In an interesting reversal from 2017, the 2018 statistics for the Pipeline & Hazardous Materials Safety Administration (PHMSA) showed increased use of higher severity enforcement mechanisms and reduced use of lower severity mechanisms.

While 2017 enforcement actions seemed designed to prevent lesser violations from developing into larger problems, in 2018 PHMSA seemed to focus on enforcement actions that required operators to pay a penalty and/or correct a violation. The agency issued more Notices of Proposed Safety Order in 2018 than in any year since 2011, and more Notices of Probable Violation than Warning Letters. This has only occurred two other times in the last 12 years.

Overall, PHMSA issued 13 percent fewer enforcement actions in 2018 than in 2017. Interestingly, though, incident reports decreased by only 2 percent. An incident report may or may not result in an enforcement action, and enforcement actions can arise from situations other than incident reports, such as inspections, complaints, or self-reporting.

So far in 2019, PHMSA has not issued any of the more severe enforcement actions, suggesting a possible return to the trends observed in 2016 and 2017. Time will tell whether PHMSA continues to pursue higher severity enforcement actions as it did in 2018, or if PHMSA resumes its emphasis on less severe actions.

If you’re interested to learn more, our Pipeline Practice Team has put together a legal alert taking a deeper dive into the 2018 PHMSA enforcement data.