The Pipeline and Hazardous Materials Safety Administration (PHMSA) has recently issued some Region Recommendations in enforcement actions that have either added new material allegations or requested relief beyond that contained in the underlying matter. The Agency’s rules do not provide for Region Recommendations to be used in that manner. If PHMSA decides to add new allegations or seek additional relief in an enforcement action, the rules (and precedent) anticipate those modifications will be made through an amendment of the underlying enforcement documents. Amended enforcement documents, if material, allow a Respondent a new opportunity to request a Hearing. It is not clear why PHMSA has started issuing Region Recommendations in this manner, but if left unchallenged it may have the effect of circumventing additional or expanded Hearings.

Region Recommendations are intended to respond to information submitted by the Respondent and to recommend the terms of final action to either the Presiding Official (where there has been a Hearing) or to the Associate Administrator (when no Hearing has occurred but a respondent has issued additional information for Agency consideration). Region Recommendations are typically prepared only in contested matters, especially after a Hearing. Where a matter is not contested, then the enforcement documents as issued presumably state all relevant allegations and describe the relief requested, thus a Region Recommendation should be unnecessary.

Region Recommendations are part of the case file for any enforcement action in any event, and since 2013 Respondents have had a right to review such Recommendations. 49 C.F.R. Part 190.209(a); 78 Fed. Reg 58910 (Sept. 25, 2013) (Region Recommendations are not automatically copied to a Respondent, though; they must be requested). Region Recommendations are typically prepared by Region staff with review and approval by the Regional Director. The Region may consult with PHMSA Regional counsel to finalize the Recommendation. There is no required review or input from PHMSA counsel, however, who should be familiar with the procedural due process limitations under 49 C.F.R. Part 190 and the Administrative Procedure Act.

The Agency can amend a Notice of Probable Violation (NOPV) “at any time prior to issuance of a final order,” but if an amendment includes any new material allegations of fact, an increased penalty or a new or additional remedial action, then the Respondent has a new or renewed opportunity to request a Hearing. 49 C.F.R. Part 190.207(c). PHMSA regulations prohibit any increase of a civil penalty in a Final Order beyond what was requested in an original or amended NOPV. 49 C.F.R. Part 190.213(a)(2). While several of the recent Region Recommendations purport to address an original NOPV, they instead add new allegations and/or new demands for relief. In many cases, the issuance of Region Recommendations significantly lag in time from a Hearing or written response contesting a NOPV, or a Respondent’s post-hearing submission.

In light of this concerning trend, operators should keep in mind that they have a right to request a copy of a Region Recommendation in any enforcement action, but it must be requested (it is not automatically provided). Similarly, operators have a right to see the Pipeline Safety Violation Report (PSVR) in any NOPV enforcement action, but again, it must be requested. And while Respondents do not have an express right in PHMSA regulations to respond to Region Recommendations, the Presiding Official has the discretion to allow it under the Agency’s procedural guidance (and frequently does in practice). In theory, it should be easier to resolve such issues with the Agency before a Final Order issues with new or additional penalty or remedial actions included. In the event a Final Order includes new or additional relief beyond that requested in the original enforcement pleadings, or misconstrues evidentiary information, however, operators have a right to Petition for Reconsideration. 49 C.F.R. Part 190.335.

Photo of Catherine D. Little Catherine D. Little

Catherine Little has been advising oil and gas pipelines, terminals and LNG facilities on energy and environmental administrative law for over 25 years at all levels of federal, state and local government, with particular emphasis on regulatory compliance, litigation and enforcement defense and administrative adjudication under the Pipeline Safety Act, Natural Gas Act, Clean Water Act (including wetlands), Oil Pollution Act and National Environmental Policy Act. Her team has sought appellate review for enforcement matters with favorable results and works closely with industry and regulators alike to obtain favorable results for their clients. Catherine also regularly counsels clients with respect to pipeline construction and design issues, permitting, confidential investigations, spill and release reporting and response.

Photo of Annie M. Cook Annie M. Cook

Annie Cook’s practice focuses on administrative, environmental, and oil and gas transportation laws. Annie counsels clients on regulatory issues, compliance and litigation strategy, construction and siting, and permitting and enforcement defense relating to the Pipeline Safety Act, the Natural Gas Act, the Clean Water Act, the Oil Pollution Act, National Environment Policy Act, TCSA, and related state and local laws.  Her team also represents clients regarding related transportation security issues and in responding to inquiries and investigations from the Department of Transportation’s Office of Inspector General.. Annie’s clients include owners and operators of oil and natural gas pipeline and related storage, terminal, and LNG facilities as well as other energy industry stakeholders.

Photo of Robert E. Hogfoss Robert E. Hogfoss

Bob Hogfoss has been counseling clients on compliance issues, litigation and enforcement defense, administrative adjudication and environmental litigation for over 30 years. Bob’s practice focuses exclusively on energy, environmental and administrative law, with emphasis on Pipeline Safety Act, Clean Water Act, Oil Pollution Act, National Environment Policy Act, RCRA, CERCLA and TSCA issues. His clients include oil and natural gas pipelines, chemical manufacturers, and the pulp and paper industry. Bob and his team have a reputation for resolving not prolonging legal issues. He served as a law clerk to Hon. Diarmuid F. O’Scannlain of the US Court of Appeals, Ninth Circuit, from 1986-87.