# Pipeline Safety: Pipeline Damage Prevention Programs

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-17259

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 23, 2015
- **Citation:** 80 FR 43836

## Text

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 196 and 198
[Docket No. PHMSA-2009-0192; Amdt. No. 196-1; 198-7]
RIN 2137-AE43
Pipeline Safety: Pipeline Damage Prevention Programs

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

Pursuant to the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006, this final rule establishes review criteria for State excavation damage prevention law enforcement programs as a prerequisite for PHMSA to conduct an enforcement proceeding against an excavator in the absence of an adequate enforcement program in the State where a pipeline damage prevention violation occurs. This final rule amends the pipeline safety regulations to establish the following: Criteria and procedures for determining the adequacy of State pipeline excavation damage prevention law enforcement programs; an administrative process for making State adequacy determinations; the Federal requirements PHMSA will enforce in States with inadequate excavation damage prevention law enforcement programs; and 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.

DATES:

This final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Sam Hall, Program Manager, PHMSA, by email at
sam.hall@dot.gov
or by telephone at 804-556-4678, or Larry White, Attorney Advisor, PHMSA, by email at
lawrence.white@dot.gov
or by telephone at 202-366-9093.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this final rule is to reduce pipeline accidents and failures resulting from excavation damage by strengthening the enforcement of pipeline damage prevention requirements. Based on incident data PHMSA has received from pipeline operators, excavation damage is a leading cause of natural gas and hazardous liquid pipeline failure incidents.
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Excavation damage means any excavation activity that results in the need to repair or replace a pipeline due to a weakening, or the partial or complete destruction, of the pipeline, including, but not limited to, the pipe, appurtenances to the pipe, protective coatings, support, cathodic protection or the housing for the line device or facility. Better, more effective enforcement of State excavation damage prevention laws, such as the requirement to “call before you dig,” is a key to reducing pipeline excavation damage incidents. Though all States have a damage prevention program, some States may not adequately enforce their State damage prevention laws. Under section 2(a)(1) of the PIPES Act (Pub. L. 109-468), PHMSA developed criteria and procedures for determining whether a State's enforcement of its excavation damage prevention laws is adequate. Under the PIPES Act, such a determination is a prerequisite for PHMSA if the agency finds it necessary to conduct an administrative enforcement proceeding against an excavator for violating Federal excavation standards.

1
Data from the U.S. Department of Transportation, PHMSA Office of Pipeline Safety, Incident and Accident Reports of Gas Distribution, Gas Transmission & Gathering and Hazardous Liquid Pipeline Systems. Pipeline incident and accident summaries are available on PHMSA Stakeholders Communication Web site at:
http://primis.phmsa.dot.gov/comm/Index.htm?nocache=3320.

B. Summary of the Major Provisions of the Regulatory Action

Pursuant to the PIPES Act of 2006, this final rule amends the Federal pipeline safety regulations to establish the following: (1) Criteria and procedures PHMSA will use to determine the adequacy of State pipeline excavation damage prevention law enforcement programs; (2) an administrative process for States to contest notices of inadequacy from PHMSA should they elect to do so; (3) the Federal requirements PHMSA will enforce against excavators for violations in States with inadequate excavation damage prevention law enforcement programs; and (4) the adjudication process for administrative enforcement proceedings against excavators where Federal authority is exercised. The establishment of regulations specifying the criteria that PHMSA will use to evaluate a State's excavation damage prevention law enforcement program is a prerequisite for PHMSA to conduct an enforcement proceeding against an excavator in the absence of an adequate enforcement program in a State where a damage prevention violation occurs.

C. Costs and Benefits

The total first year costs of this rulemaking action is estimated to be $658,145. The following years, the costs are estimated to be approximately $183,145 per year. The total cost of this alternative over 10 years, with a 3% discount rate is $2,084,132 and at a 7% percent discount rate is $1,720,214. The average annual benefits of this alternative range from $4,642,829 to $14,739,141. Evaluating just the lower range of benefits over 10 years results in a total benefit of over $38,000,000, with a 3% discount rate, and over $31,000,000, with a 7% discount rate. Therefore, the estimated benefits of this alternative far outweigh the relatively minor costs, both annually and over ten years.

II. Background

A. Pipeline Incidents Caused by Excavation Damage

Excavation damage is a leading cause of natural gas and hazardous liquid pipeline failure incidents. From 1988 to 2012, 188 fatalities, 723 injuries, 1,678 incidents, and $474,759,544 in estimated property damages were reported as being caused by excavation damage on all PHMSA regulated pipeline systems in the United States, including onshore and offshore hazardous liquid, gas transmission, and gas distribution lines.
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2
Data from the U.S. Department of Transportation, PHMSA Office of Pipeline Safety, Incident and Accident Reports of Gas Distribution, Gas Transmission & Gathering and Hazardous Liquid Pipeline Systems. Pipeline incident and accident summaries are available on PHMSA Stakeholders Communication Web site at:
http://primis.phmsa.dot.gov/comm/Index.htm?nocache=3320.

While excavation damage is the cause of a significant number of all pipeline failure incidents, it is cited as the cause of a relatively higher number of natural gas distribution incidents. In 2005, PHMSA initiated and sponsored an investigation of the risks and threats to gas distribution systems. This investigation was conducted through the efforts of four joint work/study

groups, each of which included representatives of the stakeholder public, the gas distribution pipeline industry, State pipeline safety representatives, and PHMSA. The areas of their investigations included excavation damage prevention. The
Integrity Management for Gas Distribution, Report of Phase I Investigations
(DIMP Report) was issued in December 2005.
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As noted in the DIMP Report, the Excavation Damage Prevention work/study group reached four key conclusions:

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This report is available in the rulemaking docket.

• Excavation damage poses by far the single greatest threat to distribution system safety, reliability, and integrity; therefore, excavation damage prevention presents the most significant opportunity for improving distribution pipeline safety.

• States with comprehensive damage prevention programs that include effective enforcement have a substantially lower probability of excavation damage to pipeline facilities than States that do not. The lower probability of excavation damage translates to a substantially lower risk of serious incidents and consequences resulting from excavation damage to pipelines.

• A comprehensive damage prevention program requires nine important elements to be present and functional for the program to be effective. All stakeholders must participate in the excavation damage prevention process. The elements are:

1. Enhanced communication between operators and excavators.

2. Fostering support and partnership of all stakeholders in all phases (enforcement, system improvement, etc.) of the program.

3. Operator's use of performance measures for persons performing locating of pipelines and pipeline construction.

4. Partnership in employee training.

5. Partnership in public education.

6. Enforcement agencies' role as partner and facilitator to help resolve issues.

7. Fair and consistent enforcement of the law.

8. Use of technology to improve all parts of the process.

9. Analysis of data to continually evaluate/improve program effectiveness.

• Federal action is needed to support the development and implementation of damage prevention programs that includes effective enforcement as a part of the State's pipeline safety program. This is consistent with a State's pipeline safety program's objectives, which are to ensure the safety of the public by addressing threats to the distribution infrastructure. Federal action must include provisions for ongoing funding, such as Federal grants, to support State pipeline safety efforts. This funding is intended to be in addition to, and independent of, existing Federal funding of State pipeline safety programs.

Other studies have indicated that improvements in State damage prevention enforcement can contribute to lowering excavation damage rates. A 2009 Mechanical Damage Final Report, prepared on behalf of PHMSA, concluded that excavation damage continues to be a leading cause of serious pipeline failures and that better one-call enforcement is a key gap in damage prevention.
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In that regard, the report noted that most jurisdictions have established laws to enforce one-call notification compliance; however, the report noted that many pipeline operators consider lack of enforcement to be degrading the effectiveness of one-call programs. The report cited that in Massachusetts, 3,000 violation notices were issued from 1986 to the mid-1990s, contributing to a decrease of third-party damage incidents on all types of facilities from 1,138 in 1986 to 421 in 1993. The report also cited findings from another study that enforcement of the one-call notification requirement was the most influential factor in reducing the probability of pipeline strikes and that the number of pipeline strikes is proportionate to the degree of enforcement.
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Mechanical Damage Final Report, Michael Baker Jr., Inc., April 2009.

5
Effectiveness of Prevention Methods for Excavation Damage, Chen, Q. and Chebaro, M., C FER Report L110, June 2006.

With respect to the effectiveness of current regulations, the report stated that an estimated two-thirds of pipeline excavation damage is caused by third parties and found that the problem is compounded if the pipeline damage is not promptly reported to the pipeline operator so that corrective action can be taken. It also noted “when the oil pipeline industry developed the survey for its voluntary spill reporting system—known as the Pipeline Performance Tracking System—it recognized that damage to pipelines, including that resulting from excavation, digging, and other impacts, is also precipitated by operators (first parties) and their contractors (second parties).”

Finally, the report found that for some pipeline excavation damage data that was evaluated, “in more than 50 percent of the incidents, one-call associations were not contacted first.” In addition, “failure to take responsible care, to respect the instructions of the pipeline personnel, and to wait the proper time accounted for 50 percent of the incidents.”

B. State Damage Prevention Programs

States have historically been the primary enforcers of pipeline damage prevention requirements, and while this final rule will allow PHMSA to conduct Federal enforcement where necessary, PHMSA's view is that States should remain the primary enforcers of these requirements to the greatest extent possible. In analyzing the need for Federal enforcement authority, PHMSA notes that there is considerable variability among the States in terms of physical geography, population density, underground infrastructure, excavation activity, and economic activity. For example, South Dakota is a rural, agricultural State with a relatively low population density. In contrast, New Jersey is more densely populated and is host to a greater variety of land uses, denser underground infrastructure, and different patterns of excavation activity. These differences between States equate to differences in the risk of excavation damage to underground infrastructure, including pipelines. Denser population often means denser underground infrastructure; rural and agricultural States have different underground infrastructure densities and excavation patterns than more urbanized States.

There is no single, comprehensive national damage prevention law setting forth requirements for excavators. On the contrary, all 50 States in the United States have a law designed to prevent excavation damage to underground utilities. However, these State laws vary considerably, and no two State laws are identical. Therefore, excavation damage prevention stakeholders in each State are subject to different legal and regulatory requirements. Variances in State laws include excavation notice requirements, damage reporting requirements, exemptions from the requirements of the laws for excavators and/or utility operators, provisions for enforcement of the laws, and many others. PHMSA has developed a tool to better understand the variability in these State laws at
http://primis.phmsa.dot.gov/comm/DamagePreventionSummary.htm.

C. PHMSA Damage Prevention Efforts

Prior to developing this final rule, PHMSA has made extensive efforts over many years to improve excavation damage prevention as it relates to

pipeline safety. These efforts have included outreach, grants, and funding of cooperative agreements with a wide spectrum of excavation damage prevention stakeholders including:

• Public and community organizations

• Excavators and property developers

• Emergency responders

• Local, State, and Federal government agencies

• Pipeline and other underground facility operators

• Industry trade associations

• Consensus standards organizations

• Environmental organizations

These initiatives are described in detail in the Advance Notice of Proposed Rulemaking (ANPRM) on this subject that PHMSA published in the
Federal Register
on October 29, 2009 (74 FR 55797).

D. The Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006.

On December 29, 2006, PHMSA's pipeline safety program was reauthorized by the enactment of the PIPES Act. The PIPES Act provides for enhanced safety and environmental protection in pipeline transportation, enhanced reliability in the transportation of the Nation's energy products by pipeline, and other purposes. Major portions of the PIPES Act focus on damage prevention, including additional resources in the form of State damage prevention grants, clear program guidelines as well as additional enforcement authority to encourage States to develop and sustain effective excavation damage prevention programs. The PIPES Act identifies nine elements that effective damage prevention programs should include. These are essentially identical to the nine elements noted in the DIMP Report discussed in the previous subsection.

The PIPES Act gave PHMSA limited authority to conduct administrative civil enforcement proceedings against excavators who damage pipelines in a State that has failed to adequately enforce its excavation damage prevention laws. Specifically, Section 2 of the PIPES Act provides that the Secretary of Transportation may take civil enforcement action against excavators who:

1. Fail to use the one-call notification system in a State that has adopted a one-call notification system before engaging in demolition, excavation, tunneling, or construction activity to establish the location of underground facilities in the demolition, excavation, tunneling, or construction area;

2. Disregard location information or markings established by a pipeline facility operator while engaging in demolition, excavation, tunneling, or construction activity; and

3. Fail to report excavation damage to a pipeline facility to the owner or operator of the facility promptly, and report to other appropriate authorities by calling the 911 emergency telephone number 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.

Section 2 of the PIPES Act limited the Secretary's ability to take civil enforcement action against these excavators unless the Secretary determined that the State's enforcement of its damage prevention laws is inadequate to protect safety.

E. Advance Notice of Proposed Rulemaking

On October 29, 2009, PHMSA published an ANPRM (74 FR 55797) to seek feedback and comments regarding the development of criteria and procedures for determining whether States are adequately enforcing their excavation damage prevention laws and for conducting Federal administrative enforcement, if necessary. The ANPRM also outlined PHMSA's excavation damage prevention initiatives and described the requirements of the PIPES Act, which authorizes PHMSA to conduct this rulemaking action. The comments received on the ANPRM were generally supportive of the need for this rulemaking.

F. Notice of Proposed Rulemaking

On April 2, 2012, PHMSA published a Notice of Proposed Rulemaking (NPRM) (77 FR 19800) that reflected the comments and input received in connection with the ANPRM. The NPRM proposed to respond to the congressional mandate specified in Section 2 of the PIPES Act and included proposed amendments to Title 49, Code of Federal Regulations (CFR) to establish the following:

1. Criteria and procedures PHMSA would use to determine the adequacy of State pipeline excavation damage prevention law enforcement programs. PHMSA would first need to determine that the State's enforcement program is inadequate before conducting an administrative enforcement proceeding against an excavator for violating Federal requirements;

2. An administrative process for States to contest notices of inadequacy from PHMSA should the States elect to do so;

3. The Federal requirements PHMSA would enforce in States with inadequate excavation damage prevention law enforcement programs; and

4. The adjudication process for administrative enforcement proceedings against excavators where Federal authority is exercised.

III. Advisory Committees Meeting

On December 12, 2012, the Gas Pipeline Advisory Committee
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and the Liquids Pipeline Advisory Committee
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met jointly in Alexandria, Virginia. The Committees are statutorily mandated advisory committees that advise PHMSA on proposed safety standards, risk assessments, and safety policies for natural gas and hazardous liquids pipelines. Both committees were established under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 1) and the pipeline safety laws (49 U.S.C. 60115). Each committee consists of 15 members, with membership evenly divided among the Federal and State governments, the regulated industry, and the public. The Committees advise PHMSA on the technical feasibility, practicability, and cost-effectiveness of each proposed pipeline safety standard.

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Officially designated as the Technical Pipeline Safety Standards Committee.

7
Officially designated as the Technical Hazardous Liquid Pipeline Safety Standards Committee.

During the meeting, the Committees considered the NPRM to establish excavation damage prevention enforcement actions applicable to third-party excavators. To assist the Committees in their deliberations, PHMSA presented a description and summary of the major issues for comment. These issues are (1) the criteria for evaluating State enforcement programs, (2) the Federal excavation standard, and (3) the incentives for States to implement adequate enforcement programs.

After discussion, both Committees separately voted to recommend that PHMSA implement the NPRM with certain changes. Specifically, the Committees recommended as follows:

(1) The Liquids Advisory Committee voted unanimously, and the gas advisory committee voted 10-to-1 that the Notice of Proposed Rulemaking as published in the
Federal Register
, in terms of the criteria for evaluating State enforcement programs, is technically feasible, reasonable, cost-effective, and practicable if the following changes are considered:

• PHMSA develops a policy, incorporated into the preamble of the final rule, that clarifies the scope and applicability of the State evaluation criteria. The policy will address the

relative importance and intent of each of the criteria and the three items identified in paragraph 9 of a document provided by member Pierson.
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At the Advisory Committees' meeting, member Pierson representing the pipeline industry submitted a written recommendation for the members' consideration.

The three items of paragraph 9 are:

• PHMSA should look beyond enforcement actions in evaluating a State damage prevention program. PHMSA should consider using a broad range of factors, such as a State's investigation processes, standards for excavators, excavator education efforts, and commitment to continued improvement.

• The criteria to determine whether a State damage prevention program is deemed adequate should also include consideration of whether the State's one-call centers are required to provide a mandatory positive response to locate requests. A mandatory positive response will ensure that an excavator is aware of whether owners/operators have marked the requested area prior to the beginning of an excavation, consistent with Common Ground Alliance (CGA) Best Practice 4-9.

• To engage stakeholders in the process of determining the adequacy of a State's program, the administrative process for States should be amended to include public comment. PHMSA should accept public comment on the adequacy of a State's damage prevention program.

The Liquids Advisory Committee voted unanimously and the Gas Advisory Committee voted 10-to-1 to recommend that PHMSA implement the NPRM with the changes reflected.

(2) Both Committees unanimously voted that the NPRM as published in the
Federal Register
, in terms of the proposed Federal excavation standard, is technically feasible, reasonable, cost-effective, and practicable if the following changes are considered:

• Eliminate the homeowner exemption.

• PHMSA develops a policy, incorporated into the preamble of the final rule that clarifies the scope and applicability of the Federal excavation standard. The policy will address triggers for Federal enforcement, how PHMSA will consider State exemptions in enforcement decisions, and how the Federal excavation standard will be applied in States with inadequate enforcement programs.

• In addition, the items 2 through 5 and 7 as provided by member Pierson, should be considered for incorporation into the final rule (including the policy as appropriate).

The items are:

196.109—Discretion to Dispatch 911 Emergency Personnel

• PHMSA's proposed § 196.109 states that, “Upon calling the 911 emergency telephone number, the excavator may exercise discretion as to whether to request emergency response personnel be dispatched to the damage site.” PHMSA should eliminate the discretion of the excavator in determining whether emergency personnel should be dispatched.

196.103—Excavator Responsibilities

• To foreclose ignorance as a reason for noncompliance, PHMSA should edit § 196.103, which lists an excavator's obligations to protect underground pipelines from excavation-related damage. Section 196.103 should be revised to read “Prior to commencing excavation activity the excavator must:”

196.107 & 196.109—Stop Work Provisions

• A “stop work” provision should be incorporated into the regulations, which would require excavators to stop work if a pipeline is damaged in any way by excavation activity until the operator of the pipeline has had an opportunity to assess the damage. Consistent with CGA Best Practice 5-25, PHMSA should also require the excavator to take reasonable measures to protect those in immediate danger, the general public, property, and the environment until the facility owner/operator or emergency responders have arrived and completed their assessment of the situation.

196.107—Backfilling Locations

• PHMSA should include a requirement that an excavator may not backfill a site where damage or a near miss has occurred until the operator has been provided an opportunity to inspect the site.

Reporting Time Frame

• PHSMA should not include an upper time frame for reporting emergency release of hazardous products to appropriate authorities by calling 911. Excavators should “promptly” report incidents.

(3) The liquids advisory committee voted 8-to-1, and the gas advisory committee voted 8-to-3, that the NPRM as published in the
Federal Register
, in terms of the incentives for States to implement adequate enforcement programs, is technically feasible, reasonable, cost-effective, and practicable if the following changes are considered:

• Retain the potential penalty to base grants but consider lowering the percentage that may be affected.

• Develop a policy, incorporated into the preamble of the final rule that clarifies how base grants will be calculated by including the State program evaluation criteria defined in the final rule.

• Reduce the grace period (§ 198.53) from 5 years to 3 years.

• Ensure the Governors of States with inadequate enforcement are directly informed of PHMSA's findings, including potential consequences to base grant funding.

PHMSA's Response to the Committees' Recommendations

With respect to Item 1, PHMSA has considered the Committees' recommended changes to the criteria for evaluating State enforcement programs. PHMSA has developed a policy, outlined below in this preamble, which clarifies the scope and applicability of the State evaluation criteria. The policy addresses the relative importance and intent of each of the criteria.

PHMSA has also considered the three items identified in paragraph 9 of the document provided by member Pierson. With regard to the first item, which addresses the factors PHMSA should consider when evaluating State enforcement programs, PHMSA believes that the seven criteria listed in section § 198.55 of this final rule are adequate for evaluating the effectiveness of a State damage prevention enforcement program. PHMSA recognizes that there are many factors, such as excavator education and continual improvement, which contribute to effective damage prevention programs; however, this final rule is intended to address damage prevention enforcement and not other program elements.

With regard to the second item offered by member Pierson, the term “positive response” refers to communication with the excavator prior to excavation to ensure that all contacted pipeline operators have located and marked their underground facilities. PHMSA agrees that positive response ensures that an excavator is aware of whether operators have marked an area prior to the beginning of excavation. PHMSA supports CGA Best Practice 4-9. However, PHMSA did not propose in the NPRM to review States' use of positive response in determining the adequacy of State enforcement programs, which means that the concept has not been subject to public or stakeholder review. In addition, PHMSA believes that positive response is outside the scope of this rulemaking,

which is focused on evaluating State enforcement programs. Therefore, PHMSA has not included positive response in the criteria listed in § 198.55 of this final rule.

PHMSA also did not propose in the NPRM to engage stakeholders in the process of determining the adequacy of a State's enforcement program, as suggested in the third item from member Pierson. Like positive response, the concept of stakeholder review of State programs has not been subject to stakeholder and public review. Additionally, PHMSA believes that engaging stakeholders in determining the adequacy of State programs would be overly cumbersome for both PHMSA and the States and would result in significant delays in the determination process.

With respect to Item 2, PHMSA has considered the Committees' recommendation to consider changes to the proposed Federal excavation standard. In response to the Committees' recommendation, PHMSA has eliminated the homeowner exemption originally proposed in § 196.105. PHMSA eliminated the homeowner exemption because homeowners excavating on their own property without first calling 811 poses a significant risk of excavation damage to pipelines. PHMSA has also developed a policy, incorporated into the preamble of this final rule, which clarifies the scope and applicability of the Federal excavation standard. The policy addresses triggers for Federal enforcement, how PHMSA will consider State exemptions in enforcement decisions, and how the Federal excavation standard will be applied in States with inadequate enforcement programs. This policy document will be posted on the agency's Web site.

PHMSA also addressed the other items provided by member Pierson. PHMSA has eliminated the phrase, “Upon calling the 911 emergency telephone number, the excavator may exercise discretion as to whether to request emergency response personnel be dispatched to the damage site” from § 196.109 and the phrase, “where an underground gas or hazardous liquid pipeline may be present” from § 196.103. With regard to §§ 196.107 and 196.109, PHMSA has not incorporated a “stop work” provision into the regulation. This provision was not proposed in the NPRM and has not received review from stakeholders and the public. Likewise, PHMSA has not incorporated requirements consistent with CGA Best Practice 5-25 for the same reason. With regard to § 196.107, PHMSA has not included in the final rule a provision disallowing backfilling because the provision was not proposed in the NPRM and has not received review from stakeholders and the public. With regard to the Reporting Time Frame, PHMSA has modified the proposed § 196.109 to reflect the recommendations.

With regard to Item 3, PHMSA has considered the Committees' recommendation to consider changes to the proposed incentives for States to implement adequate enforcement programs. As suggested, PHMSA has retained the potential penalty to base grants and has lowered the percentage of base grants that may be affected from 10 percent to four percent. However, PHMSA has not reduced the grace period noted in § 198.53 from 5 years to 3 years. PHMSA believes that some States may need a full 5 years to successfully update their State damage prevention laws to implement an adequate enforcement program. PHMSA has also developed a policy, incorporated into this preamble, which clarifies how base grants will be calculated by including the State program evaluation criteria defined in § 198.55. The policy also addresses PHMSA's process for notifying Governors of States with inadequate programs, including potential consequences to base grant funding. PHMSA reserves the right to modify these policies in the future, if necessary.

Policies

PHMSA will prepare stand-alone documents and post them on the agency's Web site for the following two policies: State Enforcement Program Evaluation Criteria, and Federal Enforcement Policy.

State Enforcement Program Evaluation Criteria

The criteria PHMSA will use to evaluate the adequacy of State damage prevention law enforcement programs are listed in § 198.55 of this final rule. The criteria are:

• Does the State have the authority to enforce its State excavation damage prevention law using civil penalties and other appropriate sanctions for violations?

• Has the State designated a State agency or other body as the authority responsible for enforcement of the State excavation damage prevention law?

• Is the State assessing civil penalties and other appropriate sanctions for violations at levels sufficient to deter noncompliance and is the State making publicly available information that demonstrates the effectiveness of the State's enforcement program?

• Does the enforcement authority (if one exists) have a reliable mechanism (
e.g.,
mandatory reporting, complaint-driven reporting) for learning about excavation damage to underground facilities?

• Does the State employ excavation damage investigation practices that are adequate to determine the responsible party or parties when excavation damage to underground facilities occurs?

• At a minimum, do the State's excavation damage prevention requirements include the following:

a. 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.

b. Excavators may not engage in excavation activity in disregard of the marked location of a pipeline facility as established by a pipeline operator.

c. An excavator who causes damage to a pipeline facility:

i. Must report the damage to the operator of the facility at the earliest practical moment following discovery of the damage; and

ii. If the damage results in the escape of any PHMSA regulated natural and other gas or hazardous liquid, must promptly report to other appropriate authorities by calling the 911 emergency telephone number or another emergency telephone number.

• 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 evaluation will involve all of the criteria, and the final determination will be based on the totality of the review. The following policy describes the manner in which PHMSA intends to apply the criteria. As experience with adequacy reviews is gained, PHMSA may modify this approach as necessary.

Criteria 1 and 2 guidance:

• Criteria 1 and 2 are pass/fail.

• If the answer to either of the questions posed in criteria 1 or 2 is “no,” the State excavation damage prevention law enforcement program will likely be deemed inadequate.

Criterion 3 guidance:

• PHMSA will seek records that demonstrate that the State enforcement agency is using its enforcement authority and imposing appropriate sanctions for violations. If a State cannot demonstrate use of its enforcement authority, the State enforcement

program will likely be deemed inadequate.

• PHMSA expects States to maintain records that demonstrate whether the rate of excavation damage incidents is being reduced as a result of enforcement. The result of PHMSA's review of a State's records in this regard will not, by itself, render a State enforcement program inadequate.

• PHMSA expects State enforcement programs to generally make damage prevention law enforcement information and statistics available to the public via a Web site. PHMSA does not expect States to violate any State laws, jeopardize any ongoing enforcement case, or post information that would violate the privacy of individuals as defined by State or Federal law. The result of PHMSA's review of the public availability of a State's information and statistics will not, by itself, render a State enforcement program inadequate.

Criterion 4 guidance:

• PHMSA will review how State enforcement programs learn about excavation damage to underground pipelines. In particular, PHMSA will be looking for reporting mechanisms that encourage parity in the application of enforcement resources. For example, does the reporting mechanism identify potential violations of law by both excavators and pipeline operators? If the State enforcement program learns of violations via road patrols that specifically target excavators without valid excavation tickets, how does the State also learn about violations of other provisions of State damage prevention laws, such as operators' failure to locate and mark pipelines? Also, PHMSA will review the State's methods for making stakeholders aware of the process and requirements for reporting damage incidents to the enforcement authority.

• The result of PHMSA's review of a State's program under criterion 4 will not, by itself, render a State enforcement program inadequate.

Criterion 5 guidance:

• PHMSA expects State enforcement programs to be balanced with regard to how they apply enforcement authority.

• PHMSA expects enforcement programs to be focused on the responsibilities of not only excavators, but also of utility owners and operators.

• PHMSA seeks patterns of enforcement activity that demonstrate that penalties are applied to the responsible party or parties in excavation damage incidents and not consistently to only one stakeholder group.

• The result of PHMSA's review of a State's program under criterion 5 will not, by itself, render a State enforcement program inadequate.

Criterion 6 guidance:

• PHMSA will review State requirements to ensure they address the basic Federal requirements in the PIPES Act for excavators, such as using an available one-call system.

• The result of PHMSA's review of a State's requirements will not, by itself, render the State's enforcement program inadequate.

Criterion 7 guidance:

• PHMSA expects States to document the exemptions provided in State damage prevention laws for excavators and one-call membership, and any such exemptions should not be too broad. Documentation should include the types of exemptions included in State law and any reason for the exemptions, such as data or other evidence that justifies the exemptions.

• The result of PHMSA's review of a State's program under criterion 7 will not, by itself, render a State enforcement program inadequate.

The criteria are listed in order of greatest to least importance. That is, criteria 1 and 2 and a portion of criterion 3 are pass/fail, while criteria 4 through 7 are not pass/fail. PHMSA may declare a State enforcement program inadequate if the State's program does not satisfy a combination of the criteria as described above. PHMSA will notify in writing the Governor's office or other appropriate State authority of a State deemed to have an inadequate enforcement program.

States that PHMSA deems to have inadequate enforcement programs may be subject to reductions in pipeline safety grant funding as described in § 198.53 of this final rule. PHMSA will use the existing process for calculating base grants but is considering a policy that would incorporate and/or substitute the evaluation criteria in § 198.55 for the criteria that are currently used for evaluating State damage prevention programs. PHMSA may modify its policies, as necessary, for determining how inadequate enforcement programs may impact pipeline safety grant funding.

Federal Enforcement Policy

PHMSA may enforce the Federal excavation standard defined in 49 CFR part 196, as established by this final rule, in States that PHMSA has deemed to have inadequate damage prevention law enforcement programs. The following policy describes the scope and applicability of the Federal excavation standard.

PHMSA may use its enforcement authority, as limited by the law and this final rule, in any excavation damage case involving a violation of this standard in a State where a finding of inadequacy has been made. PHMSA generally will focus its limited resources on serious violations that have the potential to directly impact safety.

PHMSA will determine if Federal enforcement action is warranted on a case-by-case basis. PHMSA will seek to use its enforcement authority in cases where PHMSA believes Federal enforcement against an excavator is appropriate and will deter future infractions (PHMSA already exercises its enforcement authority against pipeline operators who commit violations).

PHMSA is flexible with regard to how it learns about excavation damage incidents that may warrant Federal enforcement action. PHMSA may learn about incidents through complaints from stakeholders, incident reports, the media, and other mechanisms.

PHMSA acknowledges that most State damage prevention laws and regulations are more specific than the Federal excavation standard defined in this final rule. The Federal excavation standard forms the “floor” and sets forth the basic requirements for excavators so that its application can be fair and consistent even in States with very different requirements. When determining whether to take Federal enforcement action for an alleged violation of the Federal excavation standard, PHMSA will be cognizant of the damage prevention practices of the State in which the alleged violation occurred. For example, PHMSA will be sensitive to exemptions, waiting periods, tolerance zones, and other specific requirements that States could have applied to excavators in the State prior to the determination of inadequacy.

IV. Summary and Response to Comments

PHMSA received 40 comments from pipeline trade associations, excavation and construction trade associations, the National Association of Pipeline Safety Representatives (NAPSR), PHMSA State partners, the CGA, State one-call organizations and one-call service providers, utility locating trade associations, the American Farm Bureau Federation (AFBF), the Association of American Railroads (AAR), the Gas Processors Association (GPA), pipeline operators, utility locating companies, pipeline safety consultants, and citizens.

List of Commenters:

1. American Farm Bureau Federation (AFBF)

2. American Gas Association (AGA)

3. American Public Gas Association (APGA)

4. Association of Oil Pipe Lines (AOPL) and American Petroleum Institute (API)

5. Associated General Contractors of America (AGC)

6. Association of American Railroads (AAR)

7. Black Hills Corporation

8. Bob Fenton

9. Center Point Energy (CenterPoint)

10. Common Ground Alliance (CGA)

11. Distribution Contractors Association (DCA)

12. Emily Krafjack (2 separate comments)

13. Emma K.

14. Gas Processors Association (GPA)

15. Industry Perspective (AGA, AGC, AOPL, API, DCA, NUCA, and NULCA)

16. Interstate natural Gas Association of America (INGAA)

17. Iowa Association of Municipal Utilities (IAMU)

18. Iowa One Call

19. Iowa Utilities Board (IUB)

20. Kansas Corporation Commission (KCC)

21. Kern River

22. MidAmerican Energy Company (MidAmerican)

23. Missouri Public Service Commission (Missouri PSC)

24. National Association of Pipeline Safety Representatives (NAPSR)

25. National Grid

26. National Utility Contractors Association of Ohio (NUCA of Ohio)

27. National Utility Contractors Association (NUCA)

28. National Utility Locating Contractors Association (NULCA)

29. New York State Department of Public Service (NPDPS)

30. Northern Natural Gas

31. National Utility Contractors Association of Pennsylvania (NUCA of Pennsylvania)

32. Ohio Gas Association (OGA)

33. Oleksa and Associates, Inc. (Oleksa)

34. Paiute Pipeline Company (Paiute)

35. Pennsylvania One Call System, Inc. (Pennsylvania One Call)

36. Qualified One Call Systems (Oleksa comments repeated)

37. Southwest Gas Corporation (Southwest)

38. Tennessee Regulatory Authority (TRA)

39. Texas Pipeline Association (TPA)

40. Texas Pipeline Safety Coalition

General Comments

Most of the comments were supportive of the NPRM. PHMSA's State partners have concerns regarding the potential reduction of State base grant funding to States with inadequate excavation damage prevention law enforcement programs. A few State partners questioned the authority given to PHMSA by the PIPES Act to take enforcement action in States with inadequate excavation damage prevention law enforcement programs. A few comments were out of the scope of this rulemaking, either because the comments were on a specific State's excavation damage program or because the comments were regarding pipeline safety more generally.

Comments Requesting PHMSA To Include All Nine Elements

Associated General Contractors of America (AGC), Distribution Contractors Association (DCA), National Utility Locating Contractors Association (NULCA), National Utility Contractors Association of Ohio (NUCA of Ohio), and Southwest Gas Corporation (Southwest) commented that not only enforcement but also all other elements should be considered when evaluating the effectiveness of State excavation damage prevention programs.

AGC and DCA suggested that PHMSA take into account all nine elements (as defined in the PIPES Act of 2006) when evaluating the effectiveness of State damage prevention programs and take a holistic and comprehensive approach to reviewing current State damage prevention measures. AGC stated that the proposed standards place too much emphasis on enforcement and the excavator, and too little emphasis on the owner/operator and locators' responsibilities for timely and accurate locates. The AGC is supportive of PHMSA taking a position to evaluate States' overall damage prevention programs but suggests that PHMSA make its intentions clearer in the final rule. NULCA and NUCA stated that because the nine elements are supported by a broad range of stakeholders, including the CGA, they should be the sole basis for the evaluation of State programs.

Response

PHMSA agrees that the overall effectiveness of State damage prevention programs can be assessed by evaluating States' commitment to and implementation of the nine elements. To that end, PHMSA has worked with State partners to conduct regular reviews of State damage prevention programs by characterizing States' level of implementation of the nine elements. The results of these reviews are available on PHMSA's Web site at
http://primis.phmsa.dot.gov/comm/SDPPCDiscussion.htm.
However, the scope of this rulemaking pertains to the enforcement of State excavation damage prevention laws. Section 2 of the PIPES Act states that PHMSA may not conduct an enforcement proceeding unless the State's enforcement program is determined to be inadequate to protect safety. While other aspects of State damage prevention programs are essential to the effectiveness of those programs, the scope of this rulemaking is limited to the enforcement of State damage prevention laws.

With regard to the comment from AGC pertaining to the proposed standards placing too much emphasis on enforcement and the excavator and too little on the owner/operator and locators' responsibilities for timely and accurate locates, PHMSA believes that the final rule appropriately addresses the intent of Congress. PHMSA and its State partners have long had the authority to enforce the existing damage prevention regulations that are applicable to pipeline operators. These existing regulations (49 CFR 192.614 and 195.442) require pipeline operators to develop and implement damage prevention programs and to locate their facilities in an accurate and timely manner when in receipt of an excavation notice. In the context of this final rule, if PHMSA conducts an enforcement proceeding in a State with an inadequate enforcement program, PHMSA will ensure that enforcement is applied to the responsible party, whether it is an excavator or a pipeline operator. PHMSA also actively encourages its State partners to enforce the existing damage prevention regulations that are applicable to pipeline operators.

Comments Recommending That PHMSA Hold Public Meetings/Provide Education

DCA, NUCA, and NUCA of Ohio suggested that PHMSA hold additional public meetings before the agency issues a final rule. DCA and NUCA of Ohio believe the proposed criteria for determining the adequacy of a State damage prevention enforcement program are sufficient, but recommend that, prior to moving forward with its enforcement authority in a given State, PHMSA should invite all government and industry stakeholders to a discussion about the alleged problems with the State's enforcement practices. They recommended that in order to meet Element 2 of the PIPES Act, which calls for participation by operators, excavators, and other stakeholders, PHMSA should ensure that all interested stakeholders are invited to

the table. NUCA stated that the final rule would result in significant impacts to PHMSA's regulated community; therefore, significant outreach and education is needed for stakeholders that will be impacted by this rulemaking action.

The Pennsylvania One Call System, Inc. (Pennsylvania One Call) stated that enforcement should be used as a means of modifying behavior. Pennsylvania One Call advised PHMSA to be mindful of States' different methods to achieve the same end of damage prevention. For example, Pennsylvania's Underground Utility Line Protection Act provides for a range of enforcement tools that include warning letters, administrative sanctions, fines, and criminal penalties to encourage proper behavior by covered parties.

Response

PHMSA gathered considerable stakeholder input that informed the development of the final rule and provided opportunity for public participation and comment. PHMSA published an ANPRM on this topic in 2009 to gather stakeholder input prior to publishing the NPRM. PHMSA also developed a video, made available on the PHMSA Web site, which summarized the NPRM and invited comments.

In the context of this final rule, PHMSA does not intend to invite all government and industry stakeholders to a discussion about the alleged problems with a State's enforcement practices prior to proceeding with enforcement action in a given State. However, PHMSA does welcome the opportunity to participate in those discussions as a matter of course. PHMSA agrees that this rulemaking will require considerable outreach and education for stakeholders impacted by this final rule.

PHMSA is mindful of States' various enforcement methods as described by Pennsylvania One Call. These enforcement methods are effective in many States. PHMSA believes that the ability of a State to enforce its damage prevention law, specifically with civil penalties, is essential to an effective enforcement program because it deters noncompliance and ensures a level playing field for businesses that adhere to the requirements.

Comments Requesting Cost Recovery for Excavators' Downtime

NUCA requested that PHMSA include cost consideration for excavators' downtime when excavation damage is due to pipeline operators' failure to locate and mark pipelines properly. NUCA stated that pipeline owners or operators are often not subject to the same types of penalties that excavators are, are not required to reimburse excavators for any of their expenses, and are often subject to significantly lower fines. NUCA stated that in some States, for example, excavators that damage pipelines must reimburse owners or operators up to three times the expenses, can be prevented from bidding on certain projects, and can be fined up to $10,000. NUCA suggested PHMSA include in the final rule that “where a pipeline is hit because of the failure to locate and mark the pipeline accurately in a timely fashion and the excavator is not at fault, owners or operators and/or their contractors (including locators) should be required to reimburse excavators for their costs.” NUCA stated that this should include any damages to the excavator's equipment or property and any downtime incurred by the excavator while the true location of the pipeline is determined. NUCA stated that because these losses could be significant when an excavator is required to shut down a project due to the pipeline being not marked or marked inaccurately, this problem must be addressed by PHMSA.

Response

This final rule does not infringe upon any party's right or ability to pursue cost recovery related to downtime. As NUCA itself pointed out, downtime is a compensatory liability matter and has nothing to do with damage prevention. It would be an inappropriate use of Federal regulations to entitle any specific group to downtime compensation. Since PHMSA did not propose in the NPRM to include the language suggested by NUCA, the language has not been made available for public comment and cannot be included in the final rule. PHMSA believes downtime is not within the scope of this rulemaking.

Comments Supporting the Proposed Rule

Association of Oil Pipe Lines (AOPL) and American Petroleum Institute (API) are in strong support of the final rule and urge PHMSA to issue and implement a final rule expeditiously to help advance the ultimate goal of zero pipeline incidents. AOPL and API support PHMSA's proposed criteria for evaluating State excavation damage prevention law enforcement programs for minimum adequacy. The Ohio Gas Association (OGA) stated that it endorses PHMSA's efforts to bring national uniformity to the enforcement of pipeline damage prevention laws. The Texas Pipeline Association (TPA) stated that it is supportive of the proposed Federal damage prevention and enforcement requirements as well as the proposed regulations on State program evaluation. TPA recommended that these regulations be adopted in order to encourage effective enforcement.

Ms. Emily Krafjack recommended that PHMSA adopt all proposed regulatory language and noted that all gathering line classes could benefit from the NPRM. Ms. Emma K. commented in general support of pipeline safety.

Response

PHMSA appreciates the comments in support of promulgating a final rule expeditiously.

Comments Opposing the Proposed Rule

The Iowa Utilities Board (IUB), the Kansas Corporation Commission (KCC), and the Tennessee Regulatory Authority (TRA) are not in support of the NPRM. The IUB believes the notification standards in the final rule would conflict with the law of the State in which excavation is to be performed if the State's law includes the definitions used to determine when notice of excavation is required. The IUB agrees with PHMSA that there is no authority for or expectation of PHMSA enforcement of any provision of State law that goes above and beyond what PHMSA is authorized to enforce in 49 U.S.C. 60114(d). The IUB stated that PHMSA must still recognize the system established by State law when considering enforcement of Part 196.

The IUB further indicated that PHMSA does not have authority over excavators except as provided in 49 U.S.C. 60114(d). Nor would 49 CFR part 196 apply to persons other than excavators. The IUB stated that the proposed language of this final rule exceeds the scope of the specific law on which it is based and asserts broader authority than Federal law permits. The IUB stated that if the intent of the proposed § 196.205 is to make the point that PHMSA can take civil penalty action against excavators who violate 49 CFR part 196 provided the conditions of 49 U.S.C. 60114(f) have been met, then the final rule should be clarified. The IUB stated that 49 U.S.C. 60114(f) says PHMSA may find State enforcement is inadequate only if it does not (in PHMSA's estimation) adequately enforce that State's damage prevention laws. The IUB believes that PHMSA does not have the power to challenge a State law due to perceived inadequacies in areas other than adequate enforcement of that State law.

KCC believes PHMSA taking direct enforcement action against excavators will likely cause confusion and uncertainty in the excavator community. State damage prevention laws regulate many types of underground utilities in addition to protecting underground pipelines subject to regulation by PHMSA and subject to the standards established by PHMSA under 49 U.S.C. 60114(d). KCC stated that currently, 49 CFR part 198 requires States to address underground utility damage prevention on their own terms, taking into account the State's demographics and political process to structure laws and regulations best suited for the operations of its regulated community. However, under PHMSA's proposal, KCC believes that the potential exists that on-going attempts to tweak the State law in order to meet PHMSA's evolving “adequacy” requirements may upset the delicate legislative balance established in the Kansas Underground Utility Damage Prevention Act and potentially lead to a double standard: One set of rules for excavators working in the vicinity of natural gas and hazardous liquid pipelines, and another set of rules for all other excavators.

KCC stated that PHMSA proposes to establish its own Federal standards in those States where PHMSA deems the State's enforcement efforts “inadequate” and questioned why PHMSA would not merely enforce the State standards. KCC stated that PHMSA's NPRM does not include any exemptions, whereas the State program includes State-specific exemptions from the requirements of the State program for certain categories of “excavators.” In doing so, PHMSA goes well beyond stepping in to enforce State standards where a determination has been made that the State's enforcement programs are inadequate. KCC stated its view that 49 U.S.C. 60114(f) does not authorize such action.

TRA stated that it is concerned that the approach PHMSA proposes in the NPRM to penalize States that implement and operate pipeline excavation damage prevention law enforcement programs that do not meet what the TRA considers to be potentially ambiguous Federal standards is not sound policy. Rather than using the penalty of withholding funding, the TRA advises PHMSA that an incentive, like increased funding or more flexibility in use of existing funding, is more appropriate for States that implement sufficient pipeline excavation damage prevention law enforcement programs. If PHMSA finds that a State pipeline excavation damage prevention law enforcement program is inadequate, the TRA is concerned that such a finding may be misinterpreted as a finding about a State's efforts to promote pipeline safety through inspections.

TRA commented that review of State excavation damage prevention law enforcement programs is part of PHMSA's annual review of a State's overall pipeline safety program. Therefore, to avoid such misunderstanding by the public, the TRA recommends that if PHMSA finds a State excavation damage prevention enforcement program deficient, PHMSA should clearly state that the finding does not imply that a State's pipeline safety program is inadequate in protecting the public. Also, Texas Pipeline Safety Coalition provided red line edits to the proposed regulatory language.

Response

PHMSA recognizes that the proposed Federal excavation standard is less specific than many existing State damage prevention laws. In particular, State laws are often more specific than the proposed Federal rule in the areas of what constitutes excavation, exemptions established by State laws, notification standards, and what specifically is enforceable. This final rule is intended, in part, to establish Federal “backstop” enforcement authority in States with inadequate damage prevention law enforcement programs. As has been explained at length in the ANPRM and the NPRM, the Federal authority will only be used when the State has not been adequately enforcing its law. This position is clarified in the enforcement policy in the preamble of this final rule. Additionally, in response to the TRA's comments, it is important to note that incentives and grant funding have been made available to build State damage prevention programs. It is only the States that truly fail at damage prevention enforcement where excavators will be subject to Federal authority. Finally, if PHMSA finds a State's damage prevention enforcement program inadequate, that is not the same as PHMSA finding the State's entire pipeline safety program inadequate.

PHMSA disagrees with the IUB's comment that the NPRM asserts broader authority than the law permits. One aspect of a State's damage prevention authority is the extent to which the appropriate State authority is able to execute and enforce it. Whether a given State's law does not provide enforcement mechanisms or a State has such enforcement mechanisms but is not exercising its enforcement authority, the PIPES Act provides authority for PHMSA to establish and exercise Federal authority to ensure effective enforcement.

A major goal of this final rule is to encourage States to adopt and sustain adequate damage prevention law enforcement programs. However, PHMSA has limited ability to encourage States to do so. In addition to incentivizing States with grant funds, one way PHMSA can encourage States is by making a portion of a State's base grant funding dependent upon that State having an adequate damage prevention law enforcement program. PHMSA currently makes base grant funding dependent upon the adequacy of some aspects of States' damage prevention programs. This position, which defines how the State program evaluation criteria will be applied, is clarified in the policy in the preamble of this final rule.

On PHMSA's Request for Comment on Its View That State and Federal Requirements Will Not Be Enforced Simultaneously; the Existence of a Federal Requirement Should Not Present Any Conflicts With Existing State Requirements for Excavators

KCC stated that it believes that the final rule could result in simultaneous Federal and State enforcement actions. KCC also stated its belief that PHMSA has not rejected the possibility of taking Federal enforcement action on an incident that occurred before the State program was ruled inadequate. KCC stated that it believes significant due process considerations exist that, if ignored by PHMSA, may later undermine PHMSA's own ability to take appropriate enforcement actions when PHMSA's enforcement actions are subject to judicial scrutiny. KCC seeks a definitive recognition from PHMSA on the limitations imposed on PHMSA's authority to take such an enforcement action.

New York State Department of Public Service (NYDPS) believes that PHMSA has not fully considered the potential for Federal regulations and State laws to be enforced at the same time. NYDPS stated that it needs to be fundamental to all State excavation damage prevention programs that a call to 811 will notify all utilities of the excavator's intent to excavate at a particular work site and that there is one set of rules that applies to the State damage prevention program. Even if PHMSA deems a State program inadequate, the State law will not be repealed by this action and would remain in effect. The regulations proposed contemplate this because they assume a one-call system is actively operating in the State. NYDPS is

concerned that the imposition of a Federal program may have the deleterious effect of causing confusion among one-call laws and systems. This may be particularly true in instances where a State's law goes beyond Federal regulations in its application or requirements. While there may only be 1 one-call center that takes notices of intent to excavate under both the Federal and State programs, it would be up to the excavators and operators to ensure that their employees understand the different requirements in States that have been deemed inadequate. NYDPS believes PHMSA should fully consider these impacts. Also Missouri Public Service Commission (Missouri PSC) stated that the proposed Federal regulations are the minimal standard. It is not clear, however, whether a determination that a State's damage prevention program is inadequate would preclude that State from pursuing violations of the State damage prevention laws.

Response

PHMSA can assure these commenters that it will not pursue Federal enforcement action if a State has an adequate enforcement program in accordance with this final rule. Likewise, PHMSA will not take enforcement action on incidents that occurred in a State before that State's enforcement program was deemed inadequate. Additionally, PHMSA will not enforce State standards, but will instead enforce the minimum Federal standards defined in this final rule. When conducting enforcement, PHMSA will be considerate of State practices and exemptions in the application of the minimal standard defined in this final rule.

As we have stated repeatedly in the ANPRM and the NPRM, PHMSA has no intention of taking over the damage prevention responsibilities of States. PHMSA's enforcement authority is intended to backstop State's enforcement authority. This final rule only impacts States deemed to have inadequate enforcement programs. If a State is exercising its damage prevention enforcement authority, there is no reason to believe there will be any need for Federal enforcement. If a State has not been exercising its authority, and PHMSA exercises Federal authority, PHMSA would not expect that State to suddenly start exercising its authority on the very same violation that was the subject of a Federal enforcement action. A State that decides to begin exercising its authority should petition to have the finding of inadequacy lifted and begin enforcement once it is lifted and should not “overfile” on a Federal case.

If PHMSA determines a State's excavation enforcement program is inadequate, it is unlikely that the State is conducting enforcement. Conversely, if a State is enforcing its damage prevention law, it is unlikely that PHMSA would deem that State's enforcement program inadequate. Therefore, it is unlikely that Federal and State enforcement would be applied simultaneously. If instances arise where Federal and State enforcement could potentially be applied simultaneously, PHMSA will work cooperatively with the State enforcement agency to ensure that enforcement is applied fairly and consistently. PHMSA strongly encourages States to enforce their own damage prevention laws.

On PHMSA's Request for Comments on Ways or Mechanisms That PHMSA Can Utilize To Become Aware of Excavation Damage Incidents

Missouri PSC stated that the lack of a mechanism to notify PHMSA of excavation damages to pipelines is an obvious weakness in the NPRM. Under Missouri statute, damages are required to be reported to the Missouri One Call System (MOCS). Operator data compiled by the Missouri PSC indicates, on average, operators are aware of about 200 excavation damages to intrastate natural gas pipelines each month; yet, the MOCS is not receiving nearly that many reports. If a State is found to have an inadequate damage prevention program, PHMSA would have to require operators to report damages to their facilities or institute a complaint-driven mechanism to become aware of damages.

Response

As stated in previous responses to other comments, PHMSA's goal is to act as a Federal backstop enforcement authority to States. PHMSA does not intend to conduct enforcement for all excavation damages in States with inadequate enforcement programs. On the contrary, PHMSA's limited Federal enforcement resources will likely only be applied in limited cases. To that end, PHMSA will learn about violations of this final rule through existing channels (
i.e.,
PHMSA-required incident reports, National Response Center reports, and the media), and the final rule does not require Federal reporting at this time.

On Whether the Evaluation Criteria Should Be Weighted

KCC believes the adequacy of State enforcement of State safety programs must be evaluated on a holistic basis that would necessarily include weighting the criteria. It is important to KCC to have a law in place and the ability to administer the law with appropriate performance metrics. How the laws are administered—and at what level fines are imposed—is less important to KCC if the desired results of damage prevention are being achieved. The KCC suggested that the seven proposed criteria should be ordered as follows in importance: 1, 2, 6, 4, 5, 7, and 3. The KCC asked PHMSA to note the additional criteria found in 49 CFR 198.55(b), which allow PHMSA to take unilateral action based on an individual State enforcement action, should not be considered in the evaluation of an effective program.

Missouri PSC agrees with PHMSA that weighting the criteria would be difficult. On the other hand, Missouri PSC recommends PHMSA provide clarification as to whether each of the criteria items in 6(a), 6(b), 6(c)(i), and 6(c)(ii) carry the same “weight” as the other criteria items—
i.e.,
whether there are seven items in the criteria or 10—including the four issues in item 6. In giving a “weight” or point value to each of the criteria, the Missouri PSC recommends PHMSA provide additional clarification as to whether there is an expectation or quantification of the criteria a State would have to achieve to be considered “adequate.” Finally, the Missouri PSC recommends PHMSA provide additional clarification as to whether certain criteria are considered critical and/or essential for a program to be evaluated as adequate.

Response

PHMSA believes that some of the criteria for evaluating State enforcement programs, as proposed in the NPRM, should be considered more important than others because some criteria are more critical and/or essential than others. For example, if a State does not have enforcement authority provided by State law, then that State's enforcement program should be automatically considered inadequate. However, the matter of exemptions, while important, is less critical. PHMSA has included a policy in the preamble of this final rule that defines how the criteria will be applied when evaluating State enforcement programs. In addition, PHMSA will post a policy document on the agency's Web site. The adequacy determination involves a complex judgment based on multiple factors, and we will not attempt to discuss definitive or deterministic outcomes in all possible scenarios here.

In order to use Federal enforcement authority in a State, PHMSA must first

declare the State's damage prevention law enforcement program inadequate. PHMSA will not take unilateral Federal enforcement action in a State that has an adequate enforcement program. However, PHMSA may evaluate individual State enforcement actions in assessing the adequacy of enforcement programs. No determination of State enforcement program adequacy will be based solely upon a single State enforcement action. Instead, PHMSA may evaluate the overall program, including past enforcement cases, to gain a better understanding of the adequacy of the State enforcement program within the context of the criteria listed in § 198.55 of this final rule.

On PHMSA's Request for Comment on Whether the Criteria for Evaluating the Adequacy of State Excavation Damage Prevention Law Enforcement Programs Are Clear, Well‐Defined, Consistent, and as Simple as Possible

KCC responded that consistent application of the criteria would be difficult, at best, because of what it considers to be the lack of well‐defined terms, phrases, and procedures on how the criteria will be applied. KCC suggested that PHMSA include additional guidance in the final rule on how the agency will define and apply such phrases as “sufficient levels,” “demonstrates effectiveness,” and “consider individual enforcement actions.”

Response

PHMSA agrees that additional guidance is necessary regarding the application of the criteria that will be used to evaluate the adequacy of State damage prevention law enforcement programs. PHMSA has included a policy that defines this guidance in the preamble of this final rule and will post a policy document on the agency's Web site.

On PHMSA's Request for Comments Regarding Using a Determination of State Enforcement Program Adequacy To Be a Factor in Determining State Pipeline Safety Grant Funding Levels

Missouri PSC stated it recognizes that the only incentive or disincentive that PHMSA has to make States comply with the damage prevention criteria is to reduce grant funding if the State does not have and/or enforce what are deemed by PHMSA to be adequate damage prevention laws. However, legislative action is required to make changes to Missouri's excavation damage prevention statute, and the legislative actions are outside the control of the Missouri PSC. An adequate damage prevention program is only a portion of a State's overall pipeline safety program. Not having adequate funding for the entire pipeline safety program reduces the effectiveness of Missouri's overall pipeline safety program. The result would be that Missouri could have an inadequate damage prevention program and an inadequate pipeline safety program.

Response

PHMSA does not intend to render State pipeline safety programs inadequate through the reduction of base grant funding. The reduction of base grant funding for States with inadequate enforcement programs is one tool available to PHMSA to incentivize States to implement effective enforcement programs. However, base grant funding is not the only incentive PHMSA can use. PHMSA will provide other incentives for States to implement adequate enforcement programs, including notification to the Governor explaining PHMSA's findings of enforcement program inadequacy and the potential safety and financial consequences for the State, publishing PHMSA's findings of inadequacy on PHMSA's public Web sites, giving grant funding to States for building stakeholder support for improved enforcement programs, and giving ongoing support to stakeholders in their efforts to improve enforcement programs. PHMSA may be able to provide additional support and incentives.

On 911 Notification by the Excavator

Missouri PSC stated that the PIPES Act of 2006 requires excavators to promptly call the 911 emergency telephone number if damage results in specific circumstances; however, the Missouri PSC asserts PHMSA's position in the NPRM is unreasonable. The Commission stated that discretion should be allowed as to when a call to 911 is warranted subject to whether (1) there is an emergency and 911 is called to dispatch emergency personnel; or (2) there is not an emergency and emergency personnel are not required. The Missouri PSC stated that the 911 operator should not be notified of damage to a pipeline unless emergency services are needed. The Federal Communications Commission and many communications companies have adopted “311” as the non-emergency number. Calling 911 to report damage in a non-emergency situation may obligate the 911 operator to dispatch even though the caller indicates emergency response personnel are not required at the damage site.

Response

The PIPES Act requires excavators to promptly call the 911 emergency telephone number if a damage results in the escape of any flammable, toxic, or corrosive gas or liquid. PHMSA believes that a call to 911 in such circumstances is fundamental to public safety.

Federal One-Call System

Oleksa suggested that PHMSA review the various one-call systems, determine whether or not they are “qualified,” and publish a list of “qualified” one-call systems on the PHMSA Web site.

Response

By simply dialing 811, the national call-before-you-dig telephone number, damage prevention stakeholders will be connected to a qualified one-call system as defined in 49 CFR 192.614 and 195.442.

Comments on the Proposed Regulatory Language

PART 196—PROTECTION OF UNDERGROUND PIPELINES FROM EXCAVATION ACTIVITY

Subpart A—General

§ 196.1
What is the purpose and scope of this part?
AGA suggested that the new part 196 should include requirements for excavators to follow a tolerance zone, which explicitly states the forms of “softer excavation” that are allowed in the immediate area of the marked location of the pipeline that would include hand-digging and vacuum excavation. AGA stated that these concepts are consistent with the excavation best practices in Chapter 5 of the Common Ground Alliance Best Practices 9.0. Part 196 should include language about the excavator having to take steps to protect and even expose the pipeline using soft excavation methods to confirm accuracy of the markings. Also, AGA recommended a maximum of a 1-hour time limit for excavators to report damage to the pipeline operator. In addition, AGA requested that proposed § 196.107 be amended to state that an excavator may not backfill a site where damage has occurred until the operator has been provided an opportunity to inspect the pipeline at the excavation site.

AOPL and API stated that the minimum threshold requirements for a State damage prevention program should include an incident notification requirement. They believe, however,

that a 2-hour notification ceiling, as suggested in the NPRM, appears unnecessarily prescriptive. They recommended that the standard for excavators to “promptly” report incidents to operators should remain effective without a mandated notification period. On the other hand, Missouri PSC stated that its regulations require notification of 2 hours following discovery by the operator, or as soon as practical if emergency efforts to protect life and property would be hindered. Missouri PCS stated that no issues have been identified with this time frame and recommended a 2-hour time limit for excavators to report damages.

Paiute and Southwest recommended that PHMSA require immediate notification of any damage to the pipeline operator. They stated that an excavator does not have the knowledge to determine the severity of a dent or gouge and/or whether or not the damage requires immediate repair.

PHMSA affirms the Common Ground Alliance Best Practices regarding soft excavation methods. However, PHMSA has not included tolerance zone and/or soft excavation requirements in this final rule. Tolerance zone and soft excavation requirements are very specific requirements and should be left to the States. Federal imposition of these requirements would establish double standards in States with similar requirements. PHMSA reiterates that one of the purposes of this final rule is to provide backstop damage prevention law enforcement authority in States with inadequate enforcement programs; the purpose is not to dictate overly specific requirements of safe excavation. PHMSA believes that the purpose of the Federal enforcement program is to provide a minimum standard. Further, as stated in the enforcement policy in the preamble of this final rule, PHMSA intends to consider the requirements of State damage prevention laws when conducting Federal enforcement proceedings, including State requirements regarding tolerance zones and soft excavation practices.

PHMSA agrees with API and AOPL regarding the requirements that excavators “promptly” report excavation damages to pipeline operators. PHMSA does not intend to create more specific standards than States that already define damage reporting timeframes. PHMSA will consider State requirements for reporting timeframes in instances of Federal enforcement.

§ 196.3
Definitions.
Excavation/Exemptions

The AFBF believes that, based on the current definition in the NPRM, normal agricultural and farm tillage practices would be considered excavation. AFBF believes the failure to exempt farmers and ranchers from the requirements of one-call laws prior to “excavation” is impractical and not workable for today's agricultural producers. AFBF requested that an explicit exemption for normal agricultural practices be given.

AAR believes that the NPRM's definition of “excavation” is unclear from the perspective of railroad maintenance-of-way activities. AAR stated that if railroads were subject to one-call requirements for their maintenance-of-way activities, there would be hundreds, if not thousands, of calls daily. AAR believes routine maintenance-of-way activities should not be subject to one-call notification requirements.

The Interstate Natural Gas Association of America (INGAA) stated that it opposes the last sentence of the proposed definition of excavation because it excludes homeowners excavating on their own property with hand tools. However, INGAA stated that it has no objection to the homeowner exemption to homeowners or occupants using only hand tools, rather than mechanized excavating equipment, including power augers, on their own property and digging no deeper than 12 inches below natural grade.

TPA stated that, with the growing use of plastic pipe in distribution, transmission, and gathering pipelines, the risk to pipeline infrastructure from hand digging increases. Plastic pipe can be punctured or severed by common digging tools used by homeowners. Beyond the damage to the pipeline infrastructure, excavation damage to plastic pipes would pose a risk to the homeowner. Rather than granting a blanket exemption to homeowners, TPA recommends that PHMSA limit the exemption to homeowner excavations by hand digging to depths of no more than 16 inches. TPA stated that, while the homeowner exemption should be limited, PHMSA should add an exclusion to the definition that would permit probing by an operator.

TPA also stated that the proposed definition of “Excavation,” in § 196.3 introduces ambiguity by the phrase “below existing grade.” It is not uncommon for the grade of the land above a pipeline to vary at different points along the pipeline. TPA stated that because the proposed regulations do not contain any further guidance on these matters, it would, at least initially, fall to individual excavators to determine if they are engaging in “excavation” and whether they are subject to the regulations. TPA also stated that once a pipeline is installed, erosion and prior land grading would impact the amount of cover for the pipeline. TPA stated that there is no reason to take these risks when the alternative is to make a phone call and wait a couple of days for a pipeline to be marked. Therefore, TPA urges PHMSA to remove the phrase “below existing grade” from the definition of excavation.

AGC stated that the term “excavator,” and thus the focus of Federal enforcement proceedings where the excavator is at fault, should refer to all parties doing digging work including, but not limited to, State agencies, municipal entities, agricultural entities, and railroads. State excavation damage prevention laws and enforcement should also apply equally to pipeline operators and their contract excavators and locators. However, AGC agrees that some exemptions can be justified with data, and these exemptions can only be determined at the State level, while many of the existing ones should be carefully scrutinized by PHMSA and eliminated if they present a danger to buried facilities.

The Black Hills Corporation opposes the exemption to homeowners using hand tools from requiring the use of a “Call Before You Dig” one-call system as well as from any Federal administrative enforcement action because it goes against the public safety educational drive for “Call Before You Dig” messages. Also, the Iowa Association of Municipal Utilities (IAMU) stated that exemptions to homeowners using hand tools are in direct conflict with most one-call laws across the country.

Iowa One Call believes that the proposed excavation definition would specifically exclude homeowners excavating on their own property with hand tools. The Iowa One Call stated that this exclusion is inconsistent with Iowa law and directly conflicts with the State's damage prevention public awareness and outreach communications campaign and program initiatives; however, Iowa One Call believes that some Iowa exceptions, such as opening a grave in a cemetery, normal residential gardening, operations in a solid waste disposal site which has planned for underground facilities, and normal farming operations, are judicious. To exclude these types of well-developed State exceptions would be impractical and possibly unrealistic.

NAPSR stated that the proposed definition of excavation only covers operations performed below existing grades, which may lead to confusion, especially in cases where excavation activities are performed, backfilled, and graded on multiple occasions over a period of time. The proposed definition of excavation specifically excludes homeowners excavating on their own property with hand tools and would directly conflict with many State laws and with State and national awareness initiatives. NAPSR stated that any person performing excavation activities, including homeowners, should be encouraged to call for utility locates and wait the required time allowed for marking before excavation begins, pursuant to State regulations and requirements. Therefore, NAPSR stated that the definition of excavation should not exclude hand digging by homeowners, and the sentence “This does not include homeowners excavating on their own property with hand tools” should be removed from the definition of “excavation” in § 196.3.

The IUB stated that 49 U.S.C. 60114(d)(1) requires excavators to use the one-call notification system of the State; therefore, the definition of excavation in the NPRM should defer to the definition of the State in which the excavation is proposed. The IUB stated the homeowner exclusion would directly conflict with many State laws and with State and national awareness initiatives to encourage landowners to call for utility locates before digging, and therefore, hand digging by homeowners should not be excluded. However, the IUB stated that excluding farm operations is impractical and unrealistic. Also, NUCA requested that the “excavator” definition should include examples such as excavator, contractor excavator, in-house excavators, municipalities, etc.

Northern Natural Gas supports the reduction of exemptions to one-call damage prevention laws. Northern suggested no exemptions. As for farming operations, Northern recommended a requirement for one-call notification whenever the farming operation penetrates the soil to a depth of 12 inches or greater. Northern stated that examples requiring a one-call notification for farm work would include mechanical soil sampling, drain tiling, chisel plowing, sub-soiling, ripping, terracing, and waterway or post installation. Also, OGA stated that there should not be a homeowner exemption because there must be the universal acceptance of the requirement to “Call Before You Dig.”

Response

Most of the comments regarding the definition of excavation are focused on how the definition of the term will be interpreted in light of existing exemptions from the requirements of State damage prevention laws. The definition of excavation in this final rule is intentionally broad and inclusive. However, PHMSA recognizes that the definition of excavation in this final rule is broader and more generic than many of the definitions of excavation in State damage prevention laws. State laws are specific about which classes of excavators and/or which types of excavation are or are not exempt from State law. In conducting Federal enforcement, PHMSA will be considerate of the definitions of excavation, including exemptions applicable to excavators, in State damage prevention laws. However, PHMSA may choose to pursue Federal enforcement actions against excavators who egregiously and/or negligently damage pipelines in disregard of safety, regardless of whether those excavators are exempt from State law. PHMSA's enforcement policy is defined in the preamble to this final rule.

PHMSA agrees with the comments from INGAA, TPA, IAMU, the Black Hills Corporation, Iowa One Call, and NAPSR that oppose an exemption for homeowners excavating on their own property with hand tools. The exemption for homeowners has been removed from this final rule. PHMSA has not included any exemptions for excavations in this final rule. Exemptions in this final rule could create confusion regarding the applicability of State and Federal standards. Instead, PHMSA will be considerate of State exemptions in exercising Federal enforcement authority.

PHMSA has not clarified the types of excavators to whom the final rule applies, as suggested by NUCA. The definition of the term “excavation” is broad enough to encompass all types of excavators regardless of their relationships to other entities.

PHMSA agrees with TPA regarding the need to eliminate the phrase “below existing grade” from the definition of “excavation.” The definition of “excavation” has been updated accordingly.

Damage/Excavation Damage

AOPL and API believe revising the definition of damage or excavation damage in this section would provide greater clarity. They requested that because nicks, coating scrapes, and damage to cathodic protection wiring or appurtenances could affect the integrity of the pipeline, the word “impact” in the definition should be replaced with the term “excavation activity.” They stated that damage can be caused without physical impact: coating can be worn while pulling up trees or digging out roots in close proximity to a pipe; cathodic protection wiring can be cut, broken, or disconnected as a result of stresses created by heavy loading due to improper backfilling; or external loading itself can create undue stress on the pipe, creating an unsafe condition. Damage can also be caused when the support under the pipeline is taken away. Therefore, they requested a broader definition that would encompass a broad range of activities that impact safety.

Response

PHMSA agrees with AOPL and API regarding the need for greater clarity in the definition of damage or excavation damage. The definition of these terms has been modified to address these concerns.

Pipeline

NAPSR stated that the proposed definition of “pipeline” does not cover all appurtenances of a pipeline structure, only those “attached or connected to pipe . . .” This would exclude tracer wire systems or other devices, such as radio frequency identification or other electronic marking system (EMS) devices, used to facilitate proper locating and marking of the operator's infrastructure. NAPSR recommended that the definition of “pipeline” be written to include tracer wire and other devices used to facilitate proper locating and marking of the operator's infrastructure. NUCA requested that the pipeline definition should clearly describe the types of pipelines to which the final rule will apply, such as gathering, transmission, and distribution (including gas mains and service lines), as defined in existing laws and regulations, so everyone understands exactly what types of lines are included.

Response

PHMSA agrees with NAPSR about the need for the definition of “pipeline” to be expanded to include tracer wire and other devices used to facilitate proper locating and marking of the operator's infrastructure. PHMSA also agrees with NUCA regarding the need to clearly describe the types of pipelines to which the final rule will apply. The definition of “pipeline” has been modified accordingly.

Tolerance Zone

TPA suggests that PHMSA add a definition of “tolerance zone” to § 196.3. TPA stated that such a definition is critical to determining the accuracy of the locate markings and the area where “proper regard” must be used by an excavator as required by proposed § 196.103(c). Without the addition of this definition, PHMSA will be repeatedly placed in a difficult enforcement situation if a dispute arises between the excavator and the operator about the accuracy of the marking or the type of excavation practices used near the pipeline. Although the States have many different standards for a tolerance zone, the least controversial standard to use for a Federal standard would be CGA's Best Practice 5-19, which defines the tolerance zone as the width of the facility plus 18 inches on either side of the outside edge of the underground facility on a horizontal plane. TPA suggested that this definition or a similar definition would facilitate enforcement and enhance the protection of pipeline infrastructure and public safety.

Response

PHMSA has not included a definition of “tolerance zone” in this final rule. State laws are often specific about tolerance zones, and PHMSA does not wish to create confusion by establishing an excavation standard that is more specific or more restrictive than some State standards. Instead, when conducting Federal enforcement, PHMSA will be mindful of tolerance zones as defined by the law in the State where PHMSA is conducting enforcement.

Subpart B—One-Call Damage Prevention Requirements

§ 196.101
What is the purpose and scope of this subpart?
TPA suggested that the title of this Subchapter should be revised by deleting the word “One-Call” because the proposed Subpart B includes most of the excavation practice requirements, operator locating requirements, and One-Call process. TPA also urges PHMSA to add a provision to Subpart B requiring excavators and operators to report any damage to pipeline facilities using the CGA Damage Information Reporting Tool (DIRT). TPA stated that this provision should also impose a time limit for reporting so that the relevant data is captured as soon as possible after the damage event occurs.

Response

PHMSA agrees with TPA's suggestion to remove the word “One-Call” from the title of this subpart. The title has been changed from “One-Call Damage Prevention Requirements” to “Damage Prevention Requirements.” PHMSA disagrees with TPA's suggestion to require excavators and operators to report damages to the CGA DIRT database. The CGA DIRT database was developed as a voluntary system. Further, PHMSA does not own or control the CGA DIRT database, and PHMSA believes it would be inappropriate to require the use of CGA DIRT database through regulation.

§ 196.103
What must an excavator do to protect underground pipelines from excavation-related damage?
NAPSR, NYDPS, AGA, INGAA, DCA, NUCA of Ohio, AOPL and API stated that in § 196.103, the language “where an underground gas or hazardous liquid pipeline may be present” would directly conflict with many State laws and with State and national awareness initiatives. They stated that the excavator should always call for staking prior to excavating. They stated that there is no way for an excavator to determine if a pipeline may be present without a staking request. Therefore, they recommended that the language “where an underground gas or hazardous liquid pipeline may be present” be removed or modified from § 196.103.

NAPSR stated that the language in § 196.103(b), which reads, “If the underground pipelines exist in the area, wait for the pipeline operator to arrive at the excavation site and establish and mark the location of its underground pipeline facilities before excavating,” fails to define what is meant by “in the area” and does not specify the amount of time in which the operator is expected to “wait for the pipeline operator to arrive” and “mark the location.” NAPSR recommended that the term “area” should be better defined, the time between calling for locates and the beginning of excavation should be specified, and actions an excavator is to take when an operator fails to establish and mark the location of its underground facilities should be specified.

TPA stated that to increase the clarity of § 196.103, PHMSA should restructure the section by creating two major subsections, with one addressing activities prior to excavation and the other addressing activities during excavation. Also, TPA suggested that at least 2 business days should be required for the line locate request through a notification center before the planned beginning of an excavation. TRA stated that such a standard is consistent with the CGA Best Practices. TPA suggests revisions similar to CGA Best Practices 5-17 and 5-19 and believes these revisions should not be controversial. TPA provided recommended language to modify the proposed language in § 196.103. TPA stated that if PHMSA does not adopt TPA's recommendations, it suggests that the introductory language to § 196.103 be revised to read, “Prior to and during excavation activity. . .” to clarify the complete time period when the requirements of proposed § 196.103 apply.

Pennsylvania One Call suggested that § 196.103(a) should be amended to provide that an excavator must furnish the one-call center with specific location information consistent with State law, regulation, or practice because it believes that the current language does not address this matter.

NUCA suggested that the language in § 196.103(b) should require excavators to wait a prescribed time period (established by State law) for pipeline operators to arrive at the excavation site and mark the location of underground pipeline facilities. AOPL and API requested that the language in § 196.103(b) stating that an excavator shall “. . . wait for the pipeline operator to arrive at the excavation site and establish and mark the location of its underground pipeline facilities before excavating,” be rephrased to read “Wait for 48 hours from the time of placing a one-call notification prior to excavation, to permit the pipeline operator to arrive at the excavation site and establish and mark the location of its underground pipeline facilities.” They suggested that if the call is placed on a weekend, the 48-hour notification period would commence the next business morning, and excavation may proceed if the excavator has received an affirmative response from all underground utility operators as marked or cleared.

NAPSR stated that § 196.103(c) is vague and does not adequately address what “proper regard” or “respecting the marks” means. NAPSR stated that to clarify the section, PHMSA should add a reference to the CGA best practices for safe excavation around an underground facility.

AGA stated that § 196.103(d) seems unnecessary because a marking request is understood to be required at “other” locations. DCA questions the need for § 196.103(d) that would require excavators to “. . . make additional use of one-call as necessary to obtain locating and marking before excavating if additional excavations will be

conducted at other locations.” DCA stated that the requirement seems redundant. Excavators would have to comply with the requirements set forth in § 196.103(a), (b) and (c) for “additional excavations” that would be conducted at other locations.

AOPL and API recommended that § 196.103(d) state that, prior to commencing excavation activity where an underground gas or hazardous liquid pipeline may be present, the excavator must “make additional use of one-call as necessary to obtain locating and marking before excavating if additional excavations will be conducted at other locations.” They stated that the language appears to only require the use of one-call for excavations that are to be conducted at other locations. Since some State laws require the additional use of one-call for excavations that continue at the same location, AOPL and API recommended that the clause “. . . if additional excavations will be conducted at other locations,” be deleted, and that PHMSA replace the phrase with the language “. . . or a locate request or markings have expired and a new one-call notification is required per applicable state law” in its place.

Response

PHMSA agrees with the comments of NAPSR, NYDPS, AGA, INGAA, DCA, NUCA of Ohio, AOPL, and API regarding the need to remove the language “where an underground gas or hazardous liquid pipeline may be present” from § 196.103. The section has been updated to reflect the change. In addition, PHMSA has not adopted the recommendation from NAPSR concerning wait times and actions to be taken when an operator fails to mark its facilities. These issues are typically well-defined in State law. PHMSA intends to be considerate of State law when conducting Federal enforcement proceedings.

PHMSA has not restructured the section by creating two major subsections, as suggested by TPA. However, PHMSA has revised the introductory language for the section to read, “Prior to and during excavation activity . . .” to clarify the time period when the requirements of the section apply.

PHMSA has not adopted the suggestions from Pennsylvania One Call and NUCA regarding amending the section to require that excavators furnish the one-call center with information and wait the prescribed time required by State law. The enforcement policy in the preamble of this final rule provides that PHMSA will be considerate of State requirements when conducting Federal enforcement proceedings.

PHMSA has not adopted the recommendations of AOPL and API regarding including specific language pertaining to wait times in § 196.103(b). PHMSA does not wish to create Federal requirements that differ vastly from State requirements. Excavators in each State should already be familiar with the wait time requirements of State damage prevention laws. A different Federal wait time requirement may create confusion. PHMSA will be considerate of the requirements of State laws in instances of Federal enforcement.

PHMSA agrees with NAPSR that the proposed § 196.103(c) is generic. PHMSA has clarified the section in the final rule, but the section is left intentionally generic to allow for the variability in State damage prevention laws, which PHMSA will consider in any Federal enforcement case. PHMSA has not made any references to CGA Best Practices in the section.

PHMSA disagrees with the comments of AGA and DCA regarding the redundant nature of the proposed § 196.103(d). PHMSA has not removed this section from the final regulatory language. This language is taken directly from the PIPES Act, and PHMSA considers it essential to preventing excavation damage to pipelines.

PHMSA agrees with the comments from AOPL and API regarding § 196.103(d). However, PHMSA has not replaced the current language with the language they recommended. The language AOPL and API recommended refers specifically to State law, which PHMSA has no authority to enforce. Therefore, the phrase “. . . if additional excavations will be conducted at other locations” has been deleted and replaced with the phrase “. . . to ensure that underground pipelines are not damaged by excavation.”

§ 196.105
Are there any exceptions to the requirement to use one-call before digging?
NAPSR stated that, in § 196.105, the exemption for homeowners conflicts with many State laws and with State and national awareness initiatives. However, NAPSR commented that State laws may include reasonable exemptions to the requirement to use one-call before digging such as opening a grave in a cemetery, landfill operations, and tilling for agricultural purposes. Therefore, NAPSR believes that any requirements or exceptions on when to use the one-call system before digging should be deferred to the State law.

MidAmerican Energy Company (MidAmerican) stated that it is concerned with the homeowner exemption language in § 196.105, and it believes that it would be safer and more appropriate to always require the homeowner to call for a locate than leaving it to the homeowner's discretion.

AGA stated that the exception from Federal enforcement for homeowners using hand tools on their own property under § 196.105 is to simply attempt to establish a reasonable boundary around the excavation damages PHMSA would be considering for enforcement action in those States with inadequate programs. Therefore, AGA recommended that hand digging to shallow depths be allowed for any party since digging with hand tools to shallow depths (less than 12 inches in depth) is typically not one of the highest risks among third party excavations in States with an inadequate program. AGA suggested that PHMSA delete the sentence “This does not include homeowners excavating on their own property with hand tools” since it is likely to cause confusion and is unnecessary if the language in § 196.105 is amended. AGA also stated that it agrees with PHMSA's use of the word “exception” under § 196.105 since its incorporation into a Federal excavation standard is very different from the one-call exemptions that exist at the State level. AGA stated that consideration should also be given to whether or not a farmer is a “homeowner” and if so, whether their exception would be for their entire property or just for their farm. AGA pointed out that Page 25 of CGA's 2010 DIRT Report shows that “occupant/farmer” is the excavator involved in 10 percent to 17 percent of the events collected for six of the eight One-Call System International Regions, and AGA believes this is a significant issue.

INGAA stated that homeowners using hand tools to dig more than 12 inches deep should not be exempt from contacting one-call and opposes the § 196.105 language that would exempt homeowners from contacting one-call before digging with hand tools.

TPA stated that § 196.105 should be revised to read as follows: “. . . provided that the homeowner does not dig deeper than 16 inches.”

NUCA stated that in § 196.107 homeowners should not be exempted from calling one-call before excavation activity.

Response

PHMSA agrees with the comments regarding the need to eliminate the proposed exemption for homeowners.

This exemption has been removed from the regulatory language. The final regulatory language is silent on the subject of exemptions/exceptions.

§ 196.107
What must an excavator do if a pipeline is damaged by excavation activity?
AOPL and API requested that § 196.107 be amended to state that an excavator may not backfill a site where damage or a near miss has occurred until the operator has been provided an opportunity to inspect the site. In addition, AOPL and API suggested that a stop work requirement be included in § 196.107 as, “If a pipeline is damaged in any way by excavation activity, the excavator must immediately stop work at that location and report such damage to the pipeline operator, whether or not a leak occurs. Work may not resume at the location until the pipeline operator determines it is safe to do so.”

CenterPoint stated that in § 196.107 the excavator should not backfill a pipeline if it is damaged by the excavator, and the excavator should remain on site and leave the damaged area accessible to the operator unless it would be unsafe or impractical to do so. If the damaged area is not left accessible, the excavator should leave clear markings to assist the operator with finding the damage.

Kern River stated that § 196.107 should first require that work be stopped immediately and the pipeline operator be contacted immediately since the excavator is not qualified to make a determination of the extent of the damage caused to a pipeline.

NAPSR recommended that § 196.107 state “. . . if a pipeline is damaged in any way by excavation activity, the excavator must report such damage to the pipeline operator.” NAPSR stated that consideration should be given to requiring the excavator to also notify the one-call center in the event of damage to an underground facility and/or a release of product to make sure there is a centralized location for the reporting of damages and a method of proper documentation of pipeline damages due to excavation.

NYDPS stated that § 196.107 requires excavators to notify the pipeline operator if the facility is damaged in any way by the excavation activities. The NPRM would require notification at the “earliest practicable moment,” but the NPRM indicates that PHMSA is considering requiring notification in no less than 2 hours. NYDPS stated that, instead of requiring a specific notification time, it believes that the language in the NPRM is preferable. NYDPS recommended that the regulation require, after the evacuation of employees and any other endangered persons, “immediate notification” by the excavator to the operator of any contact or damage to the pipeline, since this language is somewhat less open to interpretation and less subjective than the “earliest practicable moment.”

On the other hand, TPA stated that § 196.107 should be revised to include a time limit by which an excavator must notify the operator of damage to a pipeline. TPA stated that even if there is no release of product, an operator needs to get to the damage site as soon as possible to assess the situation and take any necessary remedial action. TPA suggested that the time limit be 2 hours following discovery of the damage. TPA also suggested that § 196.107 should be revised to include a requirement that an excavator not backfill any portion of a damaged pipeline without the operator's approval.

Pennsylvania One Call stated that § 196.107 be amended to cover not only damage to a pipeline but also physical contact with a pipeline because this would prevent an excavator from exercising discretion to determine whether contact did or did not result in damage, and mere contact could create damage to pipeline coating.

Response

While PHMSA understands the comments from AOPL, API, CenterPoint, and Kern River regarding stop work and backfill requirements, PHMSA has not included these requirements in the final rule. These requirements would be very difficult to communicate in States with inadequate enforcement programs. The requirements would also be different from the requirements of State damage prevention laws in most cases. PHMSA does not wish to create confusion or create a scenario under which excavators would be subject to Federal enforcement of a requirement of which they would likely not be aware.

PHMSA has considered requiring excavators to notify the one-call center, in addition to the pipeline operator, in the event of excavation damage to a pipeline. PHMSA does not believe this requirement should be included in the final rule. One-call centers are not necessarily equipped to accept damage reports in every State. NAPSR's recommendation, therefore, could create an undue burden on both excavators and one-call centers and could lead to confusion among damage prevention stakeholders.

In response to the comments from NYDPS and TPA regarding the time limit for notice of damage to pipeline operators, PHMSA believes that the language proposed in the NPRM is practical and enforceable. Establishing a specific timeline may create confusion among stakeholders in States where PHMSA has Federal enforcement authority.

In response to the Pennsylvania One Call, PHMSA believes the definition of the terms “damage/excavation damage” in § 196.3 is broad enough to encompass all of the types of excavation damage that may have an impact on pipeline integrity and safety.

§ 196.109
What must an excavator do if damage to a pipeline from excavation activity causes a leak where product is released from the pipeline?
AGA suggested in § 196.109, PHMSA add a requirement that an excavator responsible for damage that results in the escape of dangerous fluids or gasses must take actions to protect the public until the arrival of the operator or public safety personnel in a manner consistent with the second half of CGA Best Practice 5-25: “The excavator takes reasonable measures to protect everyone in immediate danger, the general public, property, and the environment until the facility owner/operator or emergency responders arrive and complete their assessment.” AGA suggested that in § 196.109, PHMSA delete “Upon calling the 911 emergency telephone number, the excavator may exercise discretion as to whether to request emergency response personnel be dispatched to the damage site,” because this type of decision should rest with the 911 operator not the excavator.

NAPSR commented that in § 196.109, if the incident is such that it “may endanger life or cause serious bodily harm,” then emergency personnel should always respond to the site; the excavator should not be making a “judgment call” at this point. NAPSR recommended that the sentence “Upon calling the 911 emergency telephone number, the excavator may exercise discretion as to whether to request emergency response personnel be dispatched to the damage site” be removed from the proposed language in this section.

AOPL and API and INGAA suggested that § 196.109 should specify that if damage to a pipeline from excavation activity causes the release of any material, either gas or liquid, from the pipeline, the excavator must immediately stop work at that location and report the release to appropriate emergency response authorities by calling 911. Excavators should be required to contact the pipeline operator to notify them of the release after contacting the appropriate emergency

response authorities. Work should not resume at the location until the pipeline operator determines the work can be resumed.

Kern River stated that § 196.109 should first require that work be stopped immediately, next that the damage be reported to appropriate emergency response authorities, and finally that the pipeline operator be promptly notified.

MidAmerican commented that § 196.109 requires excavators to immediately report the release of hazardous products to the appropriate emergency response authorities by calling 911. Once the 911 emergency telephone number is called, § 196.109 would allow excavators the discretion of whether to request that emergency response personnel be dispatched to the damage site. MidAmerican stated that it believes that an exception should be made to the requirement to call 911 for pipeline operators who damage their own pipelines. Pipeline operators' personnel are directly on-site and can see that the necessary repairs can be made safely and expeditiously without the need to first contact emergency response personnel.

NUCA, NUCA of Ohio, DCA, and Pennsylvania One Call stated that the “911 requirement” in § 196.109 presents a “Pandora's box” to the excavation community. They stated that professional excavators are not first responders. Expecting a contract excavator to accurately determine if the product released following excavation damage is one that can “cause serious bodily harm or damage property or the environment” is outside their responsibilities. They stated that the decision as to whether a 911 call ought to result in a dispatch of emergency responders is a matter to be decided by the 911 center, not the excavator. They encourage PHMSA to revise or delete this provision in the final rule. NUCA agrees with PHMSA's proposal for calling 911 except for the excavator needing to maintain the option to exercise discretion on whether it is necessary for the 911 dispatcher to send emergency response personnel. NUCA stated that in many situations, all the excavator may need to do is inform the owner/operator that the pipeline was damaged so the pipeline operator can respond with the personnel who are best educated and equipped to handle the situation.

TPA stated that § 196.109 should be revised in three ways. First, to prevent the excavators using their discretion to call 911, the phrase, “that may endanger life or cause serious bodily harm or damage to property or the environment” should be deleted. Second, to eliminate any ambiguity in the final rule concerning when 911 should be contacted, the phrase, “of hazardous products,” which occurs immediately following the second occurrence of the word, “release,” in the first sentence of the Section, should be deleted. Third, the phrase, “in addition to contacting the operator,” should be added to the end of the first sentence of the Subsection to clarify that the operator needs to be contacted first.

Response

PHMSA disagrees with AGA's suggestion of requiring compliance with CGA Best Practice 5-25. While PHMSA supports CGA Best Practices (including Best Practice 5-25), PHMSA does not intend to require compliance with the Best Practices through this regulation. PHMSA agrees with AGA's and NAPSR's suggestion of removing the phrase, “Upon calling the 911 emergency telephone number, the excavator may exercise discretion as to whether to request emergency response personnel be dispatched to the damage site” from § 196.109. The phrase has been removed from the final regulatory language. PHMSA agrees with the suggestions from AOPL, API, INGAA, and NUCA regarding the need for excavators to contact 911 and the pipeline operator if excavation damage causes a release. PHMSA has removed from the final rule the proposed option for excavators to exercise discretion as to whether emergency response personnel be dispatched to a damage site. For reasons already noted in previous responses to comments, PHMSA disagrees with the idea of requiring excavators to stop work because of challenges related to communication and enforcement of the requirement.

PHMSA disagrees with MidAmerican's belief that an exception to the 911 requirement be made for operators who damage their own pipelines. The PIPES Act of 2006 requires the call to 911 in cases of excavation damage that result in releases, regardless of who is conducting the excavation.

PHMSA has made the changes to § 196.109 as recommended by TPA, with one exception. PHMSA has not included the phrase, “in addition to contacting the operator,” as recommended by TPA because contacting the operator after excavation damage occurs is already required under § 196.107.

PHMSA has also modified § 196.109 from the originally proposed “any flammable, toxic, or corrosive gas or liquid from the pipeline that may endanger life or cause serious bodily harm or damage to property or the environment” to “any PHMSA regulated natural and other gas or hazardous liquid as defined in parts 192, 193 or 195.” PHMSA made this change to ensure consistency with existing PHMSA regulations.

§ 196.111
What if a pipeline operator fails to respond to a locate request or fails to accurately locate and mark its pipeline?
NAPSR stated that § 196.111 states that “PHMSA may enforce existing requirements applicable to pipeline operators, including those specified in 49 CFR 192.614 and 195.442 and 49 U.S.C. 60114 . . .” However, most State regulations are more stringent than §§ 192.614, 195.442, and 60114, which generally cover only the broad basics and do not include as detailed compliance requirements as State law. NAPSR stated that PHMSA would not have a way of knowing if the pipeline operator fails to respond. In addition, it is not clear to NAPSR whether additional reporting requirements on pipeline operators or excavators, or both, would be established. NAPSR stated that State laws, regulations, and rules usually provide specific and detailed requirements for when an operator fails to respond to a locate request or fails to accurately locate and mark its pipelines. Therefore, NAPSR stated that any requirements concerning failure to respond or accurately locate needs to defer to the State law in the State where the event occurred.

Pennsylvania One Call requested that § 196.111 be amended to make it clear that PHMSA's direct role in State enforcement normally will be limited to those situations where (a) the State lacks enforcement authority, or (b) the State systematically refuses (by action or inaction) to utilize the authority it has.

NUCA stated that § 196.111 should include action against the owner/operator that results in reimbursement to the contractor for financial losses due to the owner/operators' failure to locate and/or accurately mark the pipeline. NUCA stated that this requirement would encourage pipeline owner/operators to respond to a request for “a locate” in a timely manner.

TPA stated that § 196.111 requires enforcement for the failure of an operator to accurately locate and mark its pipeline, but there is no standard in part 196 establishing the requireme

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-17259. Public record. Not legal advice.