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PHMSA Proposes Rule on Federal Enforcement of State Excavation Damage Prevention Programs

April 5, 2012
The long-awaited proposed rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA) on state damage prevention programs was published on Monday, April 2. The 2006 Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES Act) requires PHMSA to enforce damage prevention laws where a state damage prevention program is deemed inadequate to do so. This proposed rule is designed to lay out the criteria PHMSA will use to judge whether a state damage prevention program is adequate and what actions the federal government will take once a state has been deemed inadequate. The rule lays out six criteria to determine the adequacy of a state’s damage prevention program, which are:
  1. Does the state have the authority to enforce its state excavation damage prevention law through civil penalties?
  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 for violations at levels sufficient to ensure compliance 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, etc.) for learning about excavation damage to underground facilities?
  5. Does the state employ excavation damage investigation practices that are adequate to determine the at-fault party when excavation damage to underground facilities occurs?
  6. At a minimum, does the state’s excavation damage prevention law require the following?
    1. 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.
    2. Excavators may not engage in excavation activity in disregard of the marked location of a pipeline facility as established by a pipeline operator.
    3. An excavator who causes damage to a pipeline facility:
      1. Must report the damage to the owner or operator of the facility at the earliest practical moment following discovery of the damage; and,
      2. If the damage results in the escape of any flammable, toxic, or corrosive gas or liquid that may endanger life or cause serious bodily harm or damage to property, 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 outlines the standards that PHMSA would consider enforceable in states determined to have inadequate damage prevention laws. These federal requirements are: A person who engages in demolition, excavation, tunneling, or construction—
  1. may not engage in a demolition, excavation, tunneling, or construction activity in a state that has adopted a one-call notification system without first using that system to establish the location of underground facilities in the demolition, excavation, tunneling, or construction area;
  2. may not engage in such demolition, excavation, tunneling, or construction activity in disregard of location information or markings established by a pipeline facility operator; and
  3. who causes damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property—
    1. may not fail to promptly report the damage to the owner or operator of the facility; and
    2. if the damage results in the escape of any flammable, toxic, or corrosive gas or liquid, may not fail to promptly report to other appropriate authorities by calling the 911 emergency telephone number.
One of the big requests from the excavation community during our comments on the Advance Notice of Proposed Rulemaking was that the term ‘excavator’ applies to all parties doing excavation, including utilities and the contractors working for them. AGC continues to examine the rule for other areas of importance to its members. Any contractor that engages in excavation activity should read the rule. We would welcome any thoughts as AGC formulates its response to this rule, which is due June 1. You can read the proposed rule here. For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org.
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