PHMSA Excavation Enforcement Final Rule

On July 13, 2015, the U.S. Department of transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced  the issuance of a final rule to establish the process for evaluating state excavation damage prevention law enforcement programs and enforcing minimum federal damage prevention standards in states where damage prevention law enforcement is deemed inadequate or does not exist.

This final rule amends the federal pipeline safety regulations to establish the following:
• Criteria and procedures PHMSA will use to determine the adequacy of state pipeline excavation damage prevention law enforcement programs
• The administrative process PHMSA will use in determining the adequacy of state excavation damage prevention law enforcement programs
• The federal requirements PHMSA will enforce in states with inadequate excavation damage prevention law enforcement programs
• The adjudication process for administrative enforcement proceedings against excavators where federal authority is exercised

The development of the review 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.

The Rule is NOT an attempt to create a national One Call law, nor is it a takeover of state damage prevention programs. It does not attempt to nullify state damage prevention laws or establish a large federal enforcement regime.

Status of PHMSA’s Determinations of Adequacy
As of the date this issue of Damage Prevention Professional went to print, PHMSA had notified eight states on their status. Three were determined adequate and five were determined inadequate. The remaining states will be notified in the coming months. The status of each state is posted at http://
phmsa.dot.gov/pipeline/safety-awareness-and-outreach/excavator-enforcement/determinations-of-adequacy. The state’s evaluation checklists are not posted, but the notification letters are available for review.

For those states whose enforcement program is deemed inadequate, the checklist (and associated guidance) can be used as a road map to improvement. PHMSA also offers support to states through letters of support, review of proposed legislation and education for stakeholders (including legislators
and staff if necessary).

PHMSA’s Approach to Federal Enforcement
Generally speaking, PHMSA’s philosophy in regards to federal enforcement is strategic and targeted enforcement on a limited basis; they consider federal authority to be a “backstop.” Their primary goal is to encourage states to enforce their own laws. Enforcement under this rule is under 49 CFR 196. PHMSA cannot enforce state laws, nor can it implement enforcement in states with adequate programs. Currently, there are five states in which PHMSA has enforcement authority.

Enforcement: Next Steps
Over the next few months, PHMSA intends to complete all state evaluations and issue determinations letters. In states deemed inadequate, they will work with state stakeholders to notify excavators of potential federal enforcement. A review of their findings from the 2016 evaluations (checklist, process, etc.) will help them develop a plan to work with states deemed inadequate and plan for 2017 evaluations.

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