PHMSA Releases Advanced Notice of Excavation Enforcement Rulemaking

  On October 29, 2009, the U.S. Department of Transportation’s Pipeline and Hazardous Material Safety Administration (PHMSA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Pipeline Safety: Pipeline Damage Prevention Programs. The purpose of the notice is to begin soliciting comments assessing the adequacy of state enforcement of oil and gas pipeline damage prevention laws, and to begin 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.  The PIPES Act gives PHMSA limited "backstop" authority to conduct civil enforcement against excavators in states that have failed to do so effectively if certain conditions are not 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 of Transportation 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." Other information being sought includes potential establishment of the federal standards for excavators that PHMSA would enforce if a state has been found to have an inadequate enforcement program. At a minimum, the standards will include requirements for an excavator to “use an available one-call system before digging, wait the required time, excavate with proper regard for location information or markings established by the pipeline operator, promptly report any damage to the pipeline operator, and report any release of hazardous products to appropriate authorities by calling 911.”  PHMSA is also soliciting 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. PHMSA's goal 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 as the process moves forward. Click here to download a copy of the ANPRM. AGC will formally solicit comments from members and Chapters to incorporate into our initial comments to PHMSA.  In the meantime, AGC would like to encourage members and Chapters to read the ANPRM and share any initial comments and examples of good or bad state damage prevention programs and cooperative efforts. The initial round of comments must be submitted to PHMSA by December 14, 2009. After PHMSA has had an opportunity to review all comments, the agency will begin working on a “proposed rule” that will be subject to another round of comments and possible public hearings. Please direct any questions or comments to Perry L. Fowler at (703) 837-5321 or fowlerp@agc.org.