This post was co-authored by partner Paul Drucker, and Summer Associate, Zachary Miller.
A review of the Pipeline & Hazardous Materials Safety Administration (PHMSA) enforcement statistics continues to emphasize enforcing “lesser” safety violations committed by hazardous liquid pipeline operators. This trend may be part of an enforcement strategy to prevent more sizable and dangerous violations down the road. PHMSA initiated 229 total enforcement actions in 2017 against pipeline owners and operators, a sharp uptick from the 164 enforcement actions initiated in 2016. Breaking down these numbers, this 40 percent increase in overall enforcement actions included a 77 percent increase in Notices of Amendment; and an 89 percent increase in Warning Letter filings from 2016 to 2017. The enforcement actions in 2017 focused on: inadequacies in maintenance, inspection, and record keeping; and a lack of adequate pipeline safety procedures in place.
So far in January to July 2018, PHMSA has initiated 95 new enforcement actions (for a projected total of approximately 196 in 2018) against pipeline owners and operators. The projected total enforcement actions for 2018 represent a 14 percent decrease from enforcement actions initiated in 2017. However, the initiated enforcement actions in 2018 show PHMSA’s emphasis on lesser violations by hazardous liquid pipeline operators is here to stay.
Over 50 percent of the enforcement actions initiated in 2018 have been directed at hazardous liquid pipeline operators. Notably, PHMSA is projected to increase its use of Notices of Probable Violation in 2018 by 46 percent from 2017. The enforcement actions we have seen in this regard have targeted inadequacies in maintenance, training deficiencies, failure to adhere to procedures, and a lack of adequate procedures in place. PHMSA continues to prioritize enforcement actions directed at hazardous liquid pipeline operators violating lesser safety regulations.
While the PHMSA can refer its most egregious cases of violations for criminal prosecution or judicial enforcement, the downward trend in PHMSA’s use of its most serious enforcement tool – the Corrective Action Order – could suggest that increased enforcement of lesser violations may be reducing the potential for more sizable and dangerous violations such as spills or violations that present immediate safety or environmental concerns. If the decrease in Corrective Action Orders initiated in 2017 and 2018 can be tied to fewer dangerous violations occurring, PHMSA may not be changing its enforcement strategy anytime soon. Our Pipeline Practice Team has put together a deeper dive into this data. Read the full alert to learn more about:
- PHMSA enforcement trends from 2016 to 2017
- How enforcement actions initiated by PHMSA in 2018 compare to enforcement trends over the past three years
- The increased filing of Notices of Probable Violation in 2018 against hazardous liquid pipeline operators