[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19799-19834]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7550]
[[Page 19799]]
Vol. 77
Monday,
No. 63
April 2, 2012
Part III
Department of Transportation
-----------------------------------------------------------------------
Pipeline and Hazardous Materials Safety Administration
-----------------------------------------------------------------------
49 CFR Parts 196 and 198
Pipeline Safety: Pipeline Damage Prevention Programs; Proposed Rule
Federal Register / Vol. 77 , No. 63 / Monday, April 2, 2012 /
Proposed Rules
[[Page 19800]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 196 and 198
[Docket No. PHMSA-2009-0192]
RIN 2137-AE43
Pipeline Safety: Pipeline Damage Prevention Programs
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: This Notice of Proposed Rulemaking (NPRM) seeks to revise the
Pipeline Safety Regulations to: Establish criteria and procedures for
determining the adequacy of state pipeline excavation damage prevention
law enforcement programs; establish an administrative process for
making adequacy determinations; establish the Federal requirements
PHMSA will enforce in states with inadequate excavation damage
prevention law enforcement programs; and establish the adjudication
process for administrative enforcement proceedings against excavators
where Federal authority is exercised. Pursuant to the Pipeline
Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006,
establishment of review criteria for state excavation damage prevention
law enforcement programs is a prerequisite should PHMSA find it
necessary to conduct an enforcement proceeding against an excavator in
the absence of an adequate enforcement program in the state where the
violation occurs. The development of these criteria and the subsequent
determination of the adequacy of state excavation damage prevention law
enforcement programs is intended to encourage states to develop
effective excavation damage prevention law enforcement programs to
protect the public from the risk of pipeline ruptures caused by
excavation damage, and allow for Federal administrative enforcement
action in states with inadequate enforcement programs.
DATES: Persons interested in submitting written comments on this NPRM
must do so by June 1, 2012.
ADDRESSES: Comments should reference Docket Number PHMSA-2009-0192 and
may be submitted in the following ways:
Web Site: Comments should be filed at the Federal
eRulemaking Portal, http://www.regulations.gov. Follow the online
instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Operations Facility (M-30), U.S. Department
of Transportation, West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
Hand Delivery: Docket Operations Facility, U.S. Department
of Transportation, West Building, Room W12-140, 1200 New Jersey Avenue
SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Instructions: Identify the docket number, PHMSA-2009-0192, at the
beginning of your comments. If you mail your comments, we request that
you send two copies. To receive confirmation that PHMSA received your
comments, include a self-addressed stamped postcard.
Note: Comments are posted without changes or edits to http://www.regulations.gov, including any personal information provided.
There is a privacy statement published on http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Sam Hall, Program Manager, PHMSA by
email at sam.hall@dot.gov or by telephone at (804) 556-4678 or Larry
White, Attorney Advisor, PHMSA by email at lawrence.white@dot.gov or by
telephone at (202) 366-9093.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This NPRM proposes to amend the Federal Pipeline Safety Regulations
to: (1) Establish criteria and procedures PHMSA will use to determine
the adequacy of state pipeline excavation damage prevention law
enforcement programs. Such determination is a prerequisite should PHMSA
find it necessary to conduct an administrative enforcement proceeding
against an excavator for violation of the Federal requirements proposed
in this NPRM in the absence of adequate state enforcement of state
excavation damage prevention laws; (2) establish an administrative
process for states to contest notices of inadequacy from PHMSA should
they elect to do so; (3) establish the Federal requirements PHMSA will
enforce in states with inadequate excavation damage prevention law
enforcement programs; and (4) establish the adjudication process for
administrative enforcement proceedings against excavators where Federal
authority is exercised. In the absence of regulations specifying the
criteria that PHMSA will use to evaluate a state's excavation damage
prevention law enforcement program, PHMSA would take no enforcement
action.
Executive Orders 12866 and 13563 require agencies to regulate in
the ``most cost-effective manner,'' to make a ``reasoned determination
that the benefits of the intended regulation justify its costs,'' and
to develop regulations that ``impose the least burden on society.'' The
expected benefit of this rulemaking action is an increased deterrent to
violations of one-call requirements (though requirements vary by state,
a one-call system allows excavators to call one number in a given state
in order to ascertain the presence of underground utilities)
requirements and the attendant reduction in pipeline incidents and
accidents caused by excavation damage. Based on incident reports
submitted to PHMSA, failure to use an available one-call system is a
known cause of pipeline accidents. PHMSA analyzed the costs and
benefits of the proposed rule. To determine the benefits, PHMSA was
able to obtain data for three states over the course of the
establishment of their excavation damage prevention programs
(additional information about these states can be found in the
regulatory analysis that is in the public docket). Each of the three
states had a decrease of at least 63 percent in the number of
excavation damage incidents occurring after they initiated their
enforcement programs. While many factors can contribute to the decrease
in state excavation damage incidents, PHMSA found these states to be a
helpful starting point on which to estimate the benefits of this
rulemaking. PHMSA utilized three separate effectiveness rates to
conservatively evaluate the benefits of this rulemaking. The rates are
based on the reduction of incidents of the three states studied and
more conservative effective rates because state pipeline programs vary
widely, which may lead to a lower effective rate than the three states
analyzed. In addition, we compared the overall costs of this rule to
the average costs associated with a single excavation damage incident.
PHMSA expects the total cost of this rule to be $1.2 million while the
benefits are $23 million.\1\
---------------------------------------------------------------------------
\1\ These numbers are discounted over 10 years at 7%.
---------------------------------------------------------------------------
This rulemaking has three separate potential cost impacts. The
costs to excavators to comply with the Federal excavation standard, the
cost to states to have their enforcement programs reviewed, to appeal a
determination of ineffectiveness and to ask for reconsideration, and
the cost impact on the Federal government to enforce the Federal
excavation standard. With
[[Page 19801]]
regard to the potential cost impacts on excavators, PHMSA believes that
excavators will not incur any additional costs because the Federal
excavation standard, which is also a self-executing standard, mirrors
the excavation standard in each state and does not impose any
additional costs on excavators. The cost impacts on states are those
costs associated with having their enforcement programs reviewed
(estimated to be $20,000 per year), to appeal a determination of
ineffectiveness (estimated to be a one time cost of $125,000) and to
ask for reconsideration (estimated to be a one-time cost of $350,000).
Therefore, the total estimated first year cost impacts on states are
(($20,000 (annually) + (14 x $25,000) + (5 x $25,000)) = $495,000. The
annual cost impacts on states in subsequent years are estimated to be
$20,000. The annual cost impacts on the Federal government are
estimated to be approximately $80,000. Therefore, the total first year
cost of this rulemaking is estimated to be $547,688 ($470,000 +
$77,688). The following years the costs are estimated to be
approximately $100,000 per year. The total cost over ten years, with a
3% discount rate is $1,331,876 and at a 7% discount rate is $1,182,602.
PHMSA is specifically asking for comments on whether it has adequately
captured the scope and size of the costs of this rulemaking. The
average annual benefits range from $10,939,602 to $3,445,975.
Evaluating just the lower range of benefits over ten years results in a
total benefit of over $29,000,000, with a 3% discount rate, and over
$23,000,000, with a 7% discount rate. In addition, over the past 22
years, the average reportable incident caused $272,200 in property
damage alone. Therefore, if this proposed regulatory action prevents
just one average reportable incident per year, this rulemaking would be
cost beneficial. Interested readers should refer to the Regulatory
Evaluation that is posted in the docket for additional information.
II. Objective
Based on incident data PHMSA has received from pipeline operators,
excavation damage is a leading cause of natural gas and hazardous
liquid pipeline failure incidents.\2\ Better, more effective
enforcement of state excavation damage prevention laws is a key to
reducing pipeline excavation damage incidents. Though all states have a
damage prevention program, not all states adequately enforce their
state damage prevention laws. Pursuant to the Pipeline Inspection,
Protection, Enforcement and Safety Act of 2006 (PIPES Act), PHMSA is
proposing criteria and procedures for determining whether a state's
enforcement of its excavation damage prevention laws is adequate. As
mandated by the PIPES Act, such determination is a prerequisite should
PHMSA find it necessary to conduct an administrative enforcement
proceeding against an excavator for violating Federal excavation
standards. This NPRM also proposes to establish the administrative
process for states to contest notices of inadequacy PHMSA issues, the
Federal requirements PHMSA will enforce in states with inadequate
enforcement programs, and the adjudication process for administrative
enforcement proceedings against excavators where Federal authority is
exercised.
---------------------------------------------------------------------------
\2\ Data from the U.S. Department of Transportation, PHMSA
Office of Pipeline Safety, Incident and Accident Reports of Gas
Distribution, Gas Transmission & Gathering and Hazardous Liquid
Pipeline Systems. Pipeline incident and accident summaries are
available on PHMSA Stakeholders Communication Web site at: http://primis.phmsa.dot.gov/comm/Index.htm?nocache=3320.
---------------------------------------------------------------------------
III. Background
A. Pipeline Incidents Caused by Excavation Damage
Excavation damage is a leading cause of natural gas and hazardous
liquid pipeline failure incidents. For the period from 1988 to 2010,
1,613 incidents, 185 fatalities, 697 injuries, and $438,785,552 in
estimated property damages were reported as being caused by excavation
damage on all PHMSA regulated pipeline systems in the United States,
including onshore and offshore hazardous liquid, gas transmission, and
gas distribution lines, except gathering lines.\3\
---------------------------------------------------------------------------
\3\ Data from the U.S. Department of Transportation, PHMSA
Office of Pipeline Safety, Incident and Accident Reports of Gas
Distribution, Gas Transmission & Gathering and Hazardous Liquid
Pipeline Systems. Pipeline incident and accident summaries are
available on PHMSA Stakeholders Communication Web site at: http://primis.phmsa.dot.gov/comm/Index.htm?nocache=3320.
---------------------------------------------------------------------------
While excavation damage is the cause in a significant portion of
all pipeline failure incidents, it is cited as the cause in a
relatively higher portion of natural gas distribution incidents. To
look at this issue, PHMSA initiated and sponsored in 2005 an
investigation of the risks and threats to gas distribution systems.
This investigation was conducted through the efforts of four joint
work/study groups, each of which included representatives of the
stakeholder public, the gas distribution pipeline industry, state
pipeline safety representatives, and PHMSA. The areas of their
investigations included excavation damage prevention. The Integrity
Management for Gas Distribution, Report of Phase I Investigations (DIMP
Report) was issued in December 2005.\4\ As noted in the DIMP Report,
the Excavation Damage Prevention work/study group reached four key
conclusions.
---------------------------------------------------------------------------
\4\ This report is available in the rulemaking docket.
---------------------------------------------------------------------------
Excavation damage poses by far the single greatest threat
to distribution system safety, reliability and integrity; therefore,
excavation damage prevention presents the most significant opportunity
for distribution pipeline safety improvements.
States with comprehensive damage prevention programs that
include effective enforcement have a substantially lower probability of
excavation damage to pipeline facilities than states that do not. The
lower probability of excavation damage translates to a substantially
lower risk of serious incidents and consequences resulting from
excavation damage to pipelines.
A comprehensive damage prevention program requires nine
important elements be present and functional for the program to be
effective. All stakeholders must participate in the excavation damage
prevention process. The elements are:
1. Enhanced communication between operators and excavators.
2. Fostering support and partnership of all stakeholders in all
phases (enforcement, system improvement, etc.) of the program.
3. Operator's use of performance measures for persons performing
locating of pipelines and pipeline construction.
4. Partnership in employee training.
5. Partnership in public education.
6. Enforcement agencies' role as partner and facilitator to help
resolve issues.
7. Fair and consistent enforcement of the law.
8. Use of technology to improve all parts of the process.
9. Analysis of data to continually evaluate/improve program
effectiveness.
Federal legislation is needed to support the development
and implementation of damage prevention programs that include effective
enforcement as a part of the state's pipeline safety program. This is
consistent with the objectives of the state pipeline safety programs,
which are to ensure the safety of the public by addressing threats to
the distribution
[[Page 19802]]
infrastructure. The legislation will not be effective unless it
includes provisions for ongoing funding such as federal grants to
support these efforts. This funding is intended to be in addition to,
and independent of, existing federal funding of state pipeline safety
programs.
Another recent report (Mechanical Damage Report) prepared on behalf
of PHMSA \5\ concluded that excavation damage continues to be a leading
cause of serious pipeline failures and that better one-call enforcement
is a key gap in damage prevention. In that regard, the Mechanical
Damage Report noted that most jurisdictions have established laws to
enforce one-call notification compliance; however, the report noted
that many pipeline operators consider lack of enforcement to be
degrading the effectiveness of one-call programs. The report cited that
in Massachusetts, 3,000 violation notices were issued from 1986 to the
mid-1990s, contributing to a decrease of third-party damage incidents
on all types of facilities from 1,138 in 1986 to 421 in 1993. The
report also cited findings from another study that enforcement of the
one-call notification requirement was the most influential factor in
reducing the probability of pipeline strikes and that the number of
pipeline strikes is proportionate to the degree of enforcement.
---------------------------------------------------------------------------
\5\ Mechanical Damage Final Report, Michael Baker Jr., Inc.,
April 2009.
---------------------------------------------------------------------------
With respect to the effectiveness of current regulations, the
Mechanical Damage Report stated that an estimated two-thirds of
pipeline excavation damage is caused by third parties and found that
the problem is compounded if the pipeline damage is not promptly
reported to the pipeline operator so that corrective action can be
taken. It also noted ``when the oil pipeline industry developed the
survey for its voluntary spill reporting system--known as the Pipeline
Performance Tracking System (PPTS)--it recognized that damage to
pipelines, including that resulting from excavation, digging, and other
impacts, is also precipitated by operators (``first parties'') and
their contractors (``second parties'')''.
Finally, the report found that for some pipeline excavation damage
data that was evaluated, ``in more than 50 percent of the incidents,
one-call associations were not contacted first'' and that ``failure to
take responsible care, to respect the instructions of the pipeline
personnel, and to wait the proper time accounted for another 50 percent
of the incidents.''
B. State Damage Prevention Programs
There is considerable variability among the states in terms of
physical geography, population density, underground infrastructure,
excavation activity, and economic activity. For example, South Dakota
is a rural, agricultural state with a relatively low population
density. In contrast, New Jersey is more densely populated and is host
to a greater variety of land uses, denser underground infrastructure,
and different patterns of excavation activity. These differences
between states equate to differences in the risk of excavation damage
to underground infrastructure, including pipelines. Denser population
often means denser underground infrastructure; more rural and
agricultural states will have different underground infrastructure
densities and excavation patterns than more urbanized states.
There is no single, comprehensive national damage prevention law.
On the contrary, all 50 states in the United States have a law designed
to prevent excavation damage to underground utilities. However, these
state laws vary considerably and no two state laws are identical.
Therefore, excavation damage prevention stakeholders in each state are
subject to different legal and regulatory requirements. Variances in
state laws include excavation notice requirements, damage reporting
requirements, exemptions from the requirements of the laws for
excavators and/or utility operators, provisions for enforcement of the
laws, and many others. PHMSA has developed a reference for
understanding the variability in these state laws at http://primis.phmsa.dot.gov/comm/DamagePreventionSummary.htm.
C. PHMSA Damage Prevention Efforts
PHMSA has made extensive efforts over many years to improve
excavation damage prevention as it relates to pipeline safety. These
efforts have included outreach, grants, and funding of cooperative
agreements with a wide spectrum of excavation damage prevention
stakeholders including:
Public and community organizations.
Excavators and property developers.
Emergency responders.
Local, state and Federal government agencies.
Pipeline and other underground facility operators.
Industry trade associations.
Consensus standards organizations.
Environmental organizations.
These initiatives are described in detail in the ANPRM on this
subject that PHMSA published in the Federal Register on October 29,
2009 (74 FR 55797). The ANPRM can be viewed at http://www.regulations.gov, Docket ID PHMSA-2009-0192. These initiatives
appear to have contributed to an overall decline in the rate of
excavation damages to pipelines and other underground utilities, but
PHMSA is unaware of any studies of the direct effect of these
initiatives on the national excavation damage rate to pipelines. PHMSA
invites comments regarding any studies that might have evaluated the
effectiveness of these initiatives.
D. The Pipeline Inspection, Protection, Enforcement, and Safety Act of
2006
On December 29, 2006, the PHMSA's pipeline safety program was
reauthorized by enactment of the PIPES Act. The PIPES Act provides for
enhanced safety and environmental protection in pipeline
transportation, enhanced reliability in the transportation of the
Nation's energy products by pipeline, and other purposes. Major
portions of the PIPES Act were focused on damage prevention including
additional resources and clear program guidelines as well as additional
enforcement authorities to encourage states in developing effective
excavation damage prevention programs. The PIPES Act identifies nine
elements that effective damage prevention programs should include.
These are, essentially, identical to those nine elements noted in the
DIMP Report discussed in the previous subsection.
The PIPES Act also provided PHMSA with limited authority to conduct
administrative civil enforcement proceedings against excavators who
damage pipelines in a state that has failed to adequately enforce its
excavation damage prevention laws. Specifically, Section 2 of the PIPES
Act provides that the Secretary of Transportation may take civil
enforcement action against excavators who:
1. Fail to use the one-call notification system in a state that has
adopted a one-call notification system before engaging in demolition,
excavation, tunneling, or construction activity to establish the
location of underground facilities in the demolition, excavation,
tunneling, or construction area;
2. Disregard location information or markings established by a
pipeline facility operator while engaging in demolition, excavation,
tunneling, or construction activity; and
3. Fail to report excavation damage to a pipeline facility to the
owner or operator of the facility promptly, and report to other
appropriate authorities
[[Page 19803]]
by calling the 911 emergency telephone number if the damage results in
the escape of any flammable, toxic, or corrosive gas or liquid that may
endanger life or cause serious bodily harm or damage to property.
The PIPES Act limited the Secretary's ability to take civil
enforcement action against these excavators, unless the Secretary has
determined that the state's enforcement of its damage prevention laws
is inadequate to protect safety.
The following is the applicable citation from the PIPES Act:
SEC. 2. PIPELINE SAFETY AND DAMAGE PREVENTION.
(a) ONE CALL CIVIL ENFORCEMENT.--
(1) PROHIBITIONS.--Section 60114 is amended by adding at the end
the following:
(d) PROHIBITION APPLICABLE TO EXCAVATORS.--A person who engages
in demolition, excavation, tunneling, or construction--
(1) May not engage in a demolition, excavation, tunneling, or
construction activity in a state that has adopted a one-call
notification system without first using that system to establish the
location of underground facilities in the demolition, excavation,
tunneling, or construction area;
(2) May not engage in such demolition, excavation, tunneling, or
construction activity in disregard of location information or
markings established by a pipeline facility operator pursuant to
subsection (b); and
(3) Who causes damage to a pipeline facility that may endanger
life or cause serious bodily harm or damage to property--
(A) May not fail to promptly report the damage to the owner or
operator of the facility; and
(B) If the damage results in the escape of any flammable, toxic,
or corrosive gas or liquid, may not fail to promptly report to other
appropriate authorities by calling the 911 emergency telephone
number.
(e) PROHIBITION APPLICABLE TO UNDERGROUND PIPELINE FACILITY
OWNERS AND OPERATORS.--Any owner or operator of a pipeline facility
who fails to respond to a location request in order to prevent
damage to the pipeline facility or who fails to take reasonable
steps, in response to such a request, to ensure accurate marking of
the location of the pipeline facility in order to prevent damage to
the pipeline facility shall be subject to a civil action under
section 60120 or assessment of a civil penalty under section 60122.
(f) LIMITATION.--The Secretary may not conduct an enforcement
proceeding under subsection (d) for a violation within the
boundaries of a state that has the authority to impose penalties
described in section 60134(b)(7) against persons who violate that
state's damage prevention laws, unless the Secretary has determined
that the state's enforcement is inadequate to protect safety,
consistent with this chapter, and until the Secretary issues,
through a rulemaking proceeding, the procedures for determining
inadequate state enforcement of penalties.
E. Advance Notice of Proposed Rulemaking
On October 29, 2009, PHMSA published an Advance Notice of Proposed
Rulemaking (ANPRM) to seek feedback and comments regarding the
development of criteria and procedures for determining whether states
are adequately enforcing their excavation damage prevention laws, and
for conducting Federal administrative enforcement, if necessary. The
ANPRM also outlined PHMSA's excavation damage prevention initiatives
and described the requirements of the PIPES Act, which authorizes PHMSA
to conduct this rulemaking action. The ANPRM may be viewed at http://www.regulations.gov by searching for Docket ID PHMSA-2009-0192.
Specifically, the ANPRM sought comments on the following subjects:
1. Criteria for determining the adequacy of state excavation damage
prevention law enforcement programs;
2. The administrative procedures available to a state for
contesting a notice of inadequacy should it receive one;
3. The Federal requirements for excavators that PHMSA would be
enforcing in a state that PHMSA has determined to have an inadequate
enforcement program;
4. The adjudication process that PHMSA would use if PHMSA cited an
excavator for failure to comply with the Federal requirements for
excavators PHMSA establishes through this rulemaking; and
5. The adequacy of PHMSA's existing requirements for pipeline
operators to participate in one-call organizations, respond to dig
tickets, and perform their locating and marking responsibilities.
A summary of comments and our response to those comments are
provided later in the document.
F. Notice of Proposed Rulemaking
This NPRM proposes to respond to the Congressional mandate
specified in Section 2 of the PIPES Act to:
1. Establish criteria and procedures PHMSA will use to determine
the adequacy of state pipeline excavation damage prevention law
enforcement programs. Such determination is a prerequisite should PHMSA
find it necessary to conduct an administrative enforcement proceeding
against an excavator for violation of the Federal requirements proposed
in this NPRM in the absence of adequate state enforcement of state
excavation damage prevention laws.
2. Establish an administrative process for states to contest
notices of inadequacy from PHMSA should they elect to do so.
3. Establish the Federal requirements PHMSA will enforce in states
with inadequate excavation damage prevention law enforcement programs.
4. Establish the adjudication process for administrative
enforcement proceedings against excavators where Federal authority is
exercised.
G. Summary of the Proposed Rulemaking
A. Standards for Effective State Damage Prevention Enforcement Programs
This NPRM proposes to establish the criteria by which PHMSA will
evaluate state excavation damage prevention law enforcement programs
for minimum adequacy to protect public safety. PHMSA is seeking
comments on using the following criteria to evaluate the effectiveness
of a state's damage prevention enforcement program:
1. Does the state have the authority to enforce its state
excavation damage prevention law through civil penalties?
2. Has the state designated a state agency or other body as the
authority responsible for enforcement of the state excavation damage
prevention law?
3. Is the state assessing civil penalties for violations at levels
sufficient to ensure compliance and is the state making publicly
available information that demonstrates the effectiveness of the
state's enforcement program?
4. Does the enforcement authority (if one exists) have a reliable
mechanism (e.g., mandatory reporting, complaint-driven reporting, etc.)
for learning about excavation damage to underground facilities?
5. Does the state employ excavation damage investigation practices
that are adequate to determine the at-fault party when excavation
damage to underground facilities occurs?
6. At a minimum, does the state's excavation damage prevention law
require the following?
a. Excavators may not engage in excavation activity without first
using an available one-call notification system to establish the
location of underground facilities in the excavation area.
b. Excavators may not engage in excavation activity in disregard of
the marked location of a pipeline facility as established by a pipeline
operator.
c. An excavator who causes damage to a pipeline facility:
i. Must report the damage to the owner or operator of the facility
at the earliest practical moment following discovery of the damage;
and,
ii. If the damage results in the escape of any flammable, toxic, or
corrosive gas
[[Page 19804]]
or liquid that may endanger life or cause serious bodily harm or damage
to property, must promptly report to other appropriate authorities by
calling the 911 emergency telephone number or another emergency
telephone number.
7. Does the state limit exemptions for excavators from its
excavation damage prevention law? A state must provide to PHMSA a
written justification for any exemptions for excavators from state
damage prevention requirements. PHMSA will make the written
justifications available to the public.
PHMSA may also consider individual enforcement actions taken by a
state in evaluating the effectiveness of a state's damage prevention
enforcement program. PHMSA requests comments on this issue.
PHMSA invites comments on the proposed criteria. In particular, are
these criteria sufficient to assess the adequacy of state excavation
damage prevention law enforcement programs? Do these criteria strike
the right balance between establishing standards for minimum adequacy
of state enforcement programs without being overly prescriptive?
B. Administrative Process for States
This NPRM proposes the administrative procedures that would be
available to a state that elects to contest a notice of inadequacy. The
proposed procedures involve a paper hearing where PHMSA finds the
state's excavation damage prevention law enforcement inadequate and
documents the basis for that finding (i.e., following its annual review
of the state's pipeline safety program). Then, the state would have an
opportunity to submit written materials and explanations. PHMSA would
then make a final written determination including the reasons for the
decision. PHMSA proposes to make publicly available all notices,
findings and determinations. The proposed administrative procedures
also provide for an opportunity for the state to petition for
reconsideration of the decision. If the state's enforcement program is
ultimately deemed inadequate, direct Federal administrative enforcement
against an excavator who damaged a pipeline in that state could
proceed. The procedures also give a state the opportunity to
demonstrate at a later time that it has improved its excavation damage
prevention law enforcement program to an adequate level and upon such
showing, request that PHMSA discontinue Federal administrative
enforcement in that state. PHMSA will respond to such requests and
perform an adequacy review in a timely manner and no later than the
next annual review.
PHMSA invites further comments on these proposed administrative
procedures. In particular, does this process strike the right balance
between Congress' direction to undertake Federal administrative
enforcement, where necessary, while providing a state with a fair and
efficient means of showing that the state's enforcement program is
adequate? PHMSA is proposing to evaluate state excavation damage
prevention law enforcement programs consistent with the criteria
proposed in Section 198.55 below. For states that have been deemed to
have inadequate enforcement programs in their most recent annual
reviews and in accordance with the established process, PHMSA could
conduct Federal administrative enforcement against excavators without
further state process. A state with an inadequate program will have
five years from the date of the finding to make program improvements
that meet PHMSA's criteria for minimum adequacy. A state that fails to
establish an adequate enforcement program in accordance with 49 CFR
198.55 within five years of the finding of inadequacy may be subject to
reduced grant funding established under 49 U.S.C. 60107. The amount of
the reduction will be determined using the same process PHMSA currently
uses to distribute the grant funding; PHMSA will factor the findings
from the annual review of the excavation damage prevention enforcement
program into the 49 U.S.C. 60107 grant funding distribution to state
pipeline safety programs. The amount of the reduction in 49 U.S.C.
60107 grant funding shall not exceed 10% of prior year funding. If a
state fails to implement an adequate enforcement program within five
years of a finding of inadequacy, the Governor of that state may
petition the Administrator of PHMSA, in writing, for a temporary waiver
of the penalty, provided the petition includes a clear plan of action
and timeline for achieving program adequacy.
Even though the proposed rule does not require states to take any
actions, the states have several incentives for enforcing their own
excavation damage prevention laws. First, states with effective
enforcement programs have lower rates of excavation damages to
underground utilities, including pipelines. Lower damage rates
translate to increased public and worker safety and decreased repair
and outage costs for pipeline operators.
This proposed rule provides several additional incentives for
states to enforce their own excavation damage prevention laws. First,
in the comments to the ANPRM on this subject, stakeholders expressed
their desire for states to maintain control over their own excavation
damage prevention programs, including the enforcement of damage
prevention laws. Stakeholders agree that damage prevention is a local
and state issue and would prefer to avoid Federal involvement in
enforcement. Second, this NPRM proposes to reduce PHMSA base grant
funding for state pipeline safety programs if states do not implement
effective enforcement programs within five years of findings of
inadequacy (see proposed section 198.53). The potential reduction in
grant funding will provide incentive to the state to address
enforcement gaps in the excavation damage prevention laws and programs.
PHMSA specifically requests comments on the adequacy of these
incentives and the need for additional incentives for states to enforce
their own excavation damage prevention laws.
Currently, states are reevaluating their pipeline safety laws.
Several states, including Washington and Maryland, made significant
changes to their damage prevention laws subsequent to the ANPRM on this
subject. In addition, the following states are in various stages of
legislative efforts to incorporate effective enforcement into their
laws (these efforts range from stakeholder meetings, to building
support for drafting legislation, to actually having a bill before the
state legislatures): California, Ohio, Michigan, Alabama, Mississippi,
Montana, Florida, Kentucky, and Delaware.
C. Federal Excavation Standard
This NPRM proposes to add a new Part 196 to Title 49, Code of
Federal Regulations that prescribes standards for excavators to follow
in conducting excavation activities in areas where underground gas or
hazardous liquid pipelines may be located and the administrative
enforcement process to address violations of the standards. The Federal
requirements PHMSA is proposing to be contained in this Part are the
standards that PHMSA would enforce against excavators in states
determined to have inadequate damage prevention law enforcement
programs pursuant to the procedures proposed in this rulemaking. The
standard that PHMSA is proposing are effectively equivalent to the
standard in 49 U.S.C. 60114(d) which states:
(d) Prohibition applicable to excavators.--A person who engages
in demolition, excavation, tunneling, or construction--
(1) May not engage in a demolition, excavation, tunneling, or
construction
[[Page 19805]]
activity in a state that has adopted a one-call notification system
without first using that system to establish the location of
underground facilities in the demolition, excavation, tunneling, or
construction area;
(2) May not engage in such demolition, excavation, tunneling, or
construction activity in disregard of location information or
markings established by a pipeline facility operator pursuant to
subsection (b); and
(3) Who causes damage to a pipeline facility that may endanger
life or cause serious bodily harm or damage to property--
(A) May not fail to promptly report the damage to the owner or
operator of the facility; and
(B) If the damage results in the escape of any flammable, toxic,
or corrosive gas or liquid, may not fail to promptly report to other
appropriate authorities by calling the 911 emergency telephone
number.
The NPRM proposes to add new excavation standards that include
requirements to use an available one-call system before digging, to
excavate with proper regard for location information or markings
established by a pipeline operator, to promptly report any damage to
the pipeline operator, and to report any emergency release of hazardous
products to appropriate authorities by calling 911 immediately. PHMSA
is seeking comment in this NPRM on whether or not it should establish
an upper limit on the time frame to report any damage to pipeline
operators, such as two hours following discovery.
D. Adjudication Process for Excavators
PHMSA is proposing to use the same adjudication process established
for pipeline safety violations set forth in 49 CFR Part 190. Under this
process, excavators would have the same right as pipeline operators to:
Receive written notice of the allegations including a description of
the factual evidence the allegations are based on, file a written
response to the allegations, request a hearing, be represented by
counsel if the excavator so chooses, examine the evidence, submit
relevant information and call witnesses on the excavator's behalf, and
otherwise contest the allegations of violation. PHMSA proposes that
hearings would be held as they are now for pipeline operators at one of
PHMSA's regional offices or via teleconference. An excavator would also
have the same opportunity as pipeline operators to petition for
reconsideration of the agency's administrative decision. Judicial
review of the final agency action would be available to the same extent
it is available to a pipeline operator.
PHMSA invites further comments on the adjudication process for
excavators. In particular, is the process too formal in the sense that
excavators contesting a citation would have to prepare a written
response for the record and potentially appear before an administrative
hearing officer? Is the process not formal enough in the sense that it
does not provide for formal rules of evidence, transcriptions, or
discovery? Or does this process strike the right balance by being
informal enough to be efficient and at the same time providing enough
formality that excavators feel the process is fair and their ``due
process are maintained''?
E. State Base Grant
PHMSA already conducts annual program evaluations and certification
reviews of state pipeline safety programs. PHMSA would also conduct
annual reviews of state excavation damage prevention law enforcement
programs. A state that fails to establish an adequate enforcement
program in accordance with 49 CFR 198.55 within five years of the
finding of inadequacy may be subject to reduced grant funding
established under 49 U.S.C. 60107. PHMSA would factor the findings from
the annual review of the excavation damage prevention enforcement
program into the 49 U.S.C. 60107 grant funding distribution to state
pipeline safety programs. The amount of the reduction in 49 U.S.C.
60107 grant funding would not exceed 10 percent of prior year funding.
If a state fails to implement an adequate enforcement program within
five years of a finding of inadequacy, the Governor of that state may
petition the Administrator of PHMSA, in writing, for a temporary waiver
of the penalty, provided the petition includes a clear plan of action
and timeline for achieving program adequacy. PHMSA would use the
proposed 49 CFR 198.55 criteria to evaluate the effectiveness of a
state's excavation damage prevention enforcement program.
IV. Analysis of Public Comments on the ANPRM
PHMSA received comments from 39 organizations and 152 individuals,
including:
Associations representing pipeline operators (trade
associations)
[cir] The American Gas Association (AGA)
[cir] The American Petroleum Institute (API)
[cir] The American Public Gas Association (APGA)
[cir] The Association of Oil Pipelines (AOPL)
[cir] The Interstate Natural Gas Association of America (INGAA)
[cir] The Texas Pipeline Association (TPA)
[cir] The Texas Pipeline Safety Coalition (TPSC)
[cir] The Texas Oil and Gas Association (TxOGA)
Transmission and distribution pipeline companies
[cir] Atlanta Gas Light Resources (AGL)
[cir] Baltimore Gas and Electric Company (BGE)
[cir] CenterPoint Energy
[cir] El Paso Pipeline Group (EPPG)
[cir] LDH Energy Pipeline, L.P.
[cir] Marathon Pipeline
[cir] Michigan Consolidated Gas Company
[cir] MidAmerican Energy Company
[cir] Nicor Gas
[cir] Northern Natural Gas Company
[cir] Paiute Pipeline
[cir] Panhandle Energy
[cir] San Diego Gas & Electric
[cir] Southern California Gas Company
[cir] Spectra Energy Transmission
The National Association of Pipeline Safety
Representatives (NAPSR)
Individual state pipeline regulatory authorities
[cir] The Florida Public Service Commission
[cir] The Minnesota Office of Pipeline Safety
[cir] The Missouri Public Service Commission (PSC)
[cir] The Public Utilities Commission of Ohio (PUCO)
[cir] The Tennessee Regulatory Authority (TRA) excavator contractor
associations
[cir] The Associated General Contractors of America (AGC)
[cir] The Associated General Contractors of Texas (AGC of Texas)
[cir] The National Utility Contractor Association (NUCA)
[cir] The Wisconsin Underground Contractors Association (WUCA)
One-call organizations
[cir] Joint Utility Locating Information for Excavators, Inc.
(JULIE)
[cir] GulfSafe
A utilities locating service
[cir] The United States Infrastructure Corporation (USIC)
A local/regional damage prevention council
[cir] The Greater Chicago Damage Prevention Council
A citizens' interest group
[cir] The Pipeline Safety Trust (PST)
The Association of American Railroads
An excavation equipment manufacturer
154 individuals, 145 of whom submitted substantially
similar to comments submitted by excavation contractors.
[[Page 19806]]
To a substantial extent, the comments supported the need for this
rulemaking. When a pipeline is struck during an excavation project, not
only is the public put at risk and energy supplies potentially
disrupted, but the excavator personnel are also at risk of serious
injury or even death. In the ANPRM, PHMSA posed some specific questions
related to state excavation damage prevention programs. Many comments
received were general to the entire ANPRM and others addressed specific
sections and content of the ANPRM. The general comments and comments
related to specific sections of the ANPRM are addressed individually
below.
Many commenters addressed the concept of the questions, as was
intended. Others addressed the questions as they were deemed to apply
currently to specific state damage prevention (SDP) programs.
Additionally, many comments received are outside the scope of the
proposed regulatory changes. Many of the comments were to the effect
that PHMSA enforcement should be applied to all underground utilities.
For example, NAPSR, the Missouri Public Service Commission, AGA, and
several pipeline operators commented that any rulemaking language
should clearly specify the scope to which it applies and that if PHMSA
seeks to expand its enforcement authority outside of pipeline matters,
its legal authority to do so should be explained. While commenters
believe that many states will benefit from broadening their damage
prevention programs beyond pipelines to include other underground
utilities, PHMSA's authority does not extend beyond pipeline facilities
and, as defined in the PIPES Act, excavators under certain specified
conditions.
Federal pipeline safety regulations require gas and hazardous
liquid pipeline operators to have excavation damage prevention programs
in place to protect their pipelines. These regulations require pipeline
operators to participate in state one-call systems and enable PHMSA
enforcement against regulated pipeline operators who fail to comply
with applicable locating and marking requirements, including situations
where their pipelines are damaged by improper excavation activities of
the pipeline operator or its contractors (either excavating or locating
contractors).
General Comments
Involve All Stakeholders in This Rulemaking Process
A number of comments supported PHMSA's approach of involving all
stakeholders in this rulemaking process. Several commenters, including
NAPSR, Missouri Public Service Commission, INGAA, and EPPG commented
that beyond reviewing the written comments, PHMSA should conduct public
meetings on this topic, and should lead open and on-going discussions
of the issues as they arise, through the most appropriate venues. They
noted that public meetings would allow all stakeholder groups to
present their viewpoints and hear similar presentations from others,
thus providing an effective means of gathering additional information
that would assist PHMSA in developing standards for auditing the
adequacy of states' excavation damage prevention enforcement programs
and in issuing an effective and practicable rulemaking. NAPSR
especially wants to be involved in the rulemaking process.
Response
PHMSA recognizes the value of open and ongoing discussions related
to this rulemaking, and, therefore, took the optional step of
publishing an ANPRM in October 2009 to provide information to and
solicit feedback from stakeholders. PHMSA also conducted a meeting with
NAPSR to discuss NAPSR's position and concerns on the issues identified
in the ANPRM. The minutes from the meeting are available on the ANPRM
docket (http://www.regulations.gov, Docket ID PHMSA-2009-0192). PHMSA
does not intend to hold public meetings related to this rulemaking
after the NPRM is published. As an alternative, PHMSA will post a
recorded presentation pertaining to the NPRM on the PHMSA Web site. The
recorded presentation will provide an overview of the proposed rule and
encourage viewers to read and comment on the NPRM.
Federal Administrative Enforcement
USIC Locating Services, API, AOPL, INGAA, and several pipeline
operators commented that PHMSA should develop the necessary processes
and procedures and should not hesitate to use the Federal
administrative enforcement authority granted by Congress to enforce
excavation damage prevention laws where state enforcement programs are
determined to be inadequate. They consider it to be in the public's
best interest and that a key element of an effective excavation damage
prevention program is enforcement action against excavators that do not
follow the one-call laws, and that without enforcement, there is little
incentive for excavators to comply with one-call laws. However, AGC,
API and AOPL commented that Federal administrative enforcement should
not be permanent. It should only last as long as necessary to ensure
the state achieves a successful enforcement program. They noted that
PHMSA should reserve enforcement to only those specific circumstances
permitted by law when a state fails to meet the test for adequate
enforcement of its excavation damage prevention laws. They contended
that where strong and effective state excavation damage prevention laws
and enforcement programs exist, PHMSA need not and should not exert its
Federal authority lest a costly, potentially inefficient layer of
Federal oversight result.
Conversely, WUCA commented that all enforcement of state excavation
damage prevention laws should be at a state or local level and that the
Federal Government should not be involved at all in enforcement. WUCA
commented that excavators who damage underground facilities already pay
for ``at fault'' damages and can be removed from bid lists for specific
utilities. They consider free enterprise to the best ``enforcement''
available and want no Federal Government involvement, and prefer, at
most, state enforcement.
JULIE, commented that it would seem contradictory that a particular
state's excavation damage prevention enforcement program could be
``taken over'' by an agency (i.e., PHMSA) whose jurisdiction is limited
solely to pipelines. JULIE suggested that PHMSA limit itself to
providing assistance to state excavation damage prevention systems to
help them improve enforcement of state excavation damage prevention
laws.
Response
Congress provided that PHMSA undertake this rulemaking action in
Section 2 of the PIPES Act. The PIPES Act requires that PHMSA must
determine that a state's excavation damage prevention law enforcement
program is inadequate before PHMSA may take enforcement action for a
violation by an excavator occurring in that state. Thus, PHMSA cannot
take enforcement actions against excavators in states determined by
PHMSA to have adequate enforcement programs. PHMSA's goal is to
encourage states to implement adequate enforcement programs. Federal
administrative enforcement is not intended to be the
[[Page 19807]]
primary means of pipeline damage prevention enforcement and is instead
intended to provide incentives for states to develop and implement
adequate programs and serve as a backstop in states with inadequate
programs.
State Program Evaluation Should Include an Appeals Process
Several commenters noted that the process for determining whether a
state's enforcement of its excavation damage prevention law is
``inadequate'' should contain an appeals process and timeframe by which
PHMSA needs to respond to appeals. Northern Natural Gas commented that
the rulemaking should provide for an arbitration element when there is
a dispute over a state's enforcement program, and that the state should
be allowed an opportunity to improve its excavation damage prevention
program if PHMSA determines that the program does not meet the minimum
Federal requirements.
Response
This NPRM proposes the administrative process by which a state may
contest a notice of inadequacy from PHMSA. Additionally, states deemed
to have inadequate excavation damage prevention law enforcement
programs will have the opportunity to enhance their programs and to
demonstrate their adequacy through periodic reviews. Programs PHMSA
previously determined to be inadequate may later be found adequate if a
state takes steps to implement an effective enforcement program (see
proposed Subpart D of Part 198).
Minimum Damage Prevention Program Requirements
API, INGAA, several pipeline operators, and three Texas pipeline
associations commented that PHMSA should establish clear, well-defined,
and consistent minimum criteria for determining the adequacy of
acceptable state excavation damage prevention laws and programs. API,
AOPL and Nicor commented that the fundamental minimum requirements that
should apply in evaluating state programs are that all excavators,
including state agencies and municipalities: (1) Use state one-call
systems prior to excavation, (2) follow location information or
markings established by pipeline operators, (3) report all excavation
damage to pipeline operators, and (4) immediately notify emergency
responders by calling 911 when excavation damage results in a release
of pipeline products.
AGA and several pipeline operators commented that PHMSA should keep
the overall review process and the criteria for determining the
adequacy of state programs as simple as possible. They noted that
PHMSA's evaluation of the adequacy of states' excavation damage
prevention programs should be based upon a relatively short list of
elements. They also noted that PHMSA will likely discover that few
states have an excavation damage prevention program that would clearly
meet all or even most of the criteria listed in the ANPRM.
Response
PHMSA agrees that the criteria for evaluating the adequacy of state
excavation damage prevention law enforcement programs should be clear,
well-defined, consistent, and as simple as possible. These criteria
helped guide development of the criteria proposed in this NPRM. PHMSA
seeks comments on these criteria.
PHMSA Should Encourage States To Implement and Enforce Effective Damage
Prevention Laws
Many commenters, including the AGC, API, AOPL, INGAA, state
regulatory agencies and many individual pipeline operators, agree with
PHMSA's goal of encouraging states to implement, maintain and enforce
effective excavation damage prevention laws. They encouraged PHMSA to
move forward promptly to issue a final rule to accomplish the objective
set forth in the ANPRM of promoting better, more effective enforcement
of state excavation damage prevention laws. The NUCA and several
pipeline trade associations recognized that PHMSA's jurisdiction is
limited to gas and hazardous liquid pipelines. They commented, however,
that this regulation's influence on how state authorities adjust their
programs and enforcement practices to protect all underground
facilities will be significant, and that addressing enforcement in a
balanced and comprehensive manner in the proposed rule will facilitate
the entire process.
Three Texas pipeline associations suggested that standards
consistent with key aspects of the Common Ground Alliance Best
Practices should be adopted by states to ensure the scope of their
enforcement programs are adequate. They noted those key provisions
include tolerance zone, positive response, due care in excavating, and
reporting damages.
Response
As noted, PHMSA supports effective state excavation damage
prevention law enforcement to protect pipelines. PHMSA strongly
believes that individual states should retain the primary
responsibility to enforce their excavation damage prevention laws
effectively. The proposed regulations do not conflict with the best
practices established by the Common Ground Alliance.
Apply Enforcement to All Excavators--No Exemptions
Several respondents, including NUCA and EPPG, commented that state
excavation damage prevention laws and enforcement processes should
apply to pipeline operator ``in-house'' and contractor excavators. They
noted that ``first-party'' (facility operators) and ``second-party''
(operator contractor) damages, although often unreported, carry the
same consequences as pipeline damages caused by landscapers, home
owners, and other ``third-party'' excavators.
AGA and several pipeline operators noted that the term
``excavator'' is used throughout the ANPRM but that it was not clear
what constitutes an excavator or excavation, thus clarification is
needed.
NUCA, API, AOPL, and several pipeline operators commented that the
scope of enforcement for all programs, Federal and state, should
encompass all excavators, including state agencies, municipalities,
counties, parishes, agricultural entities, and railroads. They believe
that state law should require all excavators to call the one-call
center and request facilities to be located and marked before digging,
and that the exclusion of a category of excavator should be considered
a basis for PHMSA regulation and direct enforcement.
Response
PHMSA agrees that state excavation damage prevention laws and
enforcement should apply to all excavators, including pipeline
operators and their contract excavators and locators. Current Federal
pipeline safety regulations at 49 CFR 192.614 and 195.442, require gas
and hazardous liquid pipeline operators, respectively, to comply with
specific excavation damage prevention requirements. PHMSA and its state
partners have authority to enforce these regulations against pipeline
operators and can pursue enforcement action against pipeline operators
when an operator's employees or its contractors, including
[[Page 19808]]
excavators and locators, violate the regulations.
PHMSA also agrees that, in general, exemptions of categories of
excavators from state excavation damage prevention laws can be
problematic because exempt excavators can damage underground utilities.
However, some exemptions may be justifiable in some states, especially
where substantiated by data (e.g., Virginia's exemptions for VDOT).
States are ultimately responsible for establishing their own excavation
damage prevention laws.
Under this proposed rule, only homeowners using hand tools, as
opposed to than mechanized excavating equipment, on their own property
are exempt from Federal administrative enforcement action. All other
excavators would be subject to Federal enforcement in a state PHMSA
deems to have an inadequate enforcement program, regardless of an
excavator's exemption status under that state's law.
Fines and Penalties
Many commenters acknowledged that the use and application of civil
penalties is necessary as an effective tool to deter violations of
state excavation damage prevention laws that could lead to pipeline
damage. Comments also indicated that civil penalties should be applied
at an appropriate level to achieve such deterrence, including the
escalation of fines and penalties for repeat offenders. Northern
Natural Gas and others agreed that a responsible state agency should
have the ability to levy fines and civil penalties similar to the
Federal maximums. However, several commenters, including PUCO, noted
that PHMSA could clarify the maximum civil penalties PHMSA will require
for a state program to be determined ``adequate.'' Additionally, some
commented that education and training should be considered in lieu of
fines and penalties for minor violations.
Response
PHMSA is not proposing a specific penalty amount or schedule as a
criterion in determining the adequacy of state excavation damage
prevention law enforcement programs. However, state penalty levels
should be sufficient to deter violations. PHMSA will review state
enforcement records on a state-by-state basis.
Clarification of Terminology and Parties Subject to PHMSA Enforcement
Action
Several comments asked for clarification of some terminology used
in the ANPRM or, in some cases, clarification of the scope of the
rulemaking. For example, WUCA asked for clarification of where
enforcement would start--with gas mains or service lines or both. PUCO
and some gas pipeline operators asked that the term ``incident'' be
clarified. Is it as defined in 49 CFR Sec. 191.3? Does it mean only
incidents reportable under the applicable Federal or state law? Or,
does it mean every event wherein damage occurs, regardless of the
magnitude or consequences? PUCO also commented that the definition and
implications of a state program designation of ``nominally adequate''
need to be clarified.
NAPSR asked what ``available'' means, regarding the question in the
ANPRM ``Are records of investigations and enforcement available to
PHMSA?'' Additionally, NAPSR asked for clarification on the terms
``reasonable care'' and ``timely.'' Other terms noted for clarification
include: all excavation damage, damage, incident, excavation, and
excavator.
Response
This rulemaking applies to all excavators and excavation activities
that affect any gas or hazardous liquid pipelines subject to the
pipeline safety laws in 49 U.S.C. 60101 et seq., including gathering,
transmission, and distribution pipelines (including gas mains and
service lines). Those terms are defined in existing laws and
regulations. PHMSA will retain the discretion to determine if
enforcement action is necessary on a case-by-case basis. In response to
commenters' concerns, PHMSA has taken care to clearly define terms in
this regulation.
Complaint-Based Enforcement Process
Centerpoint Energy suggested a ``complaint-based'' process in which
a pipeline operator or an excavator can file a complaint to petition
for enforcement actions by the state, or to petition PHMSA to review
the adequacy of the state's enforcement process. Centerpoint expressed
the view that PHMSA should only initiate enforcement actions upon
receipt of filed complaints and that one allegation in each complaint
would have to be that the state's enforcement process is not adequate
to prevent repeated violations. Centerpoint would prefer that the state
could intervene as an interested party and dispute the claim and PHMSA
would have to conduct a hearing and require specific findings
concerning what aspects of the state's enforcement efforts were
inadequate. Centerpoint considers that findings of inadequacy would
relieve the complaining parties from the duty to resolve disputes at
the state level until the state resolved those issues of inadequacy.
Centerpoint commented that costs for PHMSA could be assessed to the
losing party or split between the two.
Centerpoint commented that a complaint-based process would allow
the operator, excavator, the state agency and PHMSA to direct time and
resources where they are most needed. Centerpoint believes that a
pipeline operator is in the best position to determine when an
excavator is willfully ignoring the excavation damage prevention
program and will likely continue to do so in spite of any actions the
operator takes. They also consider that an operator can collect
evidence to show it was unable to change excavator behavior and that
punitive enforcement is needed, and to show that Federal administrative
enforcement is necessary because a state's enforcement efforts were not
adequate to affect the behavior of the excavators. Similarly,
Centerpoint comments that excavators should be able to file complaints
against operators that will not respond to locate requests or that
consistently do a poor job of locating their facilities.
Response
PHMSA proposes to use the criteria and procedures proposed in this
NPRM to assess the adequacy of state excavation damage prevention law
enforcement programs. Once those evaluations are complete, PHMSA will
determine, on a state-by-state basis, if Federal administrative
enforcement action is necessary in states deemed by PHMSA to have
inadequate enforcement programs. Under Sec. 198.55, PHMSA would
evaluate the state enforcement program in its entirety, but may also
consider individual enforcement actions taken by a state where
warranted. PHMSA may become aware of a potential need for Federal
administrative enforcement through a variety of mechanisms, including
notifications of reportable incidents, instances of a serious and
recurring nature where excavators fail to comply with the Federal
requirements proposed in this NPRM, or by other means, including
complaints. PHMSA requests comments on ways or mechanisms that it can
utilize to become aware of these incidents. PHMSA believes it is
important to retain flexibility in the process used to make decisions
concerning the use of Federal administrative enforcement authority.
PHMSA will only conduct enforcement in states deemed to have inadequate
enforcement programs in accordance with the criteria outlined in this
NPRM.
[[Page 19809]]
Evaluate Enforcement Programs, Not Individual Enforcement Actions
INGAA and others commented that the standards and procedures for
adequacy proceedings should be directed toward evaluating state
enforcement programs, not specific enforcement actions. INGAA holds
that applying adequacy standards and procedures to individual
enforcement actions invites selective PHMSA involvement contrary to
vesting primary enforcement responsibility with the states. Similarly,
and consistent with using adequacy proceedings to examine programs
instead of decisions, INGAA commented that PHMSA should specify that
inadequacy findings are not retroactive--that a finding of inadequacy
should not be used to revisit and alter a state's enforcement findings
and sanctions.
Response
In determining a state program's adequacy, PHMSA would evaluate a
state's overall damage prevention enforcement program, but may evaluate
past specific state enforcement actions during the evaluation process.
PHMSA did consider a system of addressing the adequacy of state
enforcement programs on an incident-by-incident basis instead of
through an annual review of the state enforcement programs. Under that
scenario, upon determining that enforcement action in a given incident
may deter future incidents, PHMSA would assess the state's ability to
conduct effective enforcement in that particular incident and proceed
with enforcement action if PHMSA found the state program inadequate.
However, PHMSA believes that such a system would be inefficient and
administratively burdensome and that an annual review may be more
appropriate. PHMSA seeks comment on this issue.
Federal Funding
API, AOPL, TRA and WUCA commented that PHMSA should continue its
assistance to state agencies seeking to develop and enforce effective
excavation damage prevention programs through grants and other support
mechanisms. They noted that this assistance should include providing
quantitative analyses that demonstrate the effectiveness of existing
excavation damage prevention programs and developing incentives to
ensure that agencies and other stakeholders in the states cooperate in
these efforts. TRA went on to comment that a state agency that is
making a concerted effort to make changes to its excavation damage
prevention law to meet the nine elements should not be punished by
having its level of funding decreased.
PUCO was concerned that changes in how PHMSA evaluates state
excavation damage prevention programs could result in a designation of
a program being ``inadequate'' or ``nominally adequate,'' and that such
a designation may affect funding and ultimately gas pipeline safety.
PUCO commented that despite the stated assurance in the ANPRM that
funding for the development and implementation of excavation damage
prevention programs is ``intended to be in addition to, and independent
of existing Federal funding of the state pipeline safety programs,''
the implications of designation of ``inadequate'' or ``nominally
adequate'' on a state excavation damage prevention program's current
funding is not addressed. PUCO commented that it would be beneficial
for PHMSA to describe whether and how state funding for the gas
pipeline safety program will be affected by a determination of
``inadequate'' or ``nominally adequate.''
The three Texas pipeline associations noted that PHMSA should
evaluate the adequacy of state programs in a similar fashion to that of
PHMSA's existing state program evaluation. They commented that a
state's annual program performance evaluation could result in a reward
of additional grant monies or a penalty of a reduction in grant moneys
based on PHMSA's excavation damage prevention law enforcement program
assessment, to a greater degree than is currently practiced.
Response
PHMSA intends to continue its support of states seeking to develop
and enforce effective excavation damage prevention programs through
grants and other means. PHMSA has undertaken a variety of both
qualitative and quantitative initiatives that demonstrate the
effectiveness of existing state excavation damage prevention programs.
These initiatives are described in the ANPRM pertaining to this
rulemaking (http://www.regulations.gov, Docket ID PHMSA-2009-0192).
When evaluating a state's overall pipeline safety program, PHMSA will
continue to consider the extent to which a state has implemented an
effective excavation damage prevention enforcement program. The effect
on base grant funding of a declaration that a state's excavation damage
prevention enforcement program is inadequate is proposed in this NPRM.
State Authority for Interstate Pipeline Operators
Paiute Pipeline and three Texas pipeline associations submitted
comments regarding how interstate pipeline operators are expected to be
treated under a state's excavation damage prevention program and noted
that PHMSA should provide clarification in this regard. The issue they
noted is whether the operator is treated as an excavator or as an
operator and whether state agencies have the authority to enforce state
excavation damage prevention standards on interstate pipeline operators
or on excavators working near interstate pipelines. They consider this
to be especially the case for states that have not applied for, or been
granted, interstate agent status for natural gas and/or hazardous
liquid lines. Paiute commented that authority for inspection and
enforcement of interstate pipelines pursuant to Federal regulations
should remain with PHMSA, and that in states that don't have interstate
pipeline inspection and enforcement authority, the state should treat
an interstate pipeline as an excavator, not a pipeline operator.
The three Texas pipeline associations commented that there should
be a process for states to clarify that they have the ability to
enforce state excavation damage prevention standards with regard to
interstate pipelines, through a statutory change or through a
Memorandum of Understanding between PHMSA and the states when certain
program standards are met. Spectra Energy commented that the existing
enforcement process in 49 CFR Part 190 should continue to be applied to
interstate pipeline operators.
Response
States that have an annual certification under 49 U.S.C. 60105 have
authority to regulate the intrastate pipelines in that state covered by
the certification. States that have an interstate agent agreement under
49 U.S.C. 60106 may conduct inspections and investigations on
interstate pipelines, but must refer any alleged violations on
interstate pipelines to PHMSA for enforcement action. While states are
generally preempted from establishing or enforcing safety standards for
interstate pipelines, 49 U.S.C. 60104 contains a specific provision
that allows a state's pipeline damage prevention one-call program to
apply to interstate pipelines as well as intrastate pipelines.
Accordingly, all excavators and pipeline operators in a certified
state are
[[Page 19810]]
generally subject to the requirements of that state's excavation damage
prevention laws (except when explicitly exempted by state law). The
applicability of excavation damage prevention requirements within a
state is determined by that state's law. Under the provisions included
in this NPRM, state excavation damage prevention laws will continue to
be enforced as specified by state laws except when PHMSA deems a
state's enforcement program inadequate. In that case, PHMSA proposes to
enforce the Federal requirements established by this rulemaking against
excavators in that state who fail to comply with the Federal
requirements. Regardless of the status of a state's damage prevention
program, PHMSA is proposing to retain its existing enforcement
authority over pipeline operators and will continue to enforce the
requirements related to excavation damage prevention (49 CFR 192.614
and 195.442) for pipeline operators it regulates.
Model Programs
NAPSR, Missouri PSC, AGA and several pipeline operators noted that
care should be exercised about urging states to adopt concepts of what
a ``model'' excavation damage prevention program should be. They
cautioned that PHMSA should be open-minded in its review of state
programs, allow for alternate approaches for damage investigations, and
not have preconceived ideas on what an effective state excavation
damage prevention program should include. AGA and several operators
noted that PHMSA should avoid taking a prescriptive approach on the
overall review of the state's excavation damage prevention enforcement
process. They suggested that PHMSA should adopt a holistic and data-
driven approach to adequacy assessment. For a state with documented
success at excavation damage prevention, compliance with specific PIPES
Act criteria should be at most a basis for suggested improvement. They
noted that a state program should never be deemed inadequate solely
because it did not meet all of these criteria.
NAPSR noted that depending on how its proposed provisions are
interpreted, a program such as the one apparently envisioned by PHMSA
in the ANPRM could be burdensome and costly. NAPSR noted that PHMSA
should not presume that states can or will readily change their laws in
response to Federal initiatives, and should be mindful of unintended
consequences that may arise upon re-opening the existing state law to
further amendments. NAPSR stated that it is likely that if onerous
provisions are adopted in the proposed rule, some states will simply
defer to Federal administrative enforcement, in which case NAPSR
expects PHMSA will undertake every action it would otherwise expect a
state to perform.
API and AOPL commented that state excavation damage prevention
program evaluations should be based primarily on the effectiveness of
the overall programs in place and allow for flexibility in the
statutory or regulatory language. They noted, for example, a state
program may be considered adequate if it has met the fundamental
requirements described in the introduction, but failed to meet other
program elements required by PHMSA, as long as the state can
demonstrate overall program effectiveness. They consider that an
excavation damage prevention program that establishes a generally
acceptable baseline should provide an objective measuring stick.
Panhandle Energy commented that a template or recommended practice
for enforcement of excavation safety is required, so that both PHMSA
and the states have a clear understanding of the requirements, before
any program evaluation takes place.
Response
As noted, PHMSA's goal is to provide incentives to states to
develop and implement effective excavation damage prevention and
enforcement programs. PHMSA believes there are some fundamental
components of effective state enforcement programs. For example, an
adequate enforcement program requires, at a minimum, the existence of
statutory enforcement authority that includes civil penalties for
violations and the use of that authority. The criteria for evaluating
state enforcement programs proposed in this NPRM address those
fundamental components (see proposed section 198.55).
Evaluate the Entire State Program
NUCA commented that PHMSA should evaluate each state's excavation
damage prevention program as a whole. Even if thorough enforcement
exists in a particular state, if the program itself does not adequately
address the nine elements of an effective excavation damage prevention
program, the entire program itself may be inadequate. If a state's
excavation damage prevention program and enforcement practices were to
focus exclusively on excavator responsibilities, that program is not
fully addressing excavation damage prevention. AGA, APGA, and several
pipeline operators commented that for a state to have a documented
excavation damage prevention program alone is not enough; it is
critical for the state agency to have the resources and the incentive
to exercise its authority, when necessary.
In this regard, NAPSR commented that an important factor to
consider in assessing the overall adequacy of a state excavation damage
prevention program would be the relative weight given to the various
proposed individual assessment factors listed in the ANPRM. NAPSR
noted, for example, that enforcement of excavation damage prevention
laws has been shown to be an essential element of a successful
excavation damage prevention program. The issuance of appropriate civil
penalties has been a demonstrated deterrent to non-compliant behavior.
When assessing the adequacy of excavation damage prevention programs,
this factor could be given a heavier weight than, for example,
exempting certain parties who perform less risky excavations.
Similarly, APGA commented that some of the assessment factors should
receive more weighting than others and that weighting should be
discussed with the affected parties. APGA noted that the ANPRM is a
good start in opening a dialogue with the affected public, industry and
state governments.
With regard to weighting the assessment factors, AGA commented that
the most important criteria are the ones involving timely reporting of
pipeline damages, a universal requirement for all parties to notify the
one-call center prior to excavation, establishment of a single agency
responsible for oversight of excavation damage prevention laws, and an
effective enforcement process. AGA noted that the list of criteria
listed in the ANPRM appears thorough, but how the criteria are weighted
and actually evaluated is open to several different approaches.
Michigan Consolidated Gas commented that consideration should be
given to states that are working on revising their state laws.
Response
Effective excavation damage prevention law enforcement is critical
to an effective excavation damage prevention program, but enforcement
is just one component of an effective program. PHMSA has undertaken
several efforts to document state excavation damage prevention programs
in their entirety. Information regarding those efforts is available at
http:// primis.phmsa.dot.gov/comm./
[[Page 19811]]
damagepreventionsummary.htm. However, the PIPES Act states:
``(f) LIMITATION.--The Secretary may not conduct an enforcement
proceeding under subsection (d) for a violation within the
boundaries of a state that has the authority to impose penalties
described in section 60134(b)(7) against persons who violate that
state's damage prevention laws, unless the Secretary has determined
that the state's enforcement is inadequate to protect safety,
consistent with this chapter, and until the Secretary issues,
through a rulemaking proceeding, the procedures for determining
inadequate state enforcement of penalties.''
While evaluating state excavation damage prevention programs in
their entirety is part of the annual review of a state's overall
pipeline safety program performed by PHMSA in connection with the state
grant process, this proposed rulemaking is focused solely on the
enforcement component. In this NPRM, PHMSA has proposed the criteria
for evaluating state excavation damage prevention law enforcement
programs.
PHMSA does not propose to weight the criteria used in evaluating
state excavation damage prevention law enforcement programs. Weighting
the criteria could create an overly-prescriptive set of criteria. PHMSA
believes the proposed criteria are simple enough to not warrant a
specific scoring or weighting method. PHMSA specifically asks for
comments on whether it should weight the criteria, how the critieria
might be weighted, and the rationale for weighting the criteria in
evaluating state excavation damage prevention law enforcement programs.
Evaluation of state enforcement programs will pertain to state laws
and regulations in effect at the time of evaluation. PHMSA believes
that states should have the opportunity to demonstrate improvements in
their enforcement programs and petition PHMSA for reevaluation of their
programs as necessary and appropriate.
Damage Reporting
Many commented that they do not support reporting all pipeline
damages as this will create an unnecessary burden on the operator, the
state, and PHMSA. Conversely, Northern Natural Gas commented that
excavators should be required to report all pipeline damage to the
affected pipeline operator.
Response
This proposed rulemaking does not address requirements for damage
reporting by pipeline operators. However, the reporting of damages that
provides enough detail for analysis and resource allocation is critical
in developing effective excavation damage prevention programs because
inadequate reporting will result in a failure to investigate incidents
that should be investigated. Therefore, PHMSA encourages all states to
develop effective excavation damage reporting requirements. The CGA
Damage Information Reporting Tool (DIRT) is an effective means of
collecting data on damages to pipelines and other underground
facilities. This is a voluntary filing requirement that can assist in
the collection of data on damages. The data is made available to the
Federal government, states and the public by the CGA. As provided in
the PIPES Act, this proposed rulemaking requires an excavator who
causes damage to a pipeline facility to report the damage to the owner
or operator of the facility promptly.
Perform Annual Reviews Only for State Enforcement Programs Deemed
Inadequate
AGA and several pipeline operators commented that annual excavation
damage prevention program reviews are not necessary for those states
with adequate programs. They noted that it would be reasonable for
PHMSA to establish a five-year review cycle for those states. Their
basis is that a state's overall program will change minimally over the
course of a year and that an annual audit of every program seems
unnecessary. From the standpoint of administrative efficiency, it would
be far better for PHMSA to lengthen its review cycle for programs found
adequate after an initial audit, and focus its resources on the
programs it found inadequate or adequate subject to specific corrective
action. PHMSA should only perform annual reviews for states found to
have a ``nominally adequate'' or inadequate program so that these
states have the opportunity to have their status re-evaluated to
identify areas for improvement and additional emphasis.
JULIE, Inc. commented that there appears to be no probationary
period or other opportunity for states to improve upon PHMSA's
recognized ``deficiencies'' prior to PHMSA undertaking enforcement
actions.
Response
PHMSA agrees that resources and attention should be focused on
state excavation damage prevention law enforcement programs that are
deemed inadequate. However, PHMSA proposes that all SDP enforcement
programs be evaluated concurrently with PHMSA's annual state pipeline
safety program evaluations, or at the request of states as appropriate.
PHMSA does not believe the addition of these evaluations will be overly
cumbersome. PHMSA also proposes that states be given a five-year grace
period after notification that their enforcement programs have been
deemed inadequate to address deficiencies in their programs before
state pipeline safety base grant funding levels are potentially
affected. However, PHMSA proposes that Federal excavation damage
prevention enforcement may take place at any time after a state's
enforcement program is deemed inadequate. The process for evaluating
state enforcement programs is described in this NPRM.
Comments on Section IV Issues on Which PHMSA Sought Comment
In Section IV of the ANPRM, pipeline operators, excavators, states
and the public were urged to consider the appropriate procedures for
determining the adequacy of state excavation damage prevention law
enforcement programs, as well as the need for Federal administrative
enforcement in the absence of an adequate state program. PHMSA posed
specific questions to solicit stakeholder input. These included
questions related to:
A. Criteria for Determining the Adequacy of SDP Enforcement
Programs;
B. Administrative Process;
C. Federal Requirements for Excavators;
D. Adjudication Process; and
E. Existing Requirements Applicable to Owners and Operators of
Pipeline Facilities.
Many of the comments received were repetitious of those noted above
under General Comments.
A: Criteria for Determining the Adequacy of SDP Enforcement Programs
In Section IV.A of the ANPRM, PHMSA noted that ``a threshold
criterion for determining the adequacy of a state's damage prevention
enforcement program will be whether the state has established and
exercised its authority to assess civil penalties for violations of its
one-call laws. PHMSA will likely consider the following issues in
further evaluating the enforcement component of [state damage
prevention] programs.'' The ANPRM then listed 13 items for
consideration and comment. Following are comments received relative to
those items:
Item 1: ``Does state law contain requirements for operators to be
members of and participate in the state's one-call system (similar to
[[Page 19812]]
current federal pipeline safety regulations, 49 CFR 192.614 and 49 CFR
195.442)?''
Several commented that Federal pipeline safety regulations
adequately address this requirement for pipeline operators. Several
commenters also said that each state excavation damage prevention
program should require all underground facilities operators to be
members of the state's one-call system(s).
NUCA commented that ``participation'' in excavation damage
prevention includes calling the one-call center before excavating.
However, NUCA also commented that underground facility operators being
members of the appropriate one-call center is fundamental to the
excavation damage prevention process and that exemptions only increase
the likelihood of facility damages. NUCA cites the Common Ground Study
of One-Call Systems and Damage Prevention Best Practices, for which
``the underlying premise for prevention of damage to underground
facilities, and the foundation for this study, is that all underground
facility owners/operators are members of one-call centers, and that it
is always best to call before excavation.''
Michigan Consolidated Gas questioned how the state and/or PHMSA
would take into account operators that do not have the resources,
equipment, funding, etc., to locate their facilities.
Response
Sections 192.614 and 195.442 of the pipeline safety regulations
require regulated pipeline operators to be members of qualified one-
call systems in the states in which they operate. All states certified
to regulate gas operators will have adopted Sec. 192.614 allowing them
to enforce it against the intrastate gas operators they regulate.
Items 2 and 3: ``Does state law require all excavators to use the
state's one-call system and request that underground utilities in the
area of the planned excavation be located and marked prior to digging?
Has the state avoided giving exemptions to its one-call damage
prevention laws to state agencies, municipalities, agricultural
entities, railroads, and other groups of excavators?''
NAPSR commented that the standards to which PHMSA would hold a
state in terms of ``excavation'' must be consistent with the terms used
in that state's law. NAPSR noted that there may be very legitimate
reasons for exemptions in a state one-call law. For example,
agricultural exemptions may recognize the total impracticality of
attempting to include normal farm tillage. Others may conclude that the
risk of an activity is so low that regulation is not justified, such as
opening a grave in a cemetery. Still others may be the result of
carefully crafted legislative compromises to achieve passage of one-
call legislation, the reopening of which could have negative
consequences. NAPSR also noted that 49 U.S.C. 60114(d), which lists
demolition, excavation, tunneling, or construction, or excavation as
defined in paragraph 192.614(a), is far from all-inclusive, in that it
seems to exclude farm tillage and gardening, and perhaps activities
such as pipe or cable plowing. NAPSR considers that PHMSA must
determine to what extent certain exemptions in individual states will
be acceptable.
AGA, along with Nicor, Paiute Pipeline and Southwest Gas
Corporation, agreed that exemptions are a critical consideration in
evaluating the adequacy of state excavation damage prevention law
enforcement programs. They noted that exemptions are inherently counter
to the entire concept of excavation damage prevention being a shared
responsibility. They noted that in several states, exemptions have been
granted, for example, to state DOTs, counties, municipalities,
railroads, and private land owners. The exemptions can take on
different forms; some apply so that the entity does not need to belong
to the one-call center for the purpose of marking its underground
facilities, while others allow an entity to excavate freely without
having to notify the one-call center, and still others allow certain
parties to be free of enforcement penalties. The commenting
organizations hold that exemptions often exist only because of private
interests that enable certain entities to escape responsibility in the
excavation damage prevention process.
They also commented that exemptions serve as an impediment when
stakeholders attempt to craft new legislation for state excavation
damage prevention laws. They referred to the DIMP Phase 1 Report
(http://primis.phmsa.dot.gov/dimp/docs/IntegrityManagementforGasDistributionPhase1Investigations2005.pdf), in
commenting that all stakeholders must participate in the excavation
damage prevention process for it to be successful.
Spectra Energy commented that PHMSA's criteria should force states
to eliminate all exemptions from their one-call requirements. Spectra
noted that a number of states continue to exempt from the one-call
requirements certain types of excavators, such as agriculture,
railroads and state/county road commissions. Spectra considers that to
provide exemptions is contrary to the goal of pipeline safety, noting
that the pipeline operator is the most qualified entity to determine if
a pipeline exists within the area of interest, to locate and mark the
facility, and to determine the safety precautions necessary to ensure
the pipeline is not impacted.
JULIE, Inc. expressed a concern that some states' cultures provide
for the successful existence of more than one excavation damage
prevention system (one-call center) that does not have overlapping
geographic areas. There appears to be no process in the ANPRM to
recognize separate evaluation results in those states, particularly
when possibly one or both of the systems may have unique but strong
enforcement programs in place.
Response
As noted in the response to the General Comments above, some
exemptions may be justifiable in some states, especially where
substantiated by data. If having absolutely no exemptions were a
``pass/fail'' criterion for evaluating state excavation damage
prevention law enforcement programs, PHMSA believes that nearly every
state (if not all states) would be declared inadequate.
PHMSA does not propose an absolute prohibition on exemptions from
state one-call damage prevention requirements. States are ultimately
responsible for establishing the excavation damage prevention laws that
best suit their own circumstances. PHMSA policy strongly encourages
states to limit exemptions, for both excavators and utility owners/
operators, from excavation damage prevention laws to the extent
practicable. To that end, one of the criteria for determining the
adequacy of state excavation damage prevention law enforcement programs
proposed in this NPRM is ``limited and justified'' exemptions for
excavators from the requirements of state excavation damage prevention
laws.
In assessing state excavation damage prevention law enforcement
programs, PHMSA will assess all programs if the state under evaluation
has multiple enforcement programs. In that case, PHMSA may declare one
or more of the enforcement programs inadequate, thereby allowing PHMSA
to conduct Federal administrative enforcement actions in geographic
areas covered by the inadequate program.
Item 4: ``Are the state's requirements detailed and specific enough to
allow
[[Page 19813]]
excavators to understand their responsibilities before and during
excavating in the vicinity of a pipeline?''
Paiute Pipeline and Southwest Gas Corporation recommended that
PHMSA extend this objective to include excavating in the vicinity of
any underground facility and supported PHMSA's objective of states
providing clarity to excavators to ensure that detailed and specific
information is available so they understand their responsibilities
before and during excavation within the vicinity of a pipeline.
Similarly, AGL Resources commented that this item is an appropriate
consideration when determining the adequacy of a state's excavation
damage prevention program, and noted that ensuring that excavators
understand expectations and consequences is an important aspect of
promoting compliance.
NAPSR commented that addressing this criterion could be very
subjective and that specific criteria would be needed for determining
what is ``detailed and specific enough.'' They noted that some states
may have extensive regulations, while others may have successful
excavation damage prevention programs with limited regulatory
intervention.
MidAmerican Energy Company commented that the detail and
specificity of each state's law need not match the level of detail of
the proposed Federal requirements. They noted that there is value in
allowing states to tailor their statutory and regulatory requirements
to the specific circumstances presented in that state. They further
noted that the level of detail of responsibilities is best determined
by each situation, condition and scheme and operator requirements for
excavations on or near its underground facilities, given that
underground pipelines are constructed and operated in varied geographic
locations such as remote wilderness, prairie, active agricultural
lands, forests, residential, commercial, industrial, and subsea
environments.
AGA considers that state requirements for most professionals in the
excavation industry adequately convey the responsibilities involved in
proper excavation. However, it noted excavators are often non-
professionals who do not understand safe digging practices or even the
importance of notifying the one-call center. AGA noted that according
to CGA's 2008 DIRT Report, occupants and farmers have been the
excavator in 8 to 10 percent of the damage reports collected over the
three-year period between 2006 and 2008.
Response
PHMSA encourages states to utilize plain language principles \6\
when drafting their pipeline safety regulations. At the same time,
though, PHMSA does not want to be overly subjective in establishing
criteria for determining adequacy and PHMSA continues to believe that
states can and should develop excavation damage prevention laws that
best suit their particular needs. Therefore, PHMSA is not proposing to
use the detail and specificity of state law as a criterion at this
time. However, PHMSA believes that states should collect and manage
data that is detailed enough to demonstrate that excavators clearly
understand the requirements of state excavation damage prevention laws.
\6\ Further information on plain language principles can be
found in Federal guidance here: http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-15.pdf.
---------------------------------------------------------------------------
Item 5: ``Are excavators required to report all pipeline damage
incidents to the affected pipeline operators?''
Many commenters considered this item to be essential in evaluating
the adequacy of state excavation damage prevention law enforcement
programs. The TRA commented that mandatory reporting of damages to
pipeline facilities should be a part of any effective excavation damage
prevention program. AGA views this as one of the most important issues
for evaluation and cited it as being included in the PIPES Act. AGA
noted that the failure of excavators to notify the pipeline operator of
damage promptly has resulted in some significant pipeline ruptures
involving fatalities, injuries, and property loss. AGA cited that past
incidents have been a painful reminder that just nicking the pipe
coating or cutting a cathodic protection wire can affect the long-term
integrity of the pipe and lead to a leak or rupture. Nicor commented
that despite the requirement, excavators have waited up to several
hours before reporting damages, thereby exacerbating circumstances.
Nicor also cited instances where excavators considered damage to be
minor (coating knick or broken tracer wire) and backfilled an
excavation prior to reporting it, requiring the operator to then re-
expose the area of reported damage to make repairs. AGL Resources also
commented that in addition to excavators reporting damages to the
operator, all utility operators should be required to report damages to
provide a more complete picture of damage and prevention needs. To whom
operators should report was not addressed.
An additional comment received was that PHMSA should clarify how
``damage'' would be applied to the operator as an excavator, or
operator's contract excavator and how this might be enforced.
NUCA commented that while excavators are subject to extensive
damage reporting requirements in most state laws, the lack of state
requirements to report ``near misses'' obstructs efforts to provide
accurate data trends. NUCA considers that when underground facility
operators fail to locate and mark their lines accurately, that data
should be captured regardless of whether the facility was damaged. Even
if reporting of ``near misses'' is required by state law, NUCA believes
these requirements are rarely enforced.
Response
Reporting pipeline damages to affected pipeline operators is an
essential component of pipeline safety. To that end, PHMSA believes
that states must require that excavators report to pipeline operators
all incidents that actually result in physical damage to pipelines as a
criterion for evaluating a state's program. As noted above, states
should also consider establishing criteria for operators in turn to
report damage incidents to allow the state to determine whether an
investigation and enforcement should be undertaken. Therefore, PHMSA is
proposing, as part of the criteria for determining the adequacy of a
state's program, that each state has a reliable means for learning
about excavation damages to underground pipelines (see proposed section
198.55).
PHMSA agrees with the importance of damage reporting by all
underground facility operators. However, PHMSA does not propose to use
damage reporting by operators as a criterion for evaluating state
enforcement programs. PHMSA has the authority to require pipeline
operators to report damages, but does not have the authority to require
other utility operators to report damages. PHMSA is concerned that this
special requirement for pipeline operators would be confusing for
utility operators and cumbersome for the states.
With regard to the comment about PHMSA's treatment of pipeline
operators as excavators, PHMSA's existing regulations at 49 CFR 192.614
and 195.442 address these issues.
PHMSA is not proposing to require reporting pipeline excavation
damage near-misses at this time. While data on
[[Page 19814]]
near-misses would be valuable in guiding state excavation damage
prevention program improvements, this proposed rule pertains
specifically to excavators who actually damage PHMSA regulated
pipelines. In addition, this requirement could impose a significant
cost on excavators. However, there is nothing stopping a state from
adopting more stringent reporting requirements such as including near-
misses. PHMSA seeks comments on the potential cost impacts of requiring
reporting of pipeline excavation damage near-misses.
Item 6: ``Does state law contain a provision requiring that 911 be
called if a pipeline damage incident causes a release of hazardous
products?''
AGA and several gas pipeline operators commented that some states
may adopt statutory language that does not exactly match the Federal
legislation. For example, a state may adopt language that affords
pipeline operators some latitude so that they do not need to dial 911
if they damage their own pipeline. Since operating personnel are
already on the jobsite, AGA and the commenting companies agree that
operators should not be required to dial 911 if they cause damage to
their own pipeline that results in a release that the operators can
safely control without the aid of emergency response personnel prior to
making the necessary repair.
Paiute Pipeline and Southwest Gas Corporation also commented that
this provision should apply only if the damage may endanger life or
cause serious bodily harm or damage to property, and results in the
escape of any flammable, toxic or corrosive gas, and that all releases
of natural gas do not need to be reported by making a 911 phone call.
They noted that PHMSA should distinguish between natural gas and other
gases or liquids instead of trying to include all of these under the
umbrella of ``hazardous products.''
NAPSR commented that with regard to calling 911, the question
should be whether the excavator by law--or appropriate regulation--is
required to notify local emergency responders and/or law enforcement if
a release of product poses a danger to the public. NAPSR anticipates
that where 911 is available the excavator would most likely use it to
make that notice, but considers that it should not be necessary for
state law to specify that method if the desired end is achieved. NAPSR
noted that state laws may predate the advent of 911 emergency call
systems, and therefore would not specify that 911 must be called. NAPSR
also noted that calling 911 is generally promoted through state one-
call centers and operators' public awareness programs, and the practice
may best be achieved through best practices and not through Federal or
state regulations.
Response
The PIPES Act requires excavators to promptly call the 911
emergency telephone number if damage to a pipeline results in the
escape of any flammable, toxic, or corrosive gas or liquid that may
endanger life or cause serious bodily harm or damage to property. PHMSA
understands that excavators are often required to reimburse 911 centers
for the cost of dispatching emergency response personnel to a damage
site. Therefore, PHMSA proposes that states require excavators to call
911 in these instances, but is proposing to permit the excavator to
exercise discretion as to whether to request that the 911 operator
dispatch emergency response personnel to the damage site. However, the
911 operator will always have the discretion to dispatch emergency
response personnel.
Item 7: ``Has the responsible state agency established a reliable
mechanism to ensure that it receives reports of pipeline damage
incidents on a timely basis?''
Paiute Pipeline and Southwest Gas Corporation commented that states
that do not have interstate pipeline inspection and enforcement
authority should treat an interstate pipeline operator as an excavator,
not a pipeline operator. They consider that authority for inspection
and enforcement of interstate pipelines should remain with PHMSA and no
reporting of pipeline damage to the state is needed.
Southwest Gas Corporation commented that if PHMSA desires
individual incident report information on non-Federally reported
incidents from the states, PHMSA should recommend establishing a
reporting time period with the state agencies. Southwest Gas
Corporation noted that to eliminate any increased burden on the state
agency, PHMSA should consider specific criteria levels for those state-
only reportable incidents of which they want notification.
Paiute and Southwest Gas Corporation also commented that
notification requirements are different than reporting requirements.
They noted that state and Federal reporting requirements provide
initial notification to the respective agency within a very short time
(usually one to two hours) after discovery. The extent of product
release, service interruptions, product loss, property damage,
evacuations, injuries, fatalities, or environmental damage, which may
not be known for days, are generally included on a written report form
filed with the appropriate agency, within 30 days or less in accordance
with state or Federal requirements. They noted that for interstate
pipelines not subject to state jurisdiction, PHMSA has requirements for
reporting incidents that meet certain criteria. The requirements
include an initial notification deadline and a documented incident
report deadline.
NAPSR inquired whether PHMSA is going to require that all reports
be sent to PHMSA, or that specific reports be made available upon
request, and commented that if PHMSA wants reports of all damages, it
should simply require the operators report directly to PHMSA instead of
placing an additional burden on the states.
Response
For a state to have an effective excavation damage prevention
enforcement program, the enforcement authority must have a reliable
mechanism for learning about excavation damage incidents. The details
of how this mechanism functions, however, may vary considerably from
state-to-state. For example, some state law may require mandatory
reporting of excavation damages, while other states use complaint-based
systems of reporting damages. Because PHMSA must evaluate state
enforcement programs, PHMSA's goal is to assess how states learn of
excavation damages and how this mechanism drives enforcement decisions,
which has an effect on the adequacy of states' enforcement programs.
PHMSA will not be collecting state damage reports, but may review them
during evaluation of the state's program.
Item 8: ``Does the responsible state agency conduct investigations of
all excavation damage to pipeline incidents to determine whether the
excavator appropriately used the one-call system to request a facility
locate, whether a dig ticket was generated, how quickly the pipeline
operator responded, whether the pipeline operator followed all of its
applicable written procedures, whether the excavator waited the
appropriate time for the facilities to be located and marked, whether
the pipeline operator's markings were accurate, and whether the digging
was conducted in a responsible manner?''
NAPSR commented that the listing of anticipated review items during
an excavation damage incident investigation may be helpful during
[[Page 19815]]
investigation of an event reportable as a pipeline incident or
accident. However, it is unrealistic to expect an investigation of this
magnitude into each and every event where a pipeline is damaged. NAPSR
considers that the resources required would exceed those of entire
state pipeline safety programs, and noted that PHMSA is considering
these regulations at a time when many states are suffering financial
hardship and their pipeline safety programs are struggling to remain
afloat. Other commenters repeated this consideration.
NAPSR commented that the following listed items should be clarified
and that, to the extent that any of them are incorporated into Federal
regulations, PHMSA should clarify its intent and expectation for each
item:
[cir] ``Whether the excavator appropriately used the one-call
system to request a facility locate''--Does having a ticket number
suffice?
[cir] ``Whether the excavator appropriately used the one-call
system to request a facility locate''--Does one need to determine if
the site was pre-marked?
[cir] ``Whether the dig ticket was generated''--Does having the
ticket number suffice? [Or] Does transmission of the ticket to
operators need to be confirmed?
[cir] ``How quickly the pipeline operator responded''--Is the
question here whether the operator responded within the time frame
allowed by the law or regulation in that state? And, would this
information be relevant if the incident cause is that the facilities
were marked and excavation practices were insufficient?
[cir] ``Whether the pipeline operator followed all of its
applicable written procedures''--Would this require a field audit and
review of the operator's (employee or contract) locator on the site of
the incident?
[cir] ``Whether the excavator waited the appropriate time for the
facilities to be located and marked''--Would this require verifying
that all utilities had marked the site prior to the excavator
performing the work? [Or] Would comparing the start date on the ticket
to the incident date suffice?
[cir] ``Whether the pipeline operator's markings were accurate''--
Would this require field verification of the marks? If yes, how much
delay can be justified in an excavator's downtime while the marks are
being verified? Can the word of the operator and excavator be taken as
fact? Can an emergency locate be performed and excavation activities
resumed before arrival of a government inspector on site?
[cir] ``Whether the digging was conducted in a responsible
manner''--Would this require a field investigation including interviews
with the foreman, operator and laborers? Can the results of the
investigation by the operator be considered as fact? If it is
ascertained that best practices were not followed, would this
constitute a ``violation''? What are the essential elements of an
``investigation''?
NAPSR also commented that all DOT-reportable excavation damage
incidents should be investigated. However, it noted that there are many
thousands of DOT non-reportable incidents each year that involve
superficial damage and no escaping gas. NAPSR considers that a one-
size-fits-all investigation approach is not practical, and that the
extent of investigation of non-reportable incidents should be on a
state-by-state basis, left to the discretion of the responsible state
agency. The state should be allowed to adopt a basis for investigation,
such as establishing thresholds, or perform periodic sampling coupled
with enforcement proceedings on the incidents sampled, so a deterrent
effect is achieved.
NAPSR further commented that it may be possible that the PHMSA
Office of Pipeline Safety Failure Investigation Policy document will
play a role in connection with this aspect of the proposed rulemaking.
NAPSR, therefore, suggested that this policy be considered along with
other factors before formalizing a notice of proposed rulemaking.
AGA commented that the evaluation process should recognize those
states that have adopted some basis for investigation. The basis could
be event significance or it could investigate some subset of the
damages, such as state reportable incidents. AGA noted that it is not
feasible for a state agency to conduct a formal investigation for every
occurrence of excavation damage to pipelines in a state. AGA also
commented that most importantly, the state should have a mechanism that
enables all stakeholders to express formal concerns and complaints with
non-compliant parties, citing, for instance, that excavators should
have a process to file complaints against utilities that fail to mark
their facilities accurately or on time. Additionally, pipeline
operators should have a process to file complaints or seek injunctions
against excavators who either fail to notify the one-call center, fail
to respect the markings or fail to wait the required time before
beginning excavation activity.
APGA commented that this consideration should apply only to
reportable incidents as defined in 49 CFR Part 191 because it would not
be reasonable to expect operators and/or state agencies to investigate
and report in this detail on all excavation damage events. APGA noted
that some lesser level of reporting may be considered for events that
do not meet the reportable incident criteria. Nicor suggested that
states should have a process for determining which reported excavation
damages will be investigated. APGA also noted that under the
Distribution Integrity Management Programs (DIMP) rule, operators will
annually report the number of excavation damages to PHMSA, and that
these reports could also be made available to states.
Southwest Gas Corporation commented that if PHMSA means only
reportable incidents (as defined by each state) that result from
excavation damage, then determining the effectiveness of the state
excavation damage prevention program should include a review of all
excavation damage, not just excavation damage to pipelines, and include
analysis of any trends and areas for improvement.
NUCA commented that states must ensure that those conducting damage
investigations look at the entire excavation damage prevention process,
from the excavator notifying the one-call center to the facility
operator providing accurate and timely markings, to safe excavation and
backfill practices by the excavator. NUCA believes that the ANPRM
adequately addressed the factors needed to be investigated, but that
several state authorities fail to fulfill their investigative
responsibilities in all areas of excavation damage prevention,
especially with regard to locating and marking of facilities.
Response
PHMSA's primary interest with regard to pipeline damage
investigations is to ensure that state enforcement is fair and balanced
and is targeted to the at-fault party in an excavation damage incident.
PHMSA recognizes that states have resource issues to contend with and
need the ability to focus investigatory resources on significant
incidents as opposed to minor incidents. PHMSA intends to address this
consideration in determining the adequacy of enforcement programs by
reviewing state enforcement records and the adequacy of the
investigations that preceded enforcement actions. In addition, PHMSA
intends to assess states' incident investigation practices to ensure
their adequacy in determining the at-fault party in an excavation
damage incident involving a pipeline subject to PHMSA pipeline safety
[[Page 19816]]
regulations. PHMSA does not intend to use PHMSA's Failure Investigation
Policy as a model for assessing the adequacy of state damage incident
investigation practices.
Item 9: ``Does the state's damage prevention law provide enforcement
authority including the use of civil penalties, and are the maximum
penalties similar to the federal maximums (see 49 U.S.C. 60122(a))?''
With regard to the amount of the civil penalty, PUCO noted that the
ANPRM does not indicate how large state maximum civil penalties would
have to be in order to be considered ``similar'' to Federal maximums or
the appropriateness of Federal maximum penalties against non-gas
pipeline excavators. NAPSR commented that for pipeline operators some
states' fines are equal to the Federal maximums, but that for
excavators, fines may vary from small amounts per violation and
gradually increase, depending on the circumstances, with no maximum.
NAPSR noted that in practice, some states have found that an
administrative process with modest fines (i.e., large enough to have a
financial impact on the offender) works well. The larger the fine, the
harder it is to collect and the collection process tends to consume a
lot of the state agency's resources. NAPSR also commented that in state
legislatures, the authorized amount of a civil penalty can be a serious
issue. Legislatures may be reluctant to approve penalties so high that
small companies could be put out of business, noting that although the
assessed penalty does not have to be the maximum, the possibility
remains a concern. NAPSR notes that the penalties incorporated in state
laws may be the product of laborious and protracted negotiations--and
the penalties provided for in 49 U.S.C. 60122 are quite high by many
state standards. NAPSR notes that there is no evidence that state
penalties must be comparable to Federal penalties for state enforcement
to be effective, and that if such a comparison must be a consideration
it should be a minor one.
MidAmerican Energy commented that the amount of the maximum civil
penalty that may be assessed may not be the critical factor in
evaluating a state's enforcement program. Instead, the aggressiveness
and consistency by which a state investigates and enforces the
excavation damage prevention laws may be a more effective gauge.
Michigan Consolidated Gas noted that consideration should be made
regarding a state's funding and resources to administer its enforcement
program, i.e., does the state have the manpower to investigate, hold
hearings, document findings, etc., for every violation found or
complaint filed especially if this includes non-regulated or non-
pipeline entities?
The PST commented that if PHMSA is going to ascertain whether the
amounts of civil penalties assessed reflect the seriousness of the
incident, then PHMSA must develop a set of guidelines that sets out
each type of offense and the range of penalties that PHMSA deems
appropriate. PST noted that this will also help to provide clarity
regarding the question in the ANPRM about whether a state program's
civil penalties ``are the maximum penalties similar to the Federal
maximums.''
The several Texas pipeline associations commented that a
substantial portion of state grant monies should be tied to enforcement
and collection of substantial civil penalties for failure to comply
with a state one-call law that is found to be adequate. They also
suggested that penalties related to excavation damage prevention being
collected by states should be dedicated to pipeline safety, and not
just the general revenue fund.
Spectra Energy Transmission commented that PHMSA's criteria should
consider a state's historical enforcement action against excavators
that fail to place one-call tickets prior to excavating or fail to
adhere to the mandatory waiting period following one-call notification.
Spectra also commented that states should take enforcement action
against intrastate pipeline or distribution system operators that fail
to respond to one-call tickets or fail to properly locate or mark their
facilities. They noted that penalties should escalate for repeated
violations and that the existence of repeat violations may signal a
weakness of deterrents and need for PHMSA action.
Response
While state civil penalty levels must be high enough to deter
violations, PHMSA recognizes that states will often be conducting
enforcement against smaller entities. Therefore, penalty levels lower
than the Federal levels may be sufficient to achieve deterrence.
Accordingly, PHMSA does not propose to require states to assess civil
penalties at a level equal to Federal civil penalties. PHMSA's primary
interest with regard to state civil penalties is that (1) civil penalty
authority exists within the state, and (2) civil penalty authority is
used by the state consistently enough to deter violation of state
excavation damage prevention laws. PHMSA seeks comments on this issue.
PHMSA does not intend to address impacts to pipeline safety grant
funding levels for states with excavation damage law enforcement
programs PHMSA deems adequate.
Item 10: ``Has the state designated a state agency with responsibility
for administering the damage prevention laws?''
Marathon Pipeline commented that a state agency should be
responsible for receiving and investigating reports of pipeline damage
and near miss incidents caused by excavation. Paiute Pipeline agrees
that the agency responsible for administering the excavation damage
prevention laws should be designated in states where excavation damage
prevention laws exist. Echoing this comment, the Texas pipeline
associations commented that the first criterion for a state should be a
single state agency designated to oversee the state's underground
excavation damage prevention program. They noted that a state agency
must not only be designated as the agency responsible for the program,
but must also have the authority to enforce the safety standards to
protect underground facility operators, excavators, and the public.
Going further, AGA and AGL Resources commented that effective
excavation damage prevention requires more than merely designating a
state agency with responsibility for administering the excavation
damage prevention laws. They noted that although many states have
agencies that have been delegated authority for administering the
excavation damage prevention laws, often the state agency has not been
given either the personnel, financial resources, or the incentives
needed to exercise its authority. The three Texas pipeline associations
commented that the adequacy of funding should be documented and
reported by the states through several basic data elements. Such
elements could include items like ratio of reported damages to calls,
numbers of damages reported per mile and number of enforcement actions
completed. There may be better measures of enforcement effectiveness,
but whatever is used must demonstrate that enforcement is occurring.
AGL Resources also commented that a state should establish,
designate and utilize an ``advisory type'' committee made up of the
various stakeholders as the responsible state agency.
Response
PHMSA's primary interest in this area is assessing whether a state
has a
[[Page 19817]]
designated excavation damage prevention law enforcement authority to
act as the lead in law enforcement cases. That authority needs to
establish a close working relationship with the state pipeline
investigators and develop a familiarity with the state's pipeline
safety and damage prevention laws and requirements. Once that authority
begins to take enforcement action consistently, PHMSA will be
interested to learn whether the state enforcement authority has
adequate resources to perform its mission. In addition, PHMSA's
periodic review of states' damage prevention enforcement records
performed under the state certification process will provide PHMSA with
information on the adequacy of enforcement resources.
Committees comprised of representatives of all excavation damage
prevention stakeholders that advise enforcement agencies may help to
ensure fair and balanced excavation damage prevention law enforcement.
However, PHMSA does not believe that advisory committees should have a
``veto'' on enforcement decisions made by responsible officials and
PHMSA also believes that advisory committees are not the only effective
means of ensuring fair and balanced enforcement. PHMSA, therefore, does
not propose to use as a criterion whether states utilize advisory
committees in assessing the adequacy of states' enforcement programs.
Item 11: ``Does the state official responsible for determining whether
or not to proceed with enforcement action document the reasons for the
decision in a transparent and accountable manner? Are the records of
these investigations and enforcement decisions made available to
PHMSA?''
NAPSR commented that in some jurisdictions this would be privileged
information not subject to disclosure. It also noted that a decision on
whether to take formal enforcement action is a decision on whether to
prosecute; thus, the concept of ``prosecutorial discretion'' may apply.
NAPSR also inquired about what kind of documentation would be expected.
Paiute Pipeline and Southwest Gas Corporation commented that
transparency and consistency are important to an effective enforcement
program. They consider that states should be responsible for
documenting and recording investigations, decisions, and enforcement
actions taken or not taken to ensure consistency in decisions and
enforcement actions with all excavators. They also commented that PHMSA
should consider if instead of being informed of every investigation and
enforcement decision of every state, it would be more effective for
PHMSA to recommend specific criteria levels for being informed of
investigations and enforcement decisions.
Response
PHMSA will be reviewing state enforcement records to help assess
whether states that have enforcement authority are actually using their
authority and how they are using their authority. PHMSA believes that
states should be able to explain the reasons behind their decisions as
to whether or not to take enforcement action, but is not necessarily
seeking access to privileged and confidential information.
Item 12: ``With respect to cases where enforcement action is taken, is
the state actually exercising its civil penalty authority? Does the
amount of the civil penalties assessed reflect the seriousness of the
incident? Are remedial orders given to the violator legally
enforceable?''
AGA, API and AOPL supported the focus on utilization of civil
penalties to enforce excavation damage prevention laws. API and AOPL
supported PHMSA's proposed threshold criteria to determine whether a
state has established and exercised authority to assess civil penalties
for violation of one-call laws. They noted that most of the other
criteria listed in the ANPRM derive from these criteria and demonstrate
that laws are in place and being enforced.
AGA and others, including several pipeline operators, commented
that fines and penalties should be significant enough to affect
behaviors, yet they should not be so high that they give excavators
incentive to be deceitful or fearful of reporting damages due to the
potential repercussions. They consider that fines and penalties should
escalate for repeat and willful violators, particularly those who have
a history of being counseled on the importance of adhering to all safe
digging laws and practices. They also commented that the maximum fine
or penalty for any Federal administrative enforcement actions taken
within state jurisdiction should be no more than the maximum amount
cited in the state law, even if that state's enforcement has been
deemed inadequate. They commented that maximum penalties in 49 U.S.C.
60122(a) should not be used for excavation damage prevention law
enforcement as they are excessive for excavation damage prevention
programs and can have adverse unintended consequences.
Nicor commented that the state's one-call statute should set forth
aggravating or mitigating factors in determining the civil penalty.
They also commented that when considering a history of noncompliance,
excavator violations should not aggravate the penalty calculation for
locating and marking violations, and vice versa, and that penalty
assessments should be transparent to all excavators.
Paiute Pipeline and Southwest Gas Corporation commented that
PHMSA's evaluation of a state's enforcement program should consider
whether the state has the ability to exercise its authority to assess
civil penalties and whether it is fair and consistent in doing so. They
also noted that not all damage incidents warrant financial penalties,
and PHMSA should not limit its review to only penalties of a financial
nature. They acknowledged that civil penalties are part of an effective
excavation damage prevention program; however, they commented that in
some states excavation damage prevention training has been effectively
mandated in lieu of civil penalties.
Response
PHMSA's primary interests with regard to state civil penalties for
violations of excavation damage prevention law are that: (1) Civil
penalty authority exists within the state, and 2) the state uses civil
penalty authority to deter violation of state excavation damage
prevention laws. PHMSA proposes to assess these two factors through a
review of state law/regulation and records of past enforcement actions.
PHMSA does not intend to hold states to an overly-prescriptive
construct of civil penalty authority or to an overly-prescriptive civil
penalty fee schedule. Sanctions other than civil penalties may have the
desired effect of deterring non-compliant behavior. State excavation
damage prevention enforcement records should be made available to the
public to the extent practicable. PHMSA seeks comment on these issues.
Item 13: ``Are annual statistics on the number of excavation damage
incidents, investigations, enforcement actions, penalties proposed, and
penalties collected by the state made available to PHMSA and the
public?''
AGA agreed that statistics are useful to understand trends and
areas deserving attention, that past enforcement actions are one
barometer of the enforcement activity in the state, and that past
reports of enforcement against excavators should be reviewed for the
type of excavator that is being fined or penalized. AGA also
[[Page 19818]]
commented that other items should be considered to determine whether or
not enforcement has been active and effective, but noted that many
states only collect data on excavation damages involving natural gas
pipelines. AGA commented that each state should be expected to
establish some clear, minimum reporting guidelines for the state
enforcement agency, but that PHMSA should not expect the various state
reporting guidelines to be uniform.
NAPSR commented that although annual statistics are important,
PHMSA should not place much emphasis on comparing the states against
each other on the basis of these parameters. It noted that there is
bound to be significant variability between the states due to factors
including, but not limited to, the volume of excavation activity in the
state, the density of the underground infrastructure, the number of
one-call centers, the resources available to the entity in charge of
enforcement, and the political climate in the state with respect to the
prevailing preference as to what the excavation damage prevention law
should cover.
Paiute Pipeline and Southwest Gas Corporation commented that having
data available to the public is not the standard for which a state's
program should be judged. They consider that damage incident
investigations, enforcement actions, and penalties proposed or
collected should not be provided to the general public without
providing a clear and concise description of the information, as most
of the general public has limited knowledge of, or experience with, the
information that would be provided.
Nicor commented that statistics collected should include damages by
all excavators and on all facilities, not just pipelines. Paiute and
Southwest Gas Corporation noted that data from the CGA DIRT could be
used for analyzing excavation damages; however, providing damage
information to DIRT is not mandated in all states.
NUCA commented that timely gathering of damage data is important,
as is the type of information collected. However, NUCA considers that
damages incurred by the excavator should be collected as well. This
should include costs to the excavator in cases where a facility is hit
because of a failure to locate and mark facilities accurately in a
timely fashion, including any damage to the excavator's equipment or
property, and any downtime incurred by the excavator while the true
location of underground facilities is determined.
Washington Transportation Builders Association commented that its
industry is concerned that contractors will be singled out for
incidents that were caused by others, such as mismarked utilities and
failure to address utilities during the design process, and that PHMSA
should determine what are appropriate ``annual stats on damage
incidents'' to report to the public.
API and AOPL commented that the reporting requirements suggested as
a basis for evaluation could have the effect of requiring duplicate (or
even triplicate) reporting for pipeline operators and/or other
regulated entities. They noted that given that recently proposed
revisions to PHMSA's own accident and incident reports (7000.1 and
7000.2) would collect, and CGA's DIRT report already collects,
significant information about excavation damage incidents, PHMSA should
consider changing the reporting requirements by which a state program
is judged to allow for the use of the CGA or PHMSA data. Similarly, the
WUCA commented that state agencies and PHMSA should explore means to
share reported information electronically rather than imposing
additional reporting requirements.
The Michigan Public Service Commission (PSC) commented that
reportable information should include the nature of the incident, the
cause of the incident, the extent of service interruptions, property
damage, evacuations, injuries and fatalities, and that product loss
would be factored into the total dollar amount of the incident.
Response
Variability among the states makes it difficult to seek
standardized information pertaining to excavation damage incidents,
investigations, enforcement actions, penalties proposed, and penalties
collected. Variability also makes it difficult to compare state
enforcement programs. PHMSA does, however, propose under criterion 3
that availability of this type of information to the general public be
a factor in evaluating state enforcement programs because public
understanding and involvement of state enforcement can help to drive
more effective enforcement.
Additional Comments Related to Section IV.A
Commenters were also invited to comment on additions and
alternatives to the items listed in the ANPRM, as noted above, that may
be equally suitable for the purpose of evaluating the adequacy of state
excavation damage prevention law enforcement programs.
Clarification
PST and several other commenters noted that state excavation damage
prevention programs apply to many utilities besides pipelines, and that
it is unclear from the ANPRM whether a state's entire excavation damage
prevention program, including other utilities such as waterlines,
sewer, electric, etc., will be judged or whether PHMSA will only review
how excavation damage prevention is working for pipelines. PST
commented that it is also unclear whether PHMSA intends to expand its
authority to include damage to utilities other than pipelines, and if
not, what effect PHMSA's selective enforcement of only the part of the
program regarding pipelines will have on a state's more comprehensive
excavation damage prevention program. Will states be driven to create
two separate excavation damage prevention programs? What would be the
unintended consequences of not regulating utilities other than
pipelines? Similarly, the TRA commented that the proposed rule should
distinguish between enforcing one-call laws and pipeline facility
excavation damage prevention. TRA noted that one-call laws in many
states cover many different types of utilities, and that it appears
that a state may meet the requirements stated in the PIPES Act by
enforcing pipeline facility excavation damage prevention without
exercising the same level of authority over other underground
utilities, such as water, sewer, telecommunications and electricity.
PST also commented that it concurs with the general criteria set
out in the ANPRM for determining whether a state's enforcement program
is adequate, and the use of the nine elements from the PIPES Act as a
foundation for excavation damage prevention law enforcement programs.
However, it noted that PHMSA also needs to consider and clarify:
1. Whether each criterion is of equal importance or if a relative
weight should be assigned to each;
2. Whether the failure of a state to meet a single criterion
results in the state's damage prevention program being inadequate; and,
3. Whether the failure to meet certain ``core'' criteria or attain
a ``passing'' score (based on relative weights of each criterion) will
trigger an ``inadequacy'' determination.
Response
PHMSA proposes to review the adequacy of states' excavation damage
prevention law enforcement programs.
[[Page 19819]]
However, PHMSA's regulatory authority extends only to pipelines subject
to PHMSA's pipeline safety regulations. PHMSA does not have the
authority to enforce Federal excavation damage prevention standards in
cases of damage to underground utilities other than pipelines. Despite
PHMSA's limited regulatory authority, PHMSA believes that if states
implement effective enforcement programs that are driven by the goal of
preventing excavation damage to pipelines, other utilities and
excavation damage prevention stakeholders will benefit. PHMSA does not
intend for states to develop separate excavation damage prevention
programs for pipelines and other utilities.
PHMSA proposes in this notice to use seven criteria to evaluate
state enforcement programs. PHMSA, however, will not take a one-size-
fits-all approach. Because of the wide variability among state
enforcement programs, PHMSA believes these reviews must take into
account the experiences of each state and limit comparison between
state programs.
PHMSA's primary goal in evaluating the adequacy of state excavation
damage prevention law enforcement programs is to seek clear evidence
that:
State laws/regulations are adequate to protect underground
infrastructure from excavation damage;
The state has a designated authority responsible for
enforcement of the excavation damage prevention law;
The enforcement authority has a reliable means of learning
about excavation damage incidents and possible violations of state
excavation damage prevention law; and,
Enforcement authority is exercised effectively, including
the use of civil penalties, to ensure compliance with state excavation
damage prevention law.
There are multiple ways a state can meet the more subjective
criteria. Reviews of state enforcement programs would entail detailed
conversations with excavation damage prevention stakeholders at the
state level and must allow for some flexibility to permit a thorough
and accurate review of state enforcement programs.
PHMSA strongly believes that excavation damage prevention law
enforcement is a state responsibility. Overly prescriptive Federal
criteria for the review of state enforcement programs would be counter
to this principle. This rulemaking is intended to provide limited,
backstop Federal administrative enforcement authority regarding
excavation damage to pipelines in states PHMSA finds to have inadequate
enforcement programs and to encourage those states to enhance their
existing excavation damage prevention programs or to implement programs
to include effective enforcement through the use of civil penalties.
Criteria for Review of SDP Enforcement Programs
AGC of Texas recommended that when evaluating the adequacy of a
state's excavation damage prevention program, PHMSA should include
criteria for a mandatory positive response system, which requires
operator and excavator participation, enforceable with penalties.
The WUCA commented that state excavation damage prevention law
enforcement processes should include an appeals process that includes
an appeals board with members who have adequate knowledge of design and
construction administration processes, allowing them to assign
responsibility to the appropriate party. They commented that failure to
assign responsibility to the appropriate parties, such as operators,
one-call centers, locators and design engineers, creates uncontrollable
risk for contractors.
API and AOPL commented that PHMSA should establish clear guidelines
and criteria for determining which state excavation damage prevention
programs are effective and effectively enforced, and noted that these
criteria should be based on transparent data, where available, but
should not impose additional data collection on the states. AGA noted
that the most important criteria are the ones involving timely
reporting of pipeline damages, a universal requirement for all parties
to notify the one-call center prior to excavation, establishment of a
single agency responsible for oversight of excavation damage prevention
laws, and an effective enforcement process. AGA also commented that the
criteria regarding the evaluation of state programs, as listed in the
ANPRM, appears thorough, but acknowledged that how the criteria are
weighted and actually evaluated is open to several different
approaches.
Several commenters expressed support for the need and intent of the
proposed rulemaking, the development of criteria by which to evaluate
state excavation damage prevention programs, and Federal administrative
enforcement, if needed, when state enforcement is deemed inadequate.
EPPG commented that a ``standard model'' for enforcement of excavation
safety is needed to ensure existing state programs are not audited
against unsettled standards. However, EPPG commented that Federal
administrative enforcement intervention should not occur prior to a
state being audited and provided an opportunity to improve on any
deficiencies.
NAPSR expressed the view that most of the items listed in the ANPRM
are subjective and that additional examination of the assessment
factors may be required to further eliminate some of the subjectivity.
Alternatively, they suggested there may be need to develop some non-
mandatory guidance to provide added detail.
PST commented that if PHMSA decides to create a situation where a
state can be found to have a program that is ``nominally adequate,''
PHMSA needs to define clearly what this means and how a state can
achieve an ``adequate'' status. PST's preference would be for PHMSA to
clearly communicate possible areas where improvements could be made in
a state's program rather than to create a hard to define status of
``nominally adequate.'' They encouraged PHMSA to create criteria that
are clear enough that a state's program is either adequate or
inadequate.
Spectra Energy commented that PHMSA criteria should weigh whether
state excavation damage prevention laws include requirements for
excavators to notify the state and the pipeline operator if they damage
a pipeline during excavation and whether enforcement procedures exist
for instances of non-compliance.
TRA commented that the threshold criterion for evaluating the
adequacy of a state's excavation damage prevention program should
include the lack of exemptions to the state's excavation damage
prevention laws, such as exemptions for state agencies, municipalities,
agricultural entities, railroads, and other groups of excavators. TRA
cautioned, however, that it, and likely other state regulatory
agencies, does not have authority to make changes to the state pipeline
excavation damage prevention law. To minimize exemptions, much effort
and time must be expended to reach consensus regarding the entities to
be exempted and to determine the extent of an exemption. While TRA
agrees with the threshold criteria noted in the ANPRM, TRA asserted
that as part of the evaluation to determine the adequacy of a state's
enforcement of its pipeline excavation damage prevention law, the
state's record of progress in strengthening its law should be
considered. Every effort should be made to allow a state to continue
working with stakeholders to improve pipeline excavation damage
prevention laws without Federal intervention.
[[Page 19820]]
AGA commented that PHMSA should build flexibility into how it
applies the performance criteria for the 13 criteria listed in the
ANPRM. AGA noted that several of the items listed do not lend
themselves to a simple rating or score, or even a definitive `yes' or
`no' evaluation. For example, a state may require all parties to call
before they dig, but it may give certain exemptions when the type of
excavation involves the use of hand tools, noting that CGA's 2008 DIRT
report indicates that 22 states fall into this category. AGA wondered
how this type of scenario would affect a state's evaluation.
Response
PHMSA does not propose to include a criterion for a mandatory
positive response system that requires operator and excavator
participation. PHMSA believes this criterion is outside the scope of
this rulemaking.
Effective excavation damage prevention enforcement programs require
adequate processes for identifying the at-fault party in damage
incidents to enable action to be taken against the at-fault party in
any enforcement case. PHMSA does not consider this proposed rule to
unfairly target excavators for enforcement action, but instead to
address an enforcement gap in pipeline safety excavation damage
prevention.
PHMSA does not propose to make a distinction between ``nominally
adequate'' and ``adequate'' state enforcement programs. The proposed
criteria for evaluating state enforcement programs are designed to
establish the threshold for minimum adequacy of state enforcement
programs. PHMSA intends to deem state enforcement programs either
adequate or inadequate through use of the review criteria and processes
outlined in this NPRM. PHMSA does not propose to use weighted criteria
in the evaluation.
B. Administrative Process
Section IV.B of the ANPRM sought comment on the administrative
procedures available to a state that elects to contest a notice of
inadequacy, should it receive one. It noted that the procedures would
likely involve a ``paper hearing'' process where PHMSA would notify a
state that it considers its excavation damage prevention law
enforcement inadequate (i.e., following its annual review), and the
state would then have an opportunity to submit written materials and
explanations. PHMSA would then make a final written determination
including the reasons for the decision. The administrative procedures
would also likely provide for an opportunity for the state to petition
for reconsideration of the decision, and would likely allow the state
to show later that it has improved its excavation damage prevention law
enforcement program to an adequate level and request that PHMSA
discontinue Federal administrative enforcement in that state.
The ANPRM asked for comments regarding whether the described
process would strike the right balance between the Congressional
directive to PHMSA to undertake Federal administrative enforcement,
where necessary, while providing a state with a fair and efficient
means of showing that the state's enforcement program is adequate.
Section IV.B suggested that PHMSA would likely evaluate state
excavation damage prevention enforcement programs on an annual basis,
considering factors such as those set forth in Section IV.A. It noted
that this annual review would likely include a review of all of the
enforcement actions taken by the state over the previous year.
Section IV.B noted that if the state's enforcement program is
ultimately deemed inadequate in its most recent annual review, direct
Federal administrative enforcement against an excavator who violated
Federal requirements and damaged a pipeline in that state could proceed
without further process.
The ANPRM also asked if the process should enable PHMSA to evaluate
a state enforcement decision concerning an individual incident during
the course of the year and potentially conduct Federal administrative
enforcement where a state deemed ``nominally adequate'' in its most
recent annual review decided not to undertake enforcement for an
incident that PHMSA believes may warrant enforcement action.
Process for Determining the Adequacy of State Enforcement
PUCO commented that the administrative due process for determining
whether a state program is ``inadequate,'' as stated in the ANPRM, is
very general and appears to be an informal process. PUCO noted that it
is unclear whether the determination that a state program is
``inadequate'' is to be made by the head of PHMSA, PHMSA regional
managers, a board or panel at PHMSA, or some other entity altogether.
The WUCA commented that PHMSA should provide information and
guidance that will clearly outline what the state must do to create an
acceptable damage enforcement program by PHMSA's standards.
The Greater Chicago Damage Prevention Council commented that it
endorses the development and implementation of best practices to
prevent damage to pipelines and other underground facilities, but that
it opposes enactment of the proposed rule. Its opposition is based on
the following regarding Section IV, Paragraph B--Administrative
Process: The proposed rule: (a) Fails to use imperative language and
speaks in generalities, such as, what ``the process would likely
involve;'' (b) is devoid of elements mandating PHMSA provide those
states deemed ``inadequate'' or ``nominally adequate'' with detailed
evaluation results that support PHMSA's determination; (c) fails to
provide adequate due process in the appeal of PHMSA's determination; in
fact, there is no appeal process identified relative to PHMSA's
``final'' determination, other than to try again next year; (d) offers
the state no opportunity whatsoever to undertake corrective action or
improvement prior to PHMSA undertaking enforcement actions; and (e)
fails to ``strike the right balance between the Congressional directive
to PHMSA to undertake Federal administrative enforcement where
necessary while providing a state with a fair and efficient means of
showing that the state's enforcement program is adequate.'' The Council
also noted that the proposed rule fails to meet ``Element 7,''
stipulated in the Rule as mandatory for a ``comprehensive damage
prevention program.'' The commenter noted that the proposed rule is
limited to PHMSA regulated pipelines and excludes all other underground
facilities. It considers that by undertaking enforcement actions
relating only to pipelines, PHMSA creates a de facto dual enforcement
system, which in itself is a key criterion in determining whether an
enforcement program is adequate. Therefore, the proposed rule
establishes an ``inadequate enforcement program'' and should not be
implemented.
Response
This NPRM proposes a clearly-defined process for determining the
adequacy of state enforcement programs. PHMSA is authorized by Congress
through the PIPES Act of 2006 to pursue this rulemaking. The ANPRM was
designed to solicit input from interested stakeholders on how to
construct the proposed rule. To the extent the ANPRM used the term
``likely'' in discussing a given approach, it only means that PHMSA has
not made any final decisions on anything at the ANPRM or NPRM stage.
Once the final
[[Page 19821]]
rule is published, the word likely will not appear in the text of any
final requirement.
PHMSA agrees that specific reasoning should be provided for any
declaration of state excavation damage law enforcement program
inadequacy. In addition, PHMSA would evaluate states' progress on a
yearly basis to assess adequacy. PHMSA proposes to make public the
results of the reviews of state excavation damage prevention law
enforcement programs. As noted above, comparisons of states are not
practical given the wide variety seen in state enforcement programs.
Findings
Missouri PSC commented that a state's enforcement program should
either be deemed adequate or not adequate; a process that would set
``levels'' of adequacy would simply be more subjective. Similarly, API
and AOPL noted that a state either has an adequate program or it
doesn't, and that the state should not be held in ``limbo'' and should
not constantly be second-guessed. They agree that if a state program is
deemed deficient then PHMSA should work with the state to make it
better.
The WUCA commented that if a written statement is provided to the
state notifying it of an inadequate excavation damage prevention law
enforcement program, specific reasoning must be provided for the
ruling. Additionally, rather than a ``likely'' opportunity to provide a
showing at a later time, if deemed inadequate, a clear policy should be
developed.
AGC commented that the administrative procedures should include
public notice of PHMSA's determination of inadequacy in the Federal
Register with a detailed explanation of the circumstances justifying
PHMSA's determination.
Paiute Pipeline and Southwest Gas Corporation commented that PHMSA
should not pursue a comparison of one state to another, but should only
evaluate individual states through review of their excavation damage
prevention programs, including state laws and enforcement authority.
Response
PHMSA is proposing to have state excavation damage prevention law
enforcement programs be deemed either adequate or inadequate; PHMSA is
not proposing to establish levels of adequacy. PHMSA intends to
continue its SDP grant program, one-call grant program, and various
other initiatives designed to assist states with improving their
excavation damage prevention programs. These initiatives were described
in more detail in the ANPRM.
Federal Administrative Enforcement
Regarding the precept in the ANPRM, ``If the state's enforcement
program is ultimately deemed inadequate, direct Federal administrative
enforcement against an excavator who violated the state's damage
prevention law and damaged a pipeline in that state could proceed,''
AGA commented:
PHMSA should also consider what will trigger Federal
administrative enforcement action. Is damage the only trigger or is
there a potential for enforcement action due to repeated complaints
from operators of reckless excavation activities? (e.g., no
notification to 811; failure to hand-expose pipeline; etc.)
The process should not allow PHMSA to evaluate a state
enforcement decision that has already been made.
Only states determined to have an inadequate program
should have the possibility of PHMSA intervention.
Like AGA, APGA, AGC, others commented that PHMSA should not
evaluate a state's enforcement decision concerning an individual damage
incident in a state where PHMSA has found the enforcement program to be
adequate or nominally adequate. Instead, APGA suggested PHMSA should
consider whether certain high profile events received adequate
enforcement action by the state in the course of its periodic review of
the state's overall enforcement program.
NAPSR strongly suggested that only the states with inadequate
programs be subject to PHMSA examination of enforcement decisions made
at the state level, and only after PHMSA determines the principal
factor of the state's inadequacy has been repeated failure to enforce
the law against clear cases of egregious violations. Similarly, Nicor
stated that if a state is deemed nominally adequate, the state's
enforcement decision concerning an individual event should be upheld,
but PHMSA should provide guidance to that state so that it improves its
program for the next review. EPPG noted that if PHMSA took action in a
state that had passed the most recent assessment of its enforcement
program, it would undermine the purpose of the assessment itself.
EPPG commented that PHMSA should define how enforcement
responsibility between PHMSA and the state would be implemented. EPPG
noted that as important as it is to identify and intercede in states
found to have inadequate one-call enforcement, it is also important to
clarify how enforcement responsibility should be conducted elsewhere.
Excavators should not be exposed to multiple, divergent and possibly
conflicting enforcement authorities and standards, and the standards
and procedures should clearly define which agency will have
jurisdiction.
NUCA commented to reemphasize the importance of balanced
enforcement in that Federal administrative enforcement against an
excavator who violated the state's excavation damage prevention law
should be coupled with Federal administrative enforcement against
pipeline operators who fail to locate and mark their pipelines
accurately in accordance with the law.
API and AOPL commented that they question the efficacy of direct
Federal administrative enforcement against an excavator who violates a
state's excavation damage prevention law and damages a pipeline. They
noted that state one-call laws vary with respect to elements such as
notification time, ticket life, tolerance zone, and white lining.
Without a Federal minimum standard to support Federal administrative
enforcement, they do not believe it is appropriate or practical for
PHMSA to enforce state laws evenly or consistently.
AGC noted that the goal of enforcement should be to fairly arrive
at rational outcomes, such as education and penalties that correspond
to the gravity of the violation, without imposing unnecessarily high
transaction costs on any participant, including the enforcement
authority.
PST offered comments/questions regarding consequences to states
that choose to be inadequate. PST noted that ``PHMSA should clearly
define in the NPRM what the consequences are for a state that is found
to have an ``inadequate'' or ``nominally adequate'' excavation damage
prevention program. Will excavation damage prevention grants/monies be
the only thing affected or will other state funding and authority be
penalized as well?'' Additionally, PST noted ``While we agree with
PHMSA and Congress that states have a responsibility to ensure a system
is in place to protect underground pipelines, what are the consequences
if a state chooses to ignore that responsibility in hopes that PHMSA
will take it on? Will the financial consequences or loss of authority
be greater than the possible short-term financial benefits to a state
faced with a budget crisis? Is PHMSA staffed and funded adequately to
take on such a greater enforcement role?''
[[Page 19822]]
Response
PHMSA intends to evaluate the existence and adequacy of state
excavation damage prevention law enforcement programs. PHMSA is
proposing that this will be done, in part, by reviewing state
enforcement records to ascertain whether a state is effectively
applying its enforcement authority, assuming such authority is provided
for in state excavation damage prevention law. PHMSA proposes to
evaluate states' pipeline damage investigation practices to ensure they
are adequate to determine the at-fault party for excavation damage
incidents. As noted, excavators will be subject to Federal
administrative enforcement only in states determined to have inadequate
enforcement programs, and PHMSA is proposing to make decisions
regarding Federal administrative enforcement in those states on a case-
by-case basis.
Balanced enforcement of excavation damage prevention laws is
important. As appropriate, PHMSA is proposing to enforce either this
rule (once it is final) against excavators or existing regulations
applicable to pipeline operators and their contractors against the at-
fault party. PHMSA has enforced existing excavation damage prevention
regulations applicable to pipeline operators. PHMSA believes that
enforcement of existing excavation damage prevention regulations
applicable to pipeline operators, at both state and Federal levels, is
a deterrent to non-compliant behavior and reduces excavation damage to
pipelines.
PHMSA does not have authority to enforce state laws and has
included the proposed Federal requirements for excavators in this
proposed rulemaking.
PHMSA proposes to consider state enforcement program adequacy to be
a factor in determining state pipeline safety grant funding levels
(after a lengthy grace period). PHMSA believes this approach will
provide a financial disincentive for states to disregard their
enforcement responsibility. PHMSA is seeking comment on this
conclusion.
Appeals
Several commenters, including API, AOPL, PUCO, and Michigan
Consolidated Gas, commented that states should be provided
opportunities to respond to and appeal PHMSA's decisions on the
adequacy of a state enforcement program. PUCO noted that procedures for
determining the adequacy of a state's program and the process for
appeals for reconsideration should be more fully described, and include
a requirement for PHMSA to review and respond to any petition for
reconsideration within a certain time frame. API, AOPL, Nicor, and
Panhandle Energy support the development of administrative procedures
that would be available for states that elect to contest a notice of
inadequacy. Nicor noted that this would afford the state a fair and
efficient means of showing that the enforcement program is adequate.
PUCO noted that a definition of ``nominally adequate,'' a
description of how states may be qualified as ``nominally adequate,''
and a listing of the implications of this designation for state
programs should be provided.
MidAmerican Energy noted that the ``paper hearing'' process
described in the ANPRM would be appropriate.
Response
The criteria PHMSA will use to determine the adequacy of state
enforcement programs and the administrative process for a state to
appeal a determination of inadequacy are proposed in this NPRM.
Civil Penalties
AGC commented that PHMSA must consider education as an alternative
or supplement to civil or other penalties, and in cases where financial
penalties are assessed revenues generated must be reserved to finance
excavation damage prevention education and technologies used in support
of excavation damage prevention activities.
Response
Enforcement tools other than civil penalties, such as compliance
orders, can be useful tools for enforcement of excavation damage
prevention laws. However, PHMSA believes that civil penalty authority
and effective use of that authority are essential components of
effective excavation damage prevention law enforcement programs. PHMSA
does not propose to require the use of sanctions other than those
provided in existing pipeline safety statutes or regulations.
Costs
API and AOPL noted that PHMSA may consider using its grant
resources, such as the SDP grants, to encourage state compliance with
the elements of this rulemaking. That may require changes to the
existing grant criteria that could be included in a proposed and final
rule.
Response
PHMSA agrees that the SDP grant program can be targeted to improve
state excavation damage prevention law enforcement programs, and PHMSA
does have discretion in weighting the evaluation criteria applicable to
SDP grant applications. However, PHMSA has not proposed any changes to
the SDP grant criteria in this proposed rule.
Process
AGC commented that subsequent to public hearings, a commission
should be convened to establish a predetermined timeline in which
states must meet certain benchmarks demonstrating steps to address
inadequacies and that any penalties or enforcement be coupled with
direct enforcement against pipeline operators who fail to accurately
locate and mark facilities.
The Texas pipeline associations commented that the first step in
the process used to determine the adequacy of a state's program should
be an evaluation of each state's program against a common set of known
factors. They commented that once PHMSA completes its evaluation, the
state should be permitted to comment on the evaluation before it is
finalized. They also consider that excavation damage prevention
stakeholders should be given an opportunity to comment on the
evaluation. When a final determination has been made and a state's
program is found inadequate in some respect, the state should be
provided an opportunity to make improvements to its program.
API and AOPL commented that PHMSA should use a multi-step process
when determining whether a state's program is inadequate, perhaps
including preliminary determinations, interim determinations, and
eventually final determinations. They also noted that at each step of
the process, PHMSA should clearly describe, in functional rather than
prescriptive terms, changes required for a state's program to be deemed
adequate. They commented that the process for this provision should be
the same as is currently used in the state certification program and
that assessment of a state's program should be at the program level,
not at an individual case level. API and AOPL also consider that enough
time should be granted at each step of the process to allow states time
to modify their programs as needed at the legislative and/or regulatory
level. This process should, however, be completed expeditiously to
ensure that compliance is timely and the public interest is preserved.
Similarly, PST commented that the administrative process for states
to contest notices of inadequacy described in the ANPRM seems fair to
the states. Among the concerns PST expressed, however, are the time
periods that
[[Page 19823]]
would be established for: (1) PHMSA to issue a notice of inadequacy
after its annual review; (2) a state to contest this notice; (3) PHMSA
to make a final written determination; (4) a state to petition for
reconsideration; and (5) PHMSA to rule on the petition for
reconsideration. PHMSA needs to strike the right balance between
waiting too long to intervene and not waiting long enough.
The Texas pipeline associations echoed this comment in that the
opportunity for a state to make improvements must take into account an
appropriate time period for the state agency to make the required
improvements in a manner complying with state law. These time periods
will need to be tailored to each situation because some may require
legislative action while others may only require an internal agency
policy change. They noted that while Federal administrative enforcement
may be necessary in some states, reasonable efforts should be exerted
and sufficient time provided to promote adequate state-based
enforcement of excavation damage programs. They suggested that there
may be situations where PHMSA could facilitate discussions between
state stakeholders to establish a plan to address certain deficiencies.
Missouri PSC commented that the process outlined in the ANPRM
appears to strike an appropriate balance between the Congressional
directive to PHMSA to undertake Federal administrative enforcement
while providing a state with a fair and efficient means of showing that
its enforcement program is adequate. However, Missouri PSC noted
further comments may well be necessary depending on the provisions of
the actual proposed rule.
NAPSR questioned how PHMSA would anticipate seeking information
from other agencies in those states where the enforcement agency is not
the state pipeline safety agency?
Response
PHMSA does not propose to convene a commission to establish a
predetermined timeline in which states must meet benchmarks
demonstrating steps to address inadequacies in their damage prevention
enforcement programs. PHMSA believes the state enforcement program
evaluation criteria proposed in this NPRM, in effect, establish
benchmarks.
PHMSA has proposed the process for evaluation of state enforcement
programs and the process by which states may contest notices of
inadequacy. PHMSA does not propose to consider excavation damage
prevention stakeholder comments on state enforcement program
evaluations.
PHMSA proposes to evaluate the states' enforcement programs whether
they are administered by state pipeline agencies or other state
authorities. PHMSA proposes to communicate the implications of this
proposed rule with state enforcement authorities outside of state
pipeline safety agencies, including attorneys general, state police
agencies, and other authorities, as required.
PHMSA would plan to make its determination as to the adequacy of a
state program as soon as practicable after completion of the state
annual review. A state would then have 30 days from receipt of the
notice of inadequacy to respond.
Review Cycle
API and AOPL noted that PHMSA should require annual reviews of
state excavation damage prevention programs, but such reviews should be
initiated after initial adequacy determinations have been completed.
They noted that annual reviews should focus on continuing effectiveness
indicators (i.e., whether or not excavation damage incidents are
declining) and not simply on whether every incident has merely been
documented and investigated.
NAPSR commented that the frequency of review of a state excavation
damage prevention program should be tailored to the level of adequacy
initially determined for the program, using criteria included in the
final rule resulting from this ANPRM. Thus, states with the lowest
level of initial adequacy could be reviewed annually, while states with
higher levels could be reviewed less often. NAPSR also noted that the
ANPRM speaks about an annual review that will likely include a review
of all of the enforcement actions taken by the state over the previous
year, and questioned whether this would be the state liaison asking a
few additional questions during the annual evaluation or something more
substantial with extensive documentation.
Similarly, Paiute Pipeline and Southwest Gas Corporation suggested
that if a state is found nominally adequate in its most recent annual
review, PHMSA should recommend placing the state on a staggered review
period, such as two or more years. They commented, however, that if a
state is found to be inadequate, PHMSA should recommend continuing with
an annual review to assist the state in enhancing its excavation damage
prevention program.
Michigan Consolidated Gas commented that considering the state has
the funding and resources to administer its enforcement program, a
periodic review is acceptable, but suggested that yearly is not
necessary.
MidAmerican Energy commented that an annual review of a state's
excavation damage prevention law enforcement program would be
appropriate with the provision that a state should be allowed to
petition PHMSA to show that its previously inadequate enforcement
program has been upgraded so that Federal administrative enforcement is
no longer required.
Response
PHMSA agrees that annual reviews of state excavation damage
prevention law enforcement programs should include reviews of program
effectiveness indicators and is proposing this in the NPRM. However,
PHMSA believes it appropriate to include program adequacy as part of
its annual review process, but does not propose to include additional
evaluation of continuing effectiveness indicators.
Standards
API and AOPL commented that PHMSA should consider the establishment
of minimum standards for critical elements of state one-call laws, such
as, but not limited to, notification time, tolerance zones and white-
lining (or otherwise denoting the area of intended proposed
excavation).
EPPG and Panhandle Energy also noted that prior to an audit by
Federal authorities of any state program, a clear and understood
``standard'' should be prepared that a state can be audited against and
met. EPPG supports the ANPRM's annual audit proposal of state programs
but is concerned that this effort could draw unnecessary resources away
from PHMSA's other safety programs. Therefore, EPPG advocated a
``standard,'' which is understood by all parties that could be more
quickly used as an audit tool during the annual audit.
Response
The criteria for review of state enforcement programs are proposed
in this NPRM and PHMSA welcomes comment on these criteria. However,
PHMSA is not proposing a model state one-call law or other audit
standard in this rulemaking.
State Resources
APGA expressed concern that the review process may become very time
consuming for both PHMSA and the states, which would have the
unintended effect of diverting limited resources away from the
excavation damage prevention effort. APGA
[[Page 19824]]
considers that there should be further discussion about exactly what
this review would entail before a rule is proposed.
Michigan Consolidated Gas commented that PHMSA should consider when
evaluating a state's enforcement program that this proposed process can
be influenced by the ability of the state to carry out enforcement
(i.e., state resources, funding, volume of complaints, etc.).
Similarly, the Michigan PSC commented that PHMSA must be flexible
depending upon the resources given to the state to provide for an
adequate program.
Response
The state enforcement program review process should not be too time
consuming or divert resources away from excavation damage prevention
responsibilities. The review criteria and process in this proposed rule
have been written to be as simple as possible to address this concern.
However, PHMSA is seeking comment on this conclusion.
Resources can affect the ability of a state to meet its excavation
damage prevention law enforcement responsibilities. However, PHMSA does
not propose to assess state enforcement resources, but instead to
assess state enforcement records. If state resources are insufficient
to enforce the state excavation damage prevention law adequately, state
enforcement records are likely to reflect the insufficiency.
C. Federal Requirements for Excavators
Section IV.C of the ANPRM sought comment on the establishment of
the Federal requirements for excavators that PHMSA would be enforcing
in a state that PHMSA has found to have an inadequate enforcement
program. It noted that at a minimum the standards will reflect the
words cited in the PIPES Act regarding requirements for excavators.
Section IV.C gave examples to which some commenters addressed
specifically, including:
Should the Federal requirements for excavators be limited
to the minimum requirements reflected in the PIPES Act or should they
be more detailed and extensive?
Will implementing the 911 requirement cause any unintended
consequences in practice?
Are there suggested alternatives to these standards?
The ANPRM also suggested that the CGA Best Practices and API
Recommended Practice 1166, Excavation Monitoring and Observation
(November 2005), could be used to inform the development of such
standards.
Federal Requirements
Several commenters, including AGA, API, AOPL, Michigan Consolidated
Gas, and others, support establishing a Federal requirement for
excavators. They noted that the minimum requirements in the PIPES Act
and the U.S. Code are sufficient for establishing Federal requirements,
and that keeping it simple is the most effective approach. API and AOPL
commented that the proposed requirements should lead to greater
pipeline safety by making excavators more aware of their one-call
responsibilities and the consequences of failing to comply with state
laws and regulations. AGA commented, however, that the ANPRM was
unclear whether PHMSA intends to try and impose these standards on
excavators that might include homeowners, land owners, private
contractors, and other utilities.
AGC commented that if PHMSA deems a state's excavation damage
prevention law enforcement program inadequate, the basic premises in
the ANPRM are reasonable. AGC suggested that PHMSA should refer to the
CGA Best Practices as a template for guidance standards in the absence
of appropriate state standards until a determination of the adequacy of
the state excavation damage prevention program is made.
Similarly, EPPG fully supports the development of a Federal
requirement that PHMSA could use to determine if a state's excavation
safety program is adequate but that PHMSA should not be the sole, or
even primary, developer of this standard. A national consensus standard
should be developed by all the various stakeholders, including Federal
and state agency regulators, industry, the excavation community,
members of the public, one-call organizations, and other excavation-
affected parties.
GulfSafe commented that setting standards for excavators would
bring some consistency to the excavation community, especially for
those excavators who consistently work in multiple states. GulfSafe
also considers it important that any prescriptive rule use the CGA Best
Practices as a foundation for the rule to gain acceptance in the
excavation community. The organization noted that the CGA Best
Practices have long been a consensus based approach that has understood
that one size doesn't fit all and has made allowances for geography and
soil types as well as local practices. Best Practices are intended to
be voluntary, not prescriptive, and there is evidence that they are
working.
The APGA opposes establishment of Federal requirements for
excavators and considers that PHMSA should defer to existing state laws
where they prescribe excavation damage prevention requirements. APGA
considers that creating a Federal requirement that would overrule state
requirements only if the state is found not to be enforcing its
excavation damage prevention law would create confusion in both the
excavation and utility communities as to which requirements apply. APGA
noted that only where a state has no standards for such activities
should PHMSA apply Federal requirements. On the other hand, API and
AOPL consider that while conditions vary from state-to-state and that
``one size does not fit all,'' PHMSA should establish minimum
requirements through a notice and comment rulemaking process.
MidAmerican Energy Company commented that the minimum requirements
presented in the ANPRM are an appropriate starting point, and that if
experience reveals that additional or revised requirements are
necessary, then revisions can be made based on the documented record.
However, they noted that any additional or revised standards should
consider that state excavation damage prevention laws pertain to more
than just pipelines--they pertain to all types of underground
facilities. It does not appear to be practical or prudent to approach
this set of issues soley from a pipeline-only perspective, or to
promote a ``one size fits all'' approach to underground facilities
excavation damage prevention.
Missouri PSC, Paiute Pipeline, and Southwest Gas Corporation
commented that Federal requirements limited to the minimum requirements
reflected in the referenced Federal statute should be sufficient.
However, Missouri PSC noted that Federal requirements should also refer
to any state statutory provisions that are either more stringent or
different in practice (such as damages being reported to the one-call
center rather than the pipeline operator directly). EPPG and Panhandle
Energy support the development of a template that PHMSA could use to
determine if a state's excavation safety program is adequate. Panhandle
considers that a national consensus standard or recommended practice
should be developed by all the involved stakeholders, including Federal
and state agency regulators, industry, the excavation community,
members of the public, one-call organizations, and other excavation-
affected parties. EPPG and Panhandle consider that a national consensus
standard should address the issues mentioned in the ANPRM in
[[Page 19825]]
Section IV.C, at a minimum, but should also address many other issues
including, among others:
Expectations of individual state's programs; expectations
of excavators, regardless of legal or contractual affiliation.
Types of excavators covered by the standard (all
excavators regardless of affiliation).
Individual state's abilities to contest an annual Federal
audit's findings.
Physical excavation guidelines (locating, marking,
communications, etc.).
The role of one-call programs.
Excavation damage reporting requirements.
Description of excavator's responsibilities prior to and
following any excavation, including any spill or damaging incident to
the pipeline operator.
Requirements to contact 911 if any release of product or
natural gas occurs.
Establishment of a mechanism to ensure the state receives
reports of pipeline damage incidents in a timely manner.
Use of ``emergency'' excavation processes.
Excavation investigation requirements if pipeline damage
occurs.
Explicit state authority.
Enforcement documentation requirements.
Reference to other useful guidance documents, such as the
Common Ground Alliance's work.
Due process criteria for excavators if liability is found.
EPPG noted that some of these issues may not be suitable for a
national consensus standard, and enforcement provisions are left out
altogether since they are not suitable for a national consensus
standard, but those not included in a standard could be incorporated
within a future PHMSA ``state guide'' for excavation safety.
Michigan PSC commented that more detailed and extensive
requirements are not necessary and may be in direct conflict with
various states' laws. It also asked that ``excavator'' be defined. For
example, will homeowners be subject to the Federal requirements?
NAPSR commented that PHMSA should not undermine state requirements
with a second layer of excavator standards, but should defer to the
individual states in such matters. They noted that the Federal law
appears to define the expectations for excavators reasonably and
provides a basis for enforcement. If PHMSA adopts regulations further
defining what standards it believes an excavator should be held to, it
risks creating two sets of standards, state and Federal, which
excavators must follow. Due to the diversity of state requirements, the
Federal requirements would undoubtedly contain inconsistencies and
conflicts with the standards of at least some states.
Nicor commented that one aspect of the minimum standards that is
inadequate involves the locating and marking of facilities for which
ownership is unclear. During this period prior to completion, such
facilities may be left unmarked after a call to the one-call system. As
an example, Nicor noted that in a new subdivision, it is often unclear
who has ownership of and responsibility for locating and marking sewer
and water lines prior to completion, at which point the property owner
or municipality takes ownership.
NUCA commented that the proposed Federal requirements effectively
cover the primary responsibilities of the excavator, and are consistent
with past DOT excavation damage prevention messages, such as the ``Dig
Safely'' initiative of the 1990s. However, NUCA noted that utilization
of ``location information'' is too vague for inclusion in a new Federal
requirement. General information of underground pipeline facilities
should never substitute for meeting all of the operator's locating and
marking responsibilities.
Ohio PUC commented that requirements for pipeline operators and
excavators should parallel, and PHMSA should consider providing
guidance on how it intends to evaluate liability and enforcement if an
excavator damages a pipeline system due to a pipeline owner/operator
failing to mark underground lines or marking them incorrectly or
inaccurately. Ohio PUC also commented that any Federal requirements
should avoid specific requirements for marking standards that may
conflict with reasonable and appropriate marking standards developed by
individual states.
The PST commented that there are a number of issues that need to be
addressed if PHMSA imposes Federal requirements on excavators when
PHMSA deems a state to have an inadequate enforcement program. For
example: (1) Will these standards be permanent or will excavators again
be held to state standards once the state program is deemed adequate?
(2) What happens if the state enforcement program is deemed inadequate
but some of the state's standards or requirements are more stringent
than the Federal government's? Will PHMSA impose its lesser standards?
(3) If the standards revert to those of the state once the enforcement
program is deemed adequate, it is conceivable that excavators would
only be required to meet the Federal requirements for a short period of
time (from one annual review to another). Should this happen,
excavators are likely to become confused about their compliance
responsibilities.
Southern California Gas and California Gas and Electric prefer that
the standards for excavators for reporting damage should define
``damage'' in more detail, similarly to California Government Code
4216.4.(c). They noted that all damage, even coating or cathodic
protection wire damage, can affect the integrity of the pipeline over
time.
The three Texas pipeline associations commented that it is probably
best if PHMSA adopts some set of Federal requirements for excavation
damage prevention to be enforced in situations where a state program is
determined to be inadequate. They noted that if the scope of a state
agency's excavation damage prevention standards was not the source of
the finding of inadequacy, it would be least disruptive to all aspects
of industry for PHMSA to simply enforce the existing state standards.
They further noted that this approach may cause some legal and
practical issues for PHMSA to provide consistent enforcement. It could
represent a significant challenge for PHMSA to educate its staff on the
large variety of state standards that they would need to enforce.
USIC Locating Services' comments indicate that it is in favor of
establishing standards for excavators with regard to: the use of a
mandatory 72-hour notice requirement; limiting the scope of a ticket to
1,320 feet; use of a 24'' tolerance zone on either side of the buried
facility; requiring white-marking (as opposed to just suggesting white-
marking); emergency locate requests made by excavators; and strict
penalties levied against excavators abusing emergency locate
provisions.
The Wisconsin Transportation Builders Association (WTBA) commented
that industry is concerned about the emphasis being placed solely on
the excavator. They noted that while some requirements may be
appropriate and helpful, they will nearly always create unintended
consequences such as unnecessary cost and uncontrollable risk.
According to the WTBA, there is rarely discussion regarding who is
responsible for costs associated with unexpected delays to contractors.
These costs are substantial and continue to affect the cost of public
projects adversely.
[[Page 19826]]
Response
PHMSA proposes to apply Federal requirements to all excavators,
with the exception of homeowners excavating with hand tools on their
own property, in states PHMSA deems to have inadequate excavation
damage prevention law enforcement programs. The term ``excavator'' is
defined in this proposed rule. PHMSA cannot enforce state laws in the
absence of Federal requirements because, to the extent state
requirements go above and beyond the minimum Federal laws, PHMSA has no
authority to enforce such requirements. Development of Federal
requirements is, therefore, a prerequisite to Federal administrative
enforcement. The standards proposed in this NPRM are designed to
establish minimum requirements for excavators to avoid excavation
damage to pipelines.
PHMSA does not propose to develop the Federal requirements through
a consensus process, but rather through this rulemaking process. PHMSA
used the PIPES Act to inform the development of the proposed Federal
requirements.
This proposed rule does not refer to any state standards; PHMSA
believes to do so could create an overly-prescriptive set of standards.
Different states have different geographic and demographic conditions
and an effective damage prevention program for one state may not
necessarily work for another. However, PHMSA considers the proposed
Federal regulations to be the minimal standard that is basic to any
effective excavation damage prevention law enforcement program. Because
state and Federal requirements will never be enforced simultaneously,
the existence of a Federal requirement should not present any conflicts
with existing state requirements for excavators. However, PHMSA is
seeking comment on this issue. PHMSA does recognize that excavators
should be informed of the Federal requirements in states where those
standards will apply. To that end, PHMSA intends to continue to work
with excavator trade associations, state agencies and one-call centers,
the Common Ground Alliance, and other key excavation damage prevention
stakeholders to communicate the requirements of the final rule and the
adequacy status of each state as broadly as possible.
As we have stated previously, PHMSA's statutory enforcement
authority pertains only to excavation damage prevention as it relates
to pipelines. Because PHMSA has no jurisdiction over sewer and water
facility operators, this proposed rule does not address those
operators' responsibilities.
Requirements for pipeline operators regarding locating and marking
their facilities are clearly defined in existing pipeline safety
regulations (49 CFR Parts 190-199). PHMSA will continue to enforce
existing Federal excavation damage prevention regulations applicable to
pipeline operators if investigations reveal that pipeline operators
fail to comply with those regulations. PHMSA does not propose to amend
the standards currently applicable to pipeline operators in this
rulemaking proceeding.
PHMSA considered the comments regarding one-call standards, but
believes those types of standards would be overly-prescriptive and
confusing for the purposes of this proposed rule. This proposed
rulemaking does not impede any party's legal rights to pursue
restitution of damages from any other party involved in a damage
incident.
Implementing 911 Requirement
AGA commented that implementation of the 911 requirement can result
in some unintended consequences that may actually cause behaviors and
actions that are detrimental to pipeline safety. It noted that as a
practice in responding to 911 calls being made, fire departments often
bill their costs to the excavator and in some circumstances the natural
gas utility. Very often, the excavator is a professional contractor. As
a result, excavators are having second thoughts about dialing 911 when
damage results in a leak, particularly on smaller diameter plastic pipe
that is viewed as an ``easy'' repair for professional contractors who
think they have the ability and the means to make an acceptable repair.
Having unqualified personnel making repairs on natural gas lines can
lead to catastrophic consequences.
AGA also noted that natural gas utilities try to foster a culture
that encourages a contractor to notify the gas utility promptly when a
pipe is dented or nicked, its coating scratched, or even when a tracer
wire is cut or anode wire broken. The motivation for the utility is
that it can respond and determine what repair actions are needed, to
ensure the pipe will not fail or leak at some point in the future, and
that the pipe can be located in response to future excavation activity.
The utilities have developed relationships with contractors so that
they trust they will not be billed in circumstances where the
contractors are forthcoming and can demonstrate they have made a
reasonable attempt to dig responsibly and follow one-call and state
statutes.
AGA, Missouri PSC, NUCA, Southern California Gas, California Gas
and Electric, and others expressed concern that the volume of calls
resulting from this requirement may be unmanageable and could result in
limited emergency response resources being used in situations that
really do not necessitate an emergency response. AGA, Southern
California Gas, and California Gas and Electric noted, for example,
that as a result fire departments could have to respond to every
excavation damage incident reported via 911, including breaks on small
diameter service lines where the gas may be safely venting to the
atmosphere and public safety is generally not threatened. The response
of fire departments to potentially thousands of inconsequential
excavation damages could compromise their ability to respond to other
events that are actually life-threatening emergencies. Missouri PSC was
aware of one major gas distribution operator that is having its
practice of advising excavators to call 911 questioned by local
emergency officials.
MidAmerican Energy Company, Paiute Pipeline and Southwest Gas
Corporation commented that the 911 requirement should not be mandated
for all releases of hazardous materials. If a violation of the
excavation damage prevention laws results in a public safety emergency
that may endanger life or cause serious bodily harm or damage to
property, then, as for any public safety emergency, the use of the 911
telephone notification system would be appropriate. Otherwise, calling
911 should not be necessary.
Regarding emergency responders, NUCA commented that the proposed
rule should address the role of first responders in situations where
the escape of flammable, toxic, or corrosive product is released as a
result of damage to an underground pipeline. NUCA noted that if a 911
call is made, the responders must be trained in how to respond to the
situation effectively. NUCA noted that traditionally, representatives
from the company that owns the gas or hazardous liquid pipeline are
best educated and equipped to handle these situations.
Nicor commented that the 911 requirement is most appropriate when
someone other than the pipeline owner or operator damages the pipeline.
Operators who accidentally damage their own facilities should have the
flexibility of calling 911 if they need further assistance in making an
area safe. As a basis, Nicor cited that pipeline operators are also
sometimes excavators and that provisions should be developed for
instances where an
[[Page 19827]]
operator's excavation crew accidentally damages its own facility and
that results in a release of natural gas. The crews are trained and
qualified to handle emergency response and to make repairs. Often
times, the release of gas is secured very quickly and should not
warrant calling 911. Additionally, after responding to a 911 call
involving excavator damage and a release of natural gas from a
pipeline, some fire departments have sent invoices to natural gas
operators for costs incurred for hazmat response. Nicor noted that the
inability of an operator to exercise discretion in calling 911 may lead
to strained relationships between natural gas pipeline operators and
fire departments.
NUCA, Paiute Pipeline and Southwest Gas Corporation commented that
PHMSA should specify that excavators must call 911 if the ``damage
results in the escape of any flammable, toxic, or corrosive gas or
liquid,'' as specified in the PIPES Act, instead of trying to include
all of these under the umbrella of ``hazardous products.'' They noted
that excavators are not emergency responders, and the regulation should
be as specific as possible to distinguish between natural gas and other
gases or liquids to identify what products are considered ``hazardous''
by PHMSA.
Michigan PSC noted that implementing the 911 requirement will not
cause any unintended consequences in practice. Paiute and Southwest Gas
Corporation also commented that all API RP 1162 related communications
and activities should promote the requirement of calling 911 if a
pipeline damage incident causes a release of product. They also noted
that although they cannot reference any empirical evidence that
identifies any unintended consequences of implementing the 911
requirement, as excavators become better educated on this requirement,
calls to emergency response agencies will likely increase.
Response
PHMSA considered all of the comments pertaining to implementing the
911 requirement. The PIPES Act requires excavators to promptly call the
911 emergency telephone number if a damage results in the escape of any
flammable, toxic, or corrosive gas or liquid that may endanger life or
cause serious bodily harm or damage to property. PHMSA understands that
excavators and utility operators are sometimes required to reimburse
911 centers for the cost of dispatching emergency response personnel to
a damage site. Therefore, PHMSA is proposing that excavators must call
911 in these instances, but may exercise discretion as to whether to
request that the 911 operator dispatch emergency response personnel to
the damage site. PHMSA welcomes additional comments on the 911 issue.
Reference to API RP 1166
AGA commented that API RP 1166 does not apply in developing
standards for excavators in that it does not apply to natural gas
distribution operators. AGA noted that this standard is a useful
resource for gas transmission pipeline operators, but that the decision
to monitor and possibly observe any excavation activity is at the
discretion of the pipeline operator.
Several commenters noted that the CGA Best Practices and API
Recommended Practice 1166 could be used to inform the development of
such standards, but that the minimum requirements stated in 49 U.S.C.
60114 are appropriate. Paiute Pipeline and Southwest Gas Corporation
commented that PHMSA should refrain from citing best practices from any
organization, publication or individual entity as regulation.
Response
PHMSA is not proposing to use API RP 1166 to inform the development
of the Federal requirement for enforcement and believes the
requirements stated in the PIPES Act are appropriate.
D. Adjudication Process
Section IV.D of the ANPRM sought comment on the adjudication
process that PHMSA would use if it cited an excavator for failure to
comply with Federal requirements established by this rulemaking process
in a state where PHMSA has deemed the enforcement program inadequate.
It noted that at a minimum, an excavator that allegedly violated the
applicable requirement would have the right to: receive written notice
of the allegations, including a description of the factual evidence
supporting the allegations; file a written response to the allegations;
request a hearing; be represented by counsel if the excavator chooses;
examine the evidence; submit relevant information and call witnesses on
his or her behalf; and otherwise contest the allegations of violation.
Hearings would likely be held at one of PHMSA's five regional offices
or via teleconference. The hearing officer would be an attorney from
PHMSA's Office of Chief Counsel. The excavator would also likely have
the opportunity to petition for reconsideration of the agency's
administrative decision and judicial review of final agency action
would be available to the same extent it is available to a pipeline
operator.
Commenters were invited to submit their views on this process or
suggest alternatives. For example:
Is the process too formal in the sense that excavators
contesting a citation would have to prepare a written response for the
record and potentially appear before a hearing officer?
Is the process not formal enough in the sense that it does
not provide for formal rules of evidence, transcriptions, or discovery?
Or does this process strike the right balance by being efficient and at
the same time providing enough formality that excavators feel the
process is fair and their due process rights are maintained?
How should the civil penalty criteria found in 49 U.S.C.
60122(b) apply to excavators?
All Parties
AGC and NUCA commented that the adjudication process outlined by
PHMSA seems fair; however, PHMSA must carefully consider that if an
excavator is not found to be at fault, excavators must maintain the
right to pursue damages for downtime and the ability to recover legal
expenses. Allowing excavators all rights to due process should be
recognized, and the same privileges afforded to others subject to
Federal administrative enforcement (i.e., pipeline operators) should be
afforded to excavators. NUCA noted that ensuring excavators the right
to pursue damages (i.e., downtime expenses), must be considered when
establishing a new Federal adjudication process. NUCA also noted that
excavators regularly lose significant revenue in downtime expenses
after having to shut down projects because of underground facilities
that were either not marked or marked inaccurately. According to NUCA,
this is an enormous financial problem facing professional excavators,
and one that must be addressed in the PHMSA regulation. AGC agreed that
hearings should be open to the public and conducted at one of PHMSA's
five regional offices or an alternative location accessible to all
parties.
MidAmerican Energy Company also noted that participation in any
process should not preclude the ability to pursue further legal
remedies a participant may determine to be appropriate.
USIC Locating Services commented that whatever process is
established should provide interested parties a right of intervention
so that the resulting record accurately reflects the positions of all
affected parties.
[[Page 19828]]
Nicor noted that excavators who are also operators of pipelines
regulated under 49 CFR Part 192 already fall under the enforcement
requirements of Subpart B in 49 CFR Part 190. If PHMSA determines that
it must take enforcement action against other excavators the same
process could be followed.
Response
PHMSA agrees that an excavator must maintain the right to pursue
damages for downtime and the ability to recover legal expenses if the
excavator is not found to be at fault in an excavation damage incident
investigation; this proposed rule does not infringe upon those rights.
In addition, this proposed rule is intended to establish adjudication
procedures that protect the rights of excavators to due process. PHMSA
also believes that interested parties should have the opportunity to
attend and observe hearings and the opportunity to request intervention
status within the PHMSA adjudication process so that the resulting
record accurately reflects the position of all affected parties.
Appeals
AGC commented that the excavator should have the opportunity to
petition for reconsideration of PHMSA's administrative decision, and
judicial review of final agency action should be available to the same
extent it is available to a pipeline operator. Similarly, the three
Texas pipeline associations commented that there should be an appeals
process for a party to challenge the outcome of the hearing.
Response
The process for an excavator to request reconsideration or appeal a
finding of violation by PHMSA is provided in this proposed rule.
Arbitration and Advisory Committees
Spectra Energy commented that each state should have a clearly
defined process for arbitration or review of enforcement actions for
violations of excavation damage prevention regulations. Spectra
suggested that one possible method is to have an independent panel that
would review and recommend final enforcement action. The panel should
include members that represent the one-call center, pipeline operators
and the excavator community.
Response
As noted above, committees composed of representatives of all
excavation damage prevention stakeholders to advise enforcement
agencies are a proven method of ensuring fair and balanced excavation
damage prevention law enforcement. Such may be the case with
arbitration committees. While PHMSA does not propose to use an advisory
committee for Federal administrative enforcement proceedings, PHMSA
does not object to a state's use of an advisory committee in the state
enforcement process.
Civil Penalties
AGA noted that PHMSA must distinguish between levying any fines on
entities or persons engaged in excavation damage prevention activities,
as opposed to the fines and enforcement actions PHMSA traditionally
takes against pipeline operators under 49 U.S.C. 60122(a). Similarly,
Paiute Pipeline and Southwest Gas Corporation commented that the
penalty criteria found in 49 U.S.C. 60122(b) are excessive to the
average excavator and to the average excavation damage.
Paiute Pipeline, Southwest Gas Corporation, and Missouri PSC
commented that PHMSA should work with the individual states on invoking
civil penalties in their individual laws. Missouri PSC agreed,
commenting that unless the civil penalty provisions existing in a
state's law are the reason a state's enforcement program is deemed
inadequate, the state's penalties should be applied rather than the
Federal penalties.
Paiute Pipeline and Southwest Gas Corporation commented that the
adjudication process outlined is generally adequate, but to make the
process fair and efficient a step should be added allowing an alleged
violator to accept PHMSA's recommendation for a reduced penalty and
agreement to take some remedial action such as attending an educational
seminar on underground excavation damage prevention and pipeline
safety.
WTBA commented that civil penalties should not apply to excavators
unless there was a truly unlawful act of negligence.
MidAmerican Energy Company agreed that the penalty criteria found
in 49 U.S.C. 60122(b) are reasonable to consider in evaluating the
amount of a civil penalty to assess for a violation of the one-call
provisions. MidAmerican also questions whether the violator's (1)
ability to pay and (2) any effect on the ability of the violator to
continue doing business are necessarily relevant criteria in all cases.
MidAmerican noted that the remainders of the penalty criteria appear to
provide the flexibility for the agency to tailor the assessment of a
civil penalty to the specific circumstances of a particular violation.
It considers that ``an egregious violation or a pattern of violations
evidencing an intentional or negligent disregard of the one-call
provisions could present a serious threat to the public safety. In
those, hopefully unusual, cases, the dangers presented by an excavator
continuing to exhibit such a callous disregard for the public safety
should take precedence over the effect that the assessment of a civil
penalty might have on the violator's ability to pay or to continue
doing business. The Illinois administrative regulations also contain
these two penalty criteria.''
The three Texas pipeline associations commented that regardless of
process, any person or entity found guilty of violating the Federal
requirements should face financial penalties that provide incentives
for future compliance and reflect the seriousness of the violation.
Response
PHMSA proposes to use the civil penalty provisions described in 49
U.S.C. 60101 et seq. as a basis for civil penalties levied against
excavators subject to this proposed rule. PHMSA believes this approach
is preferable to establishing alternate civil penalty provisions
specific to this proposed rule. PHMSA proposes to take into account a
violator's ability to pay, ability to continue to do business, and the
seriousness of the violation when determining appropriate civil
penalties. PHMSA seeks comment on the proposed use of civil penalties.
Formality
AGA, AGC, MidAmerican Energy, and Missouri PSC agree that the
adjudication process noted in the ANPRM is not too formal. API, AOPL,
and NUCA all support the process as described. API and AOPL commented
that the adjudication should allow the hearing officer sufficient
flexibility to conduct the proceeding promptly and efficiently, such
that decisions may be rendered without undue delay.
Panhandle Energy and EPPG both suggested that the processes defined
in 49 CFR Part 190 be followed. Spectra Energy Transmission noted that
when an enforcement action relating to violation of excavation damage
prevention regulations is initiated, the excavator and pipeline
operator should have the opportunity for a hearing.
AGA commented that the adjudication process must be a formal one,
where the excavator is able to defend his or her actions, explaining
how and why the damage occurred, and to contest an alleged violation.
AGA and
[[Page 19829]]
AGC both noted that the adjudication process must provide for formal
rules of evidence, transcriptions, and discovery, to conduct fair
proceedings that ensure all parties' rights to due process are
maintained. AGC commented that a formal adjudication process should be
adopted to preserve the rights of an excavator charged with a
violation. The process should include the right(s) to: receive written
notice of the allegations, including a description of the evidence the
allegations are based on; allow for a submission in response to the
allegations; and, allow for an informal hearing with counsel if
necessary. AGC also noted that the adjudication procedure should
thoroughly examine the evidence and allow for submission of relevant
information and testimony from witnesses to adjudicate the allegation
of violation thoroughly.
MidAmerican Energy commented that while the proposed process
strikes the appropriate balance, strict adherence to the formal rules
of evidence or extensive discovery is not necessary or appropriate.
MidAmerican also suggested that transcripts could be optional at the
expense of the state or requesting party.
Paiute Pipeline and Southwest Gas Corporation commented that the
adjudication process should remain at the state level, and not a formal
Federal process. They noted that excavators would appreciate the
efficiency of maintaining the adjudication process at the state level,
and that if damages are involved, there is always the claim/court
system for excavators, operators and states with enforcement authority
for billable and damage awards. They consider that PHMSA should only
step in when the entire program is deemed inadequate, and should not
mandate enforcement at the Federal level but rather partner with the
states to enhance the enforcement at the state or local level. They
consider that PHMSA's support of states and their excavation damage
prevention programs will ultimately provide the excavation damage
prevention authority and enforcement PHMSA is seeking with the proposed
rulemaking procedures. They commented that PHMSA may want to include a
provision for the excavating community to submit a request for Federal
involvement if they feel the process is unfair and their rights are not
being maintained at the state level.
WTBA commented that the proposed process appears to be too formal
and does not sound like an ``informal hearing.'' It noted that there
must be an opportunity for a true informal hearing, at a location near
the project, to discuss actual facts of the incident. It also commented
that an informal hearing must involve individuals that are
knowledgeable of construction and design that are capable of
determining whether reasonable efforts were made by all parties
involved.
APGA agrees that enforcement proceedings should be conducted at the
PHMSA regional office level rather than headquarters. APGA also noted
that Virginia has an excavation damage prevention law enforcement
program that involves a panel comprised of excavators, facility owners
and others to advise on the appropriate level of penalties, if any.
APGA suggests that PHMSA consider whether a similar system could work
for any Federal administrative enforcement actions.
Response
The majority of commenters support PHMSA's approach for the
adjudication process proposed in this NPRM and that the process is
sufficiently formal to protect the rights of excavators to due process,
but not so formal as to be overly burdensome for alleged violators.
PHMSA is not proposing to use an advisory panel modeled after
Virginia's excavation damage prevention program, but instead to follow
the process described in this proposed rule.
E. Existing Requirements Applicable to Owners and Operators of Pipeline
Facilities
Section IV.E of the ANPRM invited commenters to submit their
feedback and comments on the adequacy of PHMSA's existing requirements
for pipeline operators to participate in one-call organizations,
respond to dig tickets, and perform their locating and marking
responsibilities. Under existing pipeline safety regulations 49 CFR
192.614 for gas pipelines and 49 CFR 195.442 for hazardous liquid
pipelines, operators are required to have written excavation damage
prevention programs that require, in part, that the operator provide
for marking its pipelines in the area of an excavation for which the
excavator has submitted a locate request.
Comments could address, for example, whether PHMSA should consider
making the existing regulatory requirements more detailed and explicit
in terms of:
The amount of time for responding to locate requests;
The accuracy of facility locating and marking; or
Making operator personnel available to consult with
excavators following receipt of an excavation notification.
Federal One-Call
No commenters that addressed the existing pipeline safety damage
prevention regulations, 49 CFR 192.614 and 195.442, considered these
requirements to be inadequate, nor did they believe that PHMSA needed
to make these requirements more detailed or specific. Several commented
that to do otherwise would lead to confusion where the Federal
requirements were different from state standards.
Commenters suggested that PHMSA should enforce states' laws and
that states already have the ability to establish more detailed
regulations on pipeline operators for facility locating and marking.
AGA considers that it is not logical for PHMSA to suggest that Federal
requirements addressing one-call types of issues can be imposed at the
national level. They consider that adding more details at the Federal
level will be problematic since it may conflict with existing state
regulations and cannot take unique state laws into consideration. AGA
also commented that no language in the Federal regulations is necessary
regarding the ability of excavators to request a consultation or job-
site meeting with underground facility operators, since most one-call
centers already have a procedure for this.
AGC suggested that PHMSA encourage state regulatory authorities to
equally enforce state laws applicable to underground facility owners
and operators who fail to respond to a location request or fail to take
reasonable steps, in response to such a request. AGC also noted that
state enforcement programs should consider the costs involved for
excavators when they incur downtime due to a violation by an operator
or a locator.
Nicor commented that state authorities must make enforcement of
owner/operator requirements a higher priority and should consider the
CGA Best Practices.
API and AOPL commented that pipeline operators should be held to
the same standards as other facility owners and excavators, and should
be held accountable to respond to locate requests in a timely and
accurate manner. They noted, however, that they do support regulations,
such as those in California (CA Govt. Code Section 4216-4216.9), that
impose more explicit and additional requirements for both the owner and
the excavator when excavating in close proximity to high priority,
subsurface installations.
GulfSafe commented that offshore operators are exempt from being
members of a one-call system. It noted
[[Page 19830]]
that this was an appropriate exemption at the time it was written but
may need revisiting as technology has progressed over the past two
decades to be a more practicable solution to prevent damages offshore.
GulfSafe also suggested that this is the suitable time to address the
enforcement issue that goes along with this exemption, since there are
large differences in state laws regarding offshore pipelines and
enforcement may fall to Federal agencies by default.
Ancillary to this concern, Michigan Consolidated Gas commented that
PHMSA consider the excavator's ability to call in an unreasonable
number of tickets per day causing resource allocation issues for locate
personal. Also, Michigan PSC recommended that all meetings between an
excavator and operator be documented and digital pictures be taken at
job-sites prior to excavation activity.
Response
PHMSA does not have the authority to enforce state laws. PHMSA
believes that specifying the number of tickets per day an excavator can
create, as well as how meetings between excavators and operators should
be documented as part of the Federal requirement is not appropriate
given the ``backstop'' (i.e., Federal enforcement only in the absence
of adequate state enforcement) nature and use of the Federal authority.
In addition, PHMSA believes that addressing the exemption for offshore
operators is outside the scope of this NPRM.
V. Regulatory Analysis and Notices
The proposed rule would amend the Federal Pipeline Safety
Regulations (49 CFR Parts 190-199) to establish criteria and procedures
PHMSA will use to determine the adequacy of state pipeline excavation
damage prevention law enforcement program.
Statutory/Legal Authority for This Rulemaking
PHMSA's general authority to publish this proposed rulemaking and
prescribe pipeline safety regulations is codified at 49 U.S.C. 60101 et
seq. Section 2(a) of the PIPES Act (Pub. L. 109-468) authorizes the
Secretary of Transportation to enforce pipeline damage prevention
requirements against persons who engage in excavation activity in
violation of such requirements provided that, through a proceeding
established by rulemaking, the Secretary has determined that the
relevant state's enforcement is inadequate to protect safety.
Executive Order 12866, Executive Order 13563, and DOT Policies and
Procedures
This proposed rule is a significant regulatory action under section
3(f) of Executive Order 12866 (58 FR 51735) and 13563, therefore, was
reviewed by the Office of Management and Budget. This proposed rule is
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034).
Executive Orders 12866 and 13563 require agencies to regulate in
the ``most cost-effective manner,'' to make a ``reasoned determination
that the benefits of the intended regulation justify its costs,'' and
to develop regulations that ``impose the least burden on society.''
Because excavation damage is one of the major causes of pipeline
incidents, the expected benefits of this rulemaking action are an
increased deterrent to violations of one-call requirements and the
attendant reduction in pipeline incidents and accidents caused by
excavation damage. Failure to use an available one-call system is a
known cause of pipeline accidents.
A regulatory evaluation containing a statement of the purpose and
need for this rulemaking and an analysis of the costs and benefits is
available in the docket.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), PHMSA
must consider whether rulemaking actions would have a significant
economic impact on a substantial number of small entities. Pursuant to
5 U.S.C. 603, PHMSA has made an initial determination that the proposed
rule will not have a significant economic impact on a substantial
number of small entities. This determination is based on the minimal
cost to excavators to call the one-call center. In addition, the
proposed rule is procedural in nature and its purpose is to set forth
an administrative enforcement process for actions that are already
required. The proposed rule would appear to have no material effect on
the costs or burdens of compliance for regulated entities, regardless
of size. Thus, the marginal cost, if any, that would be imposed by the
rule on regulated entities, including small entities, would not be
significant. Based on the facts available about the expected impact of
this rulemaking, I certify that this proposed rulemaking will not have
a significant economic impact on a substantial number of small
entities. PHMSA invites public comments on this certification.
Since the Regulatory Flexibility Act does not require an initial
(or final) regulatory flexibility analysis when a rule will not have a
significant economic impact on a substantial number of small entities,
such an analysis is not necessary for this proposed rule. Nonetheless,
PHMSA invites public comment on the proposed rule's effect on the
costs, profitability, competitiveness of, and employment in small
entities to ensure that no significant economic impact on a substantial
number of small entities would be overlooked. The following information
is provided to assist in such comment:
Description of the small entities to which the proposed rule will
apply.
In general, the enforcement process set forth in the proposed rule
will potentially apply to any person conducting excavation activity in
the vicinity of a pipeline who fails to call the one-call center or
otherwise violates applicable requirements. The rule does not apply to
homeowners excavating with hand tools on their own property. A precise
estimate of the number of small entities is not currently feasible
because Federal administrative enforcement will only be considered in
states that do not have an adequate enforcement program and
determinations on state programs turn on a number of factors that will
require a factual analysis on a case-by-case basis. PHMSA seeks any
information or comment on these issues, as noted below.
Description of the projected reporting, recordkeeping and other
compliance requirements of the proposed rule, including an estimate of
the classes of small entities that will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
This proposed rule imposes no additional reporting costs to
businesses, including small businesses. The proposed rule is procedural
in nature and its purpose is to set forth an administrative enforcement
process for actions that are already required. The costs impacts
associated with this proposed rulemaking would be imposed on Federal
and state governments.
Identification, to the extent practicable, of all relevant Federal
rules that may duplicate, overlap or conflict with the proposed rule.
PHMSA is unaware of any duplicative, overlapping, or conflicting
Federal rules. As noted below, PHMSA seeks comments and information
about any such rules, as well as any industry
[[Page 19831]]
rules or policies that would conflict with the requirements of the
proposed rule.
Description of any significant alternatives to the proposed rule that
accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities.
PHMSA seeks comments and information about any alternatives such
as: (1) Establishment of differing compliance or reporting requirements
or timetables that take into account the resources available to small
entities; (2) clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) any exemption from coverage of the rule, or any part
thereof, for such small entities.
Executive Order 13175
PHMSA has analyzed this proposed rule according to the principles
and criteria in Executive Order 13175, ``Consultation and Coordination
With Indian Tribal Governments.'' Because this proposed rule would not
significantly or uniquely affect the communities of the Indian tribal
governments or impose substantial direct compliance costs, the funding
and consultation requirements of Executive Order 13175 do not apply.
Paperwork Reduction Act
Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide
interested members of the public and affected agencies with an
opportunity to comment on information collection and recordkeeping
requests. PHMSA estimates that the proposals in this rulemaking will
cause an increase to the currently approved information collection
titled ``Gas Pipeline Safety Program Certification and Hazardous Liquid
Pipeline Safety Program Certification'' identified under Office of
Management and Budget (OMB) Control Number 2137-0584. Based on the
proposals in this rule, PHMSA estimates a 20% increase to states with
gas pipeline safety program certifications/agreements. PHMSA estimates
the increase at 12 hours per respondent for a total increase of 612
hour (12 hrs*51 respondents). As a result, PHMSA will submit an
information collection revision request to OMB for approval based on
the requirements in this proposed rule. The information collection is
contained in the pipeline safety regulations, 49 CFR Parts 190-199. The
following information is provided for that information collection: (1)
Title of the information collection; (2) OMB control number; (3)
Current expiration date; (4) Type of request; (5) Abstract of the
information collection activity; (6) Description of affected public;
(7) Estimate of total annual reporting and recordkeeping burden; and
(8) Frequency of collection. The information collection burden for the
following information collection will be revised as follows:
Title: Gas Pipeline Safety Program Certification and Hazardous
Liquid Pipeline Safety Program Certification.
OMB Control Number: 2137-0584.
Current Expiration Date: 6/30/2012.
Abstract: A state must submit an annual certification to assume
responsibility for regulating intrastate pipelines, and certain records
must be maintained to demonstrate that the state is ensuring
satisfactory compliance with the pipeline safety regulations. PHMSA
uses that information to evaluate a state's eligibility for Federal
grants.
Affected Public: State and local governments.
Annual Reporting and Recordkeeping Burden:
Total Annual Responses: 67.
Total Annual Burden Hours: 4,532 (this estimate includes an
increase of 612 hours).
Frequency of Collection: Annually and occasionally at states'
discretion.
Requests for a copy of this information collection should be
directed to Cameron Satterthwaite, Office of Pipeline Safety (PHP-30),
Pipeline Hazardous Materials Safety Administration (PHMSA), 2nd Floor,
1200 New Jersey Avenue SE., Washington, DC 20590-0001, Telephone (202)
366-4595.
Comments are invited on:
(a) The need for the proposed collection of information for the
proper performance of the functions of the agency, including whether
the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the
revised collection of information, including the validity of the
methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques.
Send comments directly to the Office of Management and Budget,
Office of Information and Regulatory Affairs, Attn: Desk Officer for
the Department of Transportation, 725 17th Street NW., Washington, DC
20503. Comments should be submitted on or prior to June 1, 2012.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It would not result in costs of
$141 million, adjusted for inflation, or more in any one year to either
state, local, or tribal governments, in the aggregate, or to the
private sector, and is the least burdensome alternative that achieves
the objective of the proposed rulemaking.
National Environmental Policy Act
PHMSA analyzed this proposed rule in accordance with section
102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332),
the Council on Environmental Quality regulations (40 CFR Parts 1500-
1508), and DOT Order 5610.1C, and has preliminarily determined that
this action will not significantly affect the quality of the human
environment. A preliminary environmental assessment of this rulemaking
is available in the docket and PHMSA invites comment on environmental
impacts of this rule, if any.
Executive Order 13132
PHMSA has analyzed this proposed rule according to the principles
and criteria of Executive Order 13132 (``Federalism''). A rule has
implications for federalism under Executive Order 13132 if it has a
substantial direct effect on state or local governments, on the
relationship between the national government and the states, or on the
distribution of powers and responsibilities among the various levels of
government.
The Federal pipeline safety statutes in 49 U.S.C. 60101, et seq.,
create a strong Federal-state partnership for ensuring the safety of
the Nation's interstate and intrastate pipelines. That partnership
permits states to regulate intrastate pipelines after they certify to
PHMSA, among other things, that they have and are enforcing standards
at least as stringent as the Federal requirements, and are promoting a
damage prevention program. PHMSA provides Federal grants to states to
cover a large portion of their pipeline safety program expenses, and
PHMSA also makes grants available to assist in improving the overall
quality and effectiveness of their damage prevention programs.
In recognition of the value of this close partnership, PHMSA has
made and continues to make every effort to ensure that our state
partners have the
[[Page 19832]]
opportunity to provide input on this rulemaking. For example, at the
ANPRM stage, PHMSA sought advice from the National Association of State
Pipeline Safety Representatives (NAPSR) and offered NAPSR officials the
opportunity to meet with PHMSA and discuss issues of concern to the
states. As a result of these consultation efforts with state officials
and their comments on the ANPRM, PHMSA became aware of state concerns
regarding the rigorousness of the criteria for program effectiveness.
PHMSA has taken these concerns into account in developing the proposed
criteria in the NPRM. State and local governments will be able to raise
any other federalism issues during the comment period for this NPRM and
we invite state and local officials with an interest in this rulemaking
to comment on any impacts to their governments.
Under the proposed rule, Federal administrative enforcement against
an excavator that violates damage prevention requirements would be
taken only in the demonstrable absence of enforcement by a state
authority. Additionally, the proposed rule would establish a framework
for evaluating state programs individually so that the exercise of
Federal administrative enforcement in one state has no effect on the
ability of all other states to continue to exercise state enforcement
authority. This proposed rule would not preempt state law in the state
where the violation occurred, or any other state, but would authorize
Federal enforcement in the limited instance explained above. Finally, a
state that establishes an effective damage prevention enforcement
program has the ability to be recognized by PHMSA as having such a
program.
For the reasons discussed above, and based on the results of our
consultations with the states, PHMSA has concluded the proposed rule
will not have a substantial direct effect on the states, the
relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
government. In addition, this proposed rule does not impose substantial
direct compliance costs on state and local governments. Accordingly,
the consultation and funding requirements of Executive Order 13132 do
not apply.
Executive Order 13211
This proposed rule is not a ``significant energy action'' under
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use). It is not
likely to have a significant adverse effect on supply, distribution, or
energy use. Further, the Office of Information and Regulatory Affairs
has not designated this proposed rule as a significant energy action.
Privacy Act Statement
Anyone may search the electronic form of all comments received for
any of our dockets. You may review DOT's complete Privacy Act Statement
in the Federal Register published on April 11, 2000 (70 FR 19477) or
visit http://dms.dot.gov.
List of Subjects
49 CFR Part 196
Administrative practice and procedure; Pipeline safety; Reporting
and recordkeeping requirements.
49 CFR Part 198
Grant programs-transportation; Pipeline safety; Reporting and
recordkeeping requirements.
For the reasons discussed in the preamble, PHMSA proposes to amend
49 CFR Subchapter D as follows:
1. Part 196 is added to read as follows:
PART 196--PROTECTION OF UNDERGROUND PIPELINES FROM EXCAVATION
ACTIVITY
Subpart A--General
Sec.
196.1 What is the purpose and scope of this part?
196.3 Definitions.
Subpart B--One-Call Damage Prevention Requirements
Sec.
196.101 What is the purpose and scope of this subpart?
196.103 What must an excavator do to protect underground pipelines
from excavation-related damage?
196.105 Are there any exceptions to the requirement to use one-call
before digging?
196.107 What must an excavator do if a pipeline is damaged by
excavation activity?
196.109 What must an excavator do if damage to a pipeline from
excavation activity causes a leak where product is released from the
pipeline?
196.111 What if a pipeline operator fails to respond to a locate
request or fails to accurately locate and mark its pipeline?
Subpart C--Administrative Enforcement Process
Sec.
196.201 What is the purpose and scope of this subpart?
196.203 What is the administrative process PHMSA will use to conduct
enforcement proceedings for alleged violations of excavation damage
prevention requirements?
196.205 Can PHMSA assess administrative civil penalties for
violations?
196.207 What are the maximum administrative civil penalties for
violations?
196.209 May other civil enforcement actions be taken?
196.211 May criminal penalties be imposed?
Authority: 49 U.S.C. 60101 et seq.
Subpart A--General
Sec. 196.1 What is the purpose and scope of this part?
This part prescribes the minimum requirements that excavators must
follow to protect underground pipelines from excavation-related damage.
It also establishes an enforcement process for violations of these
requirements.
Sec. 196.3 Definitions.
Damage or excavation damage means any impact that results in the
need to repair or replace a pipeline due to a weakening, or the partial
or complete destruction, of the pipeline, including, but not limited
to, the pipe, its protective coating, lateral support, cathodic
protection or the housing for the line device or facility.
Excavation means any operation using non-mechanical or mechanical
equipment or explosives used in the movement of earth, rock or other
material below existing grade. This includes, but is not limited to,
augering, blasting, boring, demolishing, digging, ditching, dredging,
drilling, driving-in, grading, plowing-in, pulling-in, ripping,
scraping, trenching, and tunneling. This does not include homeowners
excavating on their own property with hand tools.
Excavator means any person or legal entity, public or private,
proposing to or engaging in excavation.
One-call means a notification system through which a person can
notify pipeline operators of planned excavation to facilitate the
locating and marking of any pipelines in the excavation area.
Pipeline means all parts of those physical facilities through which
gas, carbon dioxide, or a hazardous liquid moves in transportation,
including, but not limited to, pipe, valves, and other appurtenance
attached or connected to pipe, pumping units, compressor units,
metering stations, regulator stations, delivery stations, holders,
fabricated assemblies, and breakout tanks.
[[Page 19833]]
Subpart B--One-Call Damage Prevention Requirements
Sec. 196.101 What is the purpose and scope of this subpart?
This subpart prescribes the minimum requirements that excavators
must follow to protect underground pipelines from excavation-related
damage.
Sec. 196.103 What must an excavator do to protect underground
pipelines from excavation-related damage?
Prior to commencing excavation activity where an underground gas or
hazardous liquid pipeline may be present, the excavator must:
(a) Use an available one-call system before excavating to notify
operators of underground pipeline facilities of the timing and location
of the intended excavation;
(b) If underground pipelines exist in the area, wait for the
pipeline operator to arrive at the excavation site and establish and
mark the location of its underground pipeline facilities before
excavating;
(c) Excavate with proper regard for the marked location of
pipelines an operator has established by respecting the markings and
taking all practicable steps to prevent excavation damage to the
pipeline; and
(d) Make additional use of one-call as necessary to obtain locating
and marking before excavating if additional excavations will be
conducted at other locations.
Sec. 196.105 Are there any exceptions to the requirement to use one-
call before digging?
Homeowners using only hand tools, rather than mechanized excavating
equipment, on their own property are not required to use a one-call
prior to digging.
Sec. 196.107 What must an excavator do if a pipeline is damaged by
excavation activity?
If a pipeline is damaged in any way by excavation activity, the
excavator must report such damage to the pipeline operator, whether or
not a leak occurs, at the earliest practicable moment following
discovery of the damage.
Sec. 196.109 What must an excavator do if damage to a pipeline from
excavation activity causes a leak where product is released from the
pipeline?
If damage to a pipeline from excavation activity causes the release
of any flammable, toxic, or corrosive gas or liquid from the pipeline
that may endanger life or cause serious bodily harm or damage to
property or the environment, the excavator must immediately report the
release of hazardous products to appropriate emergency response
authorities by calling 911. Upon calling the 911 emergency telephone
number, the excavator may exercise discretion as to whether to request
emergency response personnel be dispatched to the damage site.
Sec. 196.111 What if a pipeline operator fails to respond to a locate
request or fails to accurately locate and mark its pipeline?
PHMSA may enforce existing requirements applicable to pipeline
operators, including those specified in 49 CFR 192.614 and 195.442 and
49 U.S.C. 60114 if a pipeline operator fails to respond to a locate
request or fails to accurately locate and mark its pipeline. The
limitation in Sec. 60114(f) does not apply to enforcement taken
against pipeline operators and excavators working for pipeline
operators.
Subpart C--Enforcement
Sec. 196.201 What is the purpose and scope of this subpart?
This subpart describes the enforcement authority and sanctions
exercised by the Associate Administrator, OPS for achieving and
maintaining pipeline safety under this Part. It also prescribes the
procedures governing the exercise of that authority and the imposition
of those sanctions.
Sec. 196.203 What is the administrative process PHMSA will use to
conduct enforcement proceedings for alleged violations of excavation
damage prevention requirements?
PHMSA will use the existing adjudication process for alleged
pipeline safety violations set forth in 49 CFR Part 190, Subpart B.
This process provides for notification that a probable violation has
been committed, a 30-day period to respond including the opportunity to
request an administrative hearing, the issuance of a final order, and
the opportunity to petition for reconsideration.
Sec. 196.205 Can PHMSA assess administrative civil penalties for
violations?
Yes. When the Associate Administrator, OPS has reason to believe
that a person has violated any provision of the 49 U.S.C. 60101 et seq.
or any regulation or order issued thereunder, including a violation of
excavation damage prevention requirements under this Part and 49 U.S.C.
60114(d) in a state with an excavation damage prevention law
enforcement program PHMSA has deemed inadequate under 49 CFR Part 198,
Subpart D, PHMSA may conduct a proceeding to determine the nature and
extent of the violation and to assess a civil penalty.
Sec. 196.207 What are the maximum administrative civil penalties for
violations?
The maximum administrative civil penalties that may be imposed are
specified in 49 U.S.C. Sec. 60122.
Sec. 196.209 May other civil enforcement actions be taken?
Whenever the Associate Administrator, OPS has reason to believe
that a person has engaged, is engaged, or is about to engage in any act
or practice constituting a violation of any provision of 49 U.S.C.
60101 et seq., or any regulations issued thereunder, PHMSA, or the
person to whom the authority has been delegated, may request the
Attorney General to bring an action in the appropriate U.S. District
Court for such relief as is necessary or appropriate, including
mandatory or prohibitive injunctive relief, interim equitable relief,
civil penalties, and punitive damages as provided under 49 U.S.C.
60120.
Sec. 196.211 May criminal penalties be imposed for violations?
Yes. Criminal penalties may be imposed as specified in 49 U.S.C.
60123.
PART 198--REGULATIONS FOR GRANTS TO AID STATE PIPELINE SAFETY
PROGRAMS
2. The authority citation for part 198 is amended to read as
follows:
Authority: 49 U.S.C. 60101 et seq.; 49 U.S.C. 6101 et seq.; 49
CFR 1.53.
3. 49 CFR Part 198 is amended by adding a new Subpart D to read as
follows:
Subpart D--State Damage Prevention Enforcement Programs
Sec.
198.51 What is the purpose and scope of this subpart?
198.53 When and how will PHMSA evaluate state damage prevention
enforcement programs?
198.55 What criteria will PHMSA use in evaluating the effectiveness
of state damage prevention enforcement programs?
198.57 What is the process PHMSA will use to notify a state that its
damage prevention enforcement program appears to be inadequate?
198.59 How may a state respond to a notice of inadequacy?
198.61 How is a state notified of PHMSA's final decision?
198.63 How may a state with an inadequate damage prevention law
enforcement program seek reconsideration by PHMSA?
[[Page 19834]]
Subpart D-- State Damage Prevention Enforcement Programs
Sec. 198.51 What is the purpose and scope of this subpart?
This subpart establishes standards for effective state damage
prevention enforcement programs and prescribes the administrative
procedures available to a state that elects to contest a notice of
inadequacy.
Sec. 198.53 When and how will PHMSA evaluate state excavation damage
prevention law enforcement programs?
PHMSA conducts annual program evaluations and certification reviews
of state pipeline safety programs. PHMSA will also conduct annual
reviews of state excavation damage prevention law enforcement programs.
PHMSA will use the criteria described in Sec. 198.55 as the basis for
the reviews, utilizing information obtained from any state agency or
office with a role in the state's excavation damage prevention law
enforcement program. If PHMSA finds a state's enforcement program
inadequate, PHMSA may take immediate enforcement against excavators in
that state. The state will have five years from the date of the finding
to make program improvements that meet PHMSA's criteria for minimum
adequacy. A state that fails to establish an adequate enforcement
program in accordance with 49 CFR 198.55 within five years of the
finding of inadequacy may be subject to reduced grant funding
established under 49 U.S.C. 60107. The amount of the reduction will be
determined using the same process PHMSA currently uses to distribute
the grant funding; PHMSA will factor the findings from the annual
review of the excavation damage prevention enforcement program into the
49 U.S.C. 60107 grant funding distribution to state pipeline safety
programs. The amount of the reduction in 49 U.S.C. 60107 grant funding
shall not exceed 10% of prior year funding. If a state fails to
implement an adequate enforcement program within five years of a
finding of inadequacy, the Governor of that state may petition the
Administrator of PHMSA, in writing, for a temporary waiver of the
penalty, provided the petition includes a clear plan of action and
timeline for achieving program adequacy.
Sec. 198.55 What criteria will PHMSA use in evaluating the
effectiveness of state damage prevention enforcement programs?
(a) PHMSA will use the following criteria to evaluate the
effectiveness of a state excavation damage prevention enforcement
program:
(1) Does the state have the authority to enforce its state
excavation damage prevention law through civil penalties?
(2) Has the state designated a state agency or other body as the
authority responsible for enforcement of the state excavation damage
prevention law?
(3) Is the state assessing civil penalties for violations at levels
sufficient to ensure compliance and is the state making publicly
available information that demonstrates the effectiveness of the
state's enforcement program?
(4) Does the enforcement authority (if one exists) have a reliable
mechanism (e.g., mandatory reporting, complaint-driven reporting, etc.)
for learning about excavation damage to underground facilities?
(5) Does the state employ excavation damage investigation practices
that are adequate to determine the at-fault party when excavation
damage to underground facilities occurs?
(6) At a minimum, does the state's excavation damage prevention law
require the following:
a. Excavators may not engage in excavation activity without first
using an available one-call notification system to establish the
location of underground facilities in the excavation area.
b. Excavators may not engage in excavation activity in disregard of
the marked location of a pipeline facility as established by a pipeline
operator.
c. An excavator who causes damage to a pipeline facility:
i. Must report the damage to the owner or operator of the facility
at the earliest practical moment following discovery of the damage; and
ii. If the damage results in the escape of any flammable, toxic, or
corrosive gas or liquid that may endanger life or cause serious bodily
harm or damage to property, must promptly report to other appropriate
authorities by calling the 911 emergency telephone number or another
emergency telephone number.
(7) Does the state limit exemptions for excavators from its
excavation damage prevention law? A state must provide to PHMSA a
written justification for any exemptions for excavators from state
damage prevention requirements. PHMSA will make the written
justifications available to the public.
(b) PHMSA may also consider individual enforcement actions taken by
a state in evaluating the effectiveness of a state's damage prevention
enforcement program.
Sec. 198.57 What is the process PHMSA will use to notify a state that
its damage prevention enforcement program appears to be inadequate?
PHMSA will issue a notice of inadequacy to the state in accordance
with 49 CFR Sec. 190.5. The notice will state the basis for PHMSA's
determination that the state's damage prevention enforcement program
appears inadequate for purposes of this subpart and set forth the
state's response options.
Sec. 198.59 How may a state respond to a notice of inadequacy?
A state receiving a notice of inadequacy will have 30 days from
receipt of the notice to submit a written response to the PHMSA
official that issued the notice. In its response, the state may include
information and explanations concerning the alleged inadequacy or
contest the allegation of inadequacy and request the notice be
withdrawn.
Sec. 198.61 How is a state notified of PHMSA's final decision?
PHMSA will issue a final decision on whether the state's damage
prevention enforcement program has been found inadequate in accordance
with 49 CFR 190.5.
Sec. 198.63 How may a state with an inadequate excavation damage
prevention law enforcement program seek reconsideration by PHMSA?
At any time following a finding of inadequacy, the state may
petition PHMSA to reconsider such finding based on changed
circumstances including improvements in the state's enforcement
program. Upon receiving a petition, PHMSA will reconsider its finding
of inadequacy promptly and will notify the state of its decision on
reconsideration promptly but no later than the time of the next annual
certification review.
Issued in Washington, DC on March 26, 2012.
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
[FR Doc. 2012-7550 Filed 3-30-12; 8:45 am]
BILLING CODE 4910-60-P