PHMSA Preparing to Release Draft Regulations on Federal Enforcement

In January 2009, AGC met with senior officials from the U.S. Department of Transportation's Pipeline and Hazardous Material Safety Administration (PHMSA). At this meeting PHMSA alerted AGC that it intends to announce an Advanced Notice of Proposed Rulemaking (ANPR) to begin soliciting comments on developing criteria for federal enforcement of damage prevention laws in states that are deemed to have inadequate enforcement of damage prevention laws for excavators, utility/facility owners, one-call centers and professional locaters as mandated by the 2006 PIPES Act.  PHMSA has indicated that it will proceed with the ANPR by the end of this month. The objective of the PIPES Act was for states to develop damage prevention programs.  The legislation provides grants to enable states to succeed in one-call enforcement.  Specifically, Section 2 of the PIPES Act established a new grant program to assist states that have or plan to implement comprehensive 9-point damage prevention programs that include civil penalty enforcement by state authorities for violations of their one-call laws.  The grant program is ongoing.  PHMSA has made state damage prevention program grants for calendar years 2008 and 2009 and will make grants for 2010 by the end of 2009. The PIPES Act gives PHMSA limited "backstop" authority to conduct civil enforcement against excavators in a state that has failed to do so effectively if certain conditions are met.  Specifically, section 2(a) of the PIPES Act limits PHMSA's authority to conduct federal civil enforcement actions 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.'' If PHMSA determines that direct federal enforcement against excavators becomes necessary in a particular state or states, PHMSA will need to undertake a rulemaking to establish procedures for declaring a state's enforcement inadequate, which is a prerequisite to federal civil enforcement against an excavator (who is not a pipeline operator) in that state.  PHMSA will need to establish procedures for declaring state enforcement inadequate through a rulemaking proceeding, and then find a given state to be inadequate using those procedures, before resorting to federal enforcement in that state.  PHMSA's goal is in this process is to minimize the need to declare state damage prevention programs inadequate by working with states to strengthen their own enforcement programs. AGC has been assured that PHMSA will take a balanced approach in the development of enforcement regulations in this rulemaking process and will continue to work with AGC and the Common Ground Alliance (CGA) to ensure that the principles of fairness and shared responsibility are adhered to in the proposed rule. Once the ANPRM is publicly available, AGC will solicit input from members and AGC Chapters.  For additional information contact Perry L. Fowler at fowlerp@agc.org or (703) 837-5321.