PHMSA Continues to Strengthen Pipeline Damage Prevention Rules

In April 2015, a local California public works department attempts to widen a freeway access road with heavy digging equipment. In the process, workers damage a high pressure transmission pipeline, causing the release and ignition of natural gas, killing one individual and injuring 11 others.

In February 2013, a third-party contractor installing a cable television line contacts and damages a natural gas pipeline in Kansas City, Missouri. The event resulted in an explosion that levels a popular restaurant, killing one individual and seriously injuring four others.

In July 2010, a private landowner in Georgia failed to make the proper One Call notifications prior to performing road work on his property, inadvertently striking an 8-inch propane pipeline. The incident subsequently resulted in an explosion and fire, killing one individual and injuring the landowner.

The events described above highlight the seriousness of excavation damage-related pipeline incidents, the  frequency they occur in the United States annually, and the variety of ways underground digging activities can impact the safety of natural gas and hazardous liquid pipelines. Additionally, the incidents show that excavators are not always underground utility owners or road crews. An excavator can include government organizations, small businesses, and private citizens.
Excavation damage remains a leading cause of serious pipeline incidents that cause death, injuries and property damage. Since 2005, excavation damage has been attributed to causing 787
pipeline incidents, resulting in 37 fatalities, 150 injuries, and $260 million in property damages. Some of these incidents, like the ones mentioned above, happened in states with existing excavation
damage prevention enforcement programs, allowing them to take prompt and appropriate actions against violators of underground digging laws.

Unfortunately, not every state is equipped with the damage prevention law enforcement resources necessary to be effective in curbing noncompliance. That is why, in July 2015, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule to establish a program for evaluating the effectiveness of state excavation damage prevention law enforcement programs. The final rule strengthens PHMSA’s ability to take enforcement action against excavators who violate pipeline damage prevention One Call requirements in states deemed to have inadequate damage prevention enforcement programs. In such states, PHMSA could take federal action, including issuing civil penalties against excavators who fail to comply with One
Call requirements and damage a pipeline.

PHMSA and its state pipeline safety partners currently have existing authority to take actions against pipeline operators who fail to comply with One Call requirements, and the final rule reiterates the importance of fair and balanced enforcement. With the rulemaking, PHMSA seeks to encourage the adoption of effective state-level
enforcement programs in states that currently do not have, or need to strengthen, such programs. PHMSA will continue to work with stakeholders across the country using a variety of tools, including grants, meetings, letters and other resources, to support strong state damage prevention programs with effective enforcement. PHMSA also
encourages excavators to call 811 before all digging projects to have underground utilities properly located and marked.

The rulemaking updates the federal pipeline safety regulations to establish the following:
• The criteria and procedures PHMSA will use to determine the adequacy of state pipeline excavation damage prevention law enforcement programs;
• The administrative process for states to contest notices of inadequacy from PHMSA should they elect to do so;
• The federal requirements PHMSA will enforce against excavators for violations in states with inadequate enforcement programs; and
• The adjudication process for administrative enforcement proceedings against excavators where federal authority is exercised.

Additionally, the rule establishes seven criteria that will be used to evaluate the effectiveness of a state’s enforcement of its damage prevention laws. The criteria include:

1) Does the state have the authority to enforce its state excavation damage prevention law using civil penalties and other appropriate sanctions for violations?
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 and other appropriate sanctions for violations at levels sufficient to deter noncompliance 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) for learning about excavation damage to underground facilities?
5) Does the state employ excavation damage investigation practices that are adequate to determine the responsible party or parties when excavation damage to underground facilities occurs?
6) At a minimum, do the state’s excavation damage prevention requirements include 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 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 PHMSA regulated natural and other gas or hazardous liquid, 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.

The rule also includes two policy documents that will be used to administer the new federal requirements. The policies are flexible and may change as the enforcement program is developed. The first policy addresses the application of the state program evaluation criteria. In accordance with that policy, states that have not implemented numbers 1 or 2 within the State Evaluation Criteria will be deemed to have inadequate enforcement programs. In addition, states unable to provide records that demonstrate the use of civil penalties and other appropriate sanctions (in accordance with criterion 3) will likely be deemed to have inadequate programs. Failure
to implement any one of the remaining criteria will not result in the state being deemed to have an inadequate program, however, if a state fails to implement several of the remaining criteria, the state could be deemed to have an inadequate enforcement program. To summarize:

• Noncompliance with criteria 1 OR 2 = state enforcement program deemed inadequate;
• Noncompliance with criteria 3 = state enforcement program to be likely deemed inadequate;
• Noncompliance with any single remaining criteria (4-7) will not result in an inadequate rating, but non-compliance with several of the remaining criteria in combination could result in a state program being deemed inadequate.

The rule also includes the standards PHMSA will enforce when taking enforcement action against excavators in states that have been deemed to have inadequate enforcement programs. Those standards are:

Prior to and during excavation activity, 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) Wait for the pipeline operator to arrive at the excavation site and establish and mark the location of its under-ground pipeline facilities before excavating if underground pipelines exist in the area;
(c) Excavate with proper regard for the marked location of pipelines an operator has established by taking all practicable steps to prevent excavation damage to the pipeline;
(d) Make additional use of One Call as necessary to obtain locating and marking before excavating to ensure that underground pipelines are not damaged by excavation.

If a pipeline is damaged in any way by excavation activity, the excavator must promptly report such damage to the pipeline operator, whether or not a leak occurs, at the earliest practicable moment following discovery of the

If damage to a pipeline from excavation activity causes the release of any PHMSA regulated natural gas or hazardous liquid pipeline, the excavator must promptly report the release to appropriate emergency response
authorities by calling the 911 emergency telephone number.

PHMSA has a variety of enforcement tools available for its use. Violators may be subject to a civil penalty not to exceed $200,000 for each violation for each day the violation continues, except that the maximum administrative civil penalty may not exceed $2,000,000 for any related series of violations.

The rule includes the general processes that PHMSA will use to evaluate state enforcement programs. A team is currently developing more detailed strategies, policies, and procedures and PHMSA intends to begin its evaluation of state damage prevention enforcement programs shortly after the rule’s effective date of January 1, 2016. More
information, including the full rule, FAQ’s, timelines and other pertinent information is available at http://phmhqnwas027vg/ pipeline/safety-awareness-and-outreach/ excavator-enforcement.

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