to request a hearing. For NOAs and NOPVs, operators have 30 days to request a hearing. Hearings are informal and are conducted without strict adherence to the federal rules of evidence. PHMSA is typically represented by the Region Director and one or more inspectors who were involved during the inspection or in preparing the case.

While the operator and PHMSA are each allowed to present their case and respond to information the other may present, there is no formal cross examination during the hearing. Detailed written records of hearings are not prepared. The operator may submit any relevant information and call any witnesses it believes will support its position. It may offer additional facts, information, explanation, documents, testimony, or other items relevant to the issues under consideration. The operator may also examine evidence assembled by PHMSA in determining the alleged violation. The presiding official may also allow PHMSA to respond to or rebut information presented by the operator. Each side is permitted to argue its case on the issues under consideration. The operator may also request an opportunity to submit additional information after the hearing to further support its case or address issues raised at the hearing. The presiding official provides a reasonable time period for submittal of this information.

As mentioned above, and depending on the specific circumstances, an operator can also be provided an opportunity for a hearing when a CAO is issued. The hearing process is similar to that described above, except that the time frames allowed for response are shorter. In these situations, an operator is allowed 10 days to either request a hearing or waive its opportunity for a hearing.

Final Orders

Once an operator has exercised its response options, which may or may not include a hearing, a Final Order is issued as a final step in the enforcement process to direct the operator to take specific corrective actions and/or to pay a civil penalty. If the operator waives its right to a hearing, the Office of Chief Counsel within PHMSA makes a recommendation for the appropriate administrative action under a Final Order. This can be either a Compliance Order, a civil penalty, or both in the case of an NOPV; or, in certain cases for an NOA, an Order Directing Amendment (ODA – see also below). If a hearing has been conducted, the presiding official reviews the information provided at the hearing, as well as any supplemental information supplied by the operator subsequent to the hearing, and makes a recommendation for the applicable final administrative action.

In the case of an NOPV, the resulting Final Order includes a statement of findings and determination as to whether each alleged violation has been proved. The Final Order directs the operator to take the actions required by PHMSA, and identifies the time frame in which they must be completed. The Final Order also directs the operator to pay any civil penalties which are assessed. In determining the amount of penalty to be assessed, PHMSA considers the following factors:

• Nature, circumstances, and gravity of the violation, including adverse impact on the environment;
• Operator’s culpability;
• Operator’s history of prior offenses;
• Operator’s good faith effort in attempting to achieve compliance; and
• Effect on the operator’s ability to continue in business.

In addition, PHMSA may also consider:

• Economic benefit if readily ascertainable; and
• Other matters as justice may require.

The Final Order may also direct the operator to take certain actions, and identifies the time frame in which they must be completed. PHMSA posts all Final Orders on its web site. After the operator has paid the civil penalty and the PHMSA Region Director has confirmed that any actions required in the Final Order have been satisfactorily completed, the case is closed.

Order Directing Amendment

In an NOA case, after an operator has had the opportunity to submit amended plans and procedures, respond or contest allegations, either in writing or by a hearing, where PHMSA deemed the operator’s plans and procedures unsatisfactory, a specific type of Final Order called an Order Directing Amendment may be issued. An ODA is used as the final adjudication and contains findings in an NOA case either dismissing the item or requiring the operator to make the specified changes in their plans and procedures. If all findings are dismissed, then the NOA is withdrawn in its entirety.

PHMSA’s Final Orders including Orders Directing Amendment, are available online.

Petition for Reconsideration

Although the vast majority of enforcement cases are concluded as described above, the regulations provide an opportunity for an operator to petition PHMSA to reconsider the findings specified in the Final Order. Such a petition must be received no later than 20 days after the Final Order is served. The petition must contain a brief statement of the complaint and an explanation as to why the actions specified in the Final Order should be changed. An operator may present additional information to support its petition, but must explain why that information was not presented during or after the hearing. Repetitious information or arguments already considered are not a legitimate reason to petition for reconsideration, and such petitions are not considered. By filing a petition for reconsideration, the civil penalty is stayed until a final decision on the petition is made. However, the operator still must take any actions specified in the Final Order, unless PHMSA provides otherwise.

PHMSA may grant or deny, in whole or in part, any Petition for Reconsideration without further proceedings. PHMSA may also request additional information to assist in making a determination on the need to revise the conditions or civil penalty specified in the Final Order. PHMSA renders a decision within 20 days of receiving the petition unless it is impractical to do so.

Criminal Penalties

The United States Code and the pipeline safety regulations also specify conditions under which criminal penalties may be pursued. These include the following:

• Any person who willfully and knowingly violates a provision of the pipeline safety regulations will, upon conviction, be subject to a fine, imprisonment for not more than five years, or both, for each offense.
• Any person who willfully and knowingly injures or destroys, or attempts to injure or destroy, any interstate transmission facility, any interstate pipeline facility, or any intrastate pipeline facility will, upon conviction, be subject to a fine, imprisonment for a term not to exceed 20 years, or both, for each offense.
• Any person who willfully and knowingly defaces, damages, removes, or destroys any pipeline sign, right-of-way marker, or marine buoy will, upon conviction, be subject to a fine, imprisonment for a term not to exceed 1 year, or both, for each offense.
• Any person who willfully and knowingly engages in excavation activity without first using an available one-call notification system to establish the location of underground facilities in the excavation area; or without considering location information or markings established by a pipeline facility operator; and:
  1. Subsequently damages a pipeline facility resulting in death, serious bodily harm, or property damage exceeding $50,000;
  2. Subsequently damages a pipeline facility and knows or has reason to know of the damage but fails to promptly report the damage to the operator and to the appropriate authorities; or
  3. Subsequently damages a hazardous liquid pipeline facility that results in the release of more than 50 barrels of product;

  will, upon conviction, be subject to a fine, imprisonment for a term not to exceed 5 years, or both, for each offense.

To find out if a gas transmission pipeline or hazardous liquid trunkline is located near you, visit the National Pipeline Mapping System and search by your county or zip code.