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Phyllis Harden

Legislative & Special Projects, Pine Bluff Sand & Gravel
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PHMSA Rulemaking Could Mean Federal Enforcement in States

December 3, 2009
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 ANPRM is to begin soliciting comments in order to assess the adequacy of State's damage prevention enforcement regimes for oil, gas and other hazardous material pipelines.  PHMSA will use this information to develop 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. Questions in the ANPRM are specifically geared at States to ascertain the adequacy  of their  damage prevention programs and enforcement  actions taken against excavators that damage underground facilities that convey hazardous materials, natural gas and petroleum. It is imperative that AGC Chapters and members consider the potential impact that federal enforcement of damage prevention law could have on your State's laws and consider how other stakeholder groups in your State will respond to this ANPRM such as utility commissions, one call notification centers, owners of oil and gas pipelines and owners of other underground facilities. This is an opportunity for AGC Chapters to reach out to stakeholders and ascertain the potential impact of federal enforcement in your individual states. AGC and its members are extremely supportive of state one-call programs, and we have been working with states to improve compliance, enforcement, and the effectiveness of one-call and damage prevention programs all over the country. The most successful efforts in this area have come from the joint efforts and joint obligation of the underground facility owners the locating industry, and contractors, which have joined together nationally to create the Common Ground Alliance (CGA). The CGA has been successful creating a cooperative and complementary environment for damage protection. AGC and CGA both support the premise that the best place for enforcement decisions to be made is in the states themselves. The federal government should encourage states to adopt policies and procedures that promote effective one-call programs and allow the states to operate and enforce them. AGC does not support a permanent federal role in enforcing state one-call laws-our position is that it is the state's job to enforce state laws. However in the circumstances that a State's damage prevention program is deemed inadequate federal enforcement should include the following provisions:
  • Federal enforcement should occur only if the state is ignoring enforcement obligations;
  • Federal enforcement should only be necessary until the state achieves a successful program in terms of enforcement; and
  • Most importantly, to be effective, the approach to one-call enforcement must be balanced so that the responsibilities of the pipeline companies (such as locating and marking) are considered equally important as the responsibilities of the excavator (such as contacting one-call and digging with care). True one-call effectiveness is impossible without this recognition of shared responsibility.
AGC of America will  submit comments on the ANPRM as will the Common Ground Alliance (CGA). However,  individual AGC Chapters are best prepared to respond to questions regarding current damage prevention programs and current enforcement in individual states. AGC of America will submit comments based on CGA Best Practices which have been developed over several years based on consensus of all damage prevention stakeholders and serves as the model for many state programs. AGC will also submit comments  specifically addressing questions about developing  an administrative process for Federal enforcement actions, potential establishment of Federal standards for excavators,  adjudication processes and existing requirements applicable to owners and operators of pipeline facilities.  Comments on the ANPRM are due on December 14, 2009 and AGC Chapters are encouraged to contact AGC with any questions, concerns or specific examples of what is working or not working in your state to incorporate into our comments. Click here to learn more about the ANPRM. For additional information please contact Perry L. Fowler at (702)837-5321 or fowlerp@agc.org
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