Protecting Pipelines from Excavation Damage Pipeline Safety Conference New Orleans July 11, 2017
2 Presentation Overview • Overview of the regulation - what it is and what it is not • PHMSA’s evaluations of state enforcement programs to date • General observations from PHMSA’s evaluations • Regulation website • PHMSA Distribution Excavation Damage Data
3 History of the Rule • Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006 – Heavy focus on preventing excavation damage to pipelines (a leading cause of serious pipeline incidents) – New limited enforcement authority for PHMSA pertaining to excavators who damage pipelines in states with inadequate damage prevention enforcement programs • ANPRM published October 29, 2009 • NPRM published April 2, 2012 • Final rule published July 15, 2015 • Rule becomes effective January 1, 2016
4 The Regulation is NOT … • An attempt to create a national one-call law • A takeover of state damage prevention programs • An attempt to nullify state damage prevention or one-call laws, including state enforcement • An attempt to establish a large federal enforcement regime PHMSA wants states to enforce their own one-call laws to adequately ensure safety.
5 Overview The regulation is considered “backstop” authority • 49 CFR 196 -- Protection of Underground Pipelines from Excavation Activity – The federal safety standard applicable to excavators • 49 CFR 198.51 to 198.63 -- Subpart D — State Damage Prevention Enforcement Programs – Seven (7) criteria to evaluate state enforcement • PHMSA has enforcement authority over excavators only in states determined to have inadequate enforcement programs
6 Part 196 — Protection of Underground Pipelines from Excavation Activity Subpart A – General Subpart B – Damage Prevention Requirements • 49 CFR 196.103 – Use one-call before excavating, wait for pipelines to be located/marked, respect the marks and take all practicable steps to prevent damage, make additional use of one-call if necessary for locates • 49 CFR 196.107 – Report any pipeline damage to pipeline operator • 49 CFR 196.109 – Promptly notify 911 if damage causes release of any 192 or 195 defined gas or hazardous liquid
7 Part 196 — Protection of Underground Pipelines from Excavation Activity • 49 CFR 196.111 – PHMSA has authority to enforce against pipeline operators who do not perform timely and accurate locate and mark Subpart C – Administrative Enforcement Process • 49 CFR 196.201 – 211 – Use existing administrative adjudication process – Assess administrative maximum civil penalties of $205,638 per violation per day, $2,056,380 for series of violations – Use other civil and criminal penalties
8 Part 198 — Regulations for Grants to Aid State Pipeline Safety Programs Subpart D – State Damage Prevention Enforcement Programs • 49 CFR 198.53 – When and how PHMSA evaluates states – All state one-call law enforcement programs were evaluated in calendar year 2016 – Enforcement programs will be evaluated on an annual basis – 2017 evaluations will start in June – States have five years to meet minimum adequacy criteria • 49 CFR 198.55 – Criteria to evaluate states – PHMSA developed an audit checklist using the seven criteria outlined in the regulation
9 Part 198 — Regulations for Grants to Aid State Pipeline Safety Programs • 49 CFR 198.57 – How PHMSA notifies states – All states have received their 2016 determination letters – Primary addressee is the entity with enforcement authority in the one-call law and cc: to the governor and state one-call • 49 CFR 198.59 – States have 30 days to contest an inadequate determination • 49 CFR 198.61 – PHMSA will issue a final decision • 49 CFR 198.63 – States may petition for reconsideration based on changed circumstances
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11 General Observations • When PHMSA published the ANPRM in 2009 There were nine states with no enforcement authority Today there are currently three states with no enforcement authority – Alaska – West Virginia – Colorado • New state enforcement – Mississippi and Louisiana • Diversity among states when it comes to enforcement • States have been cooperative and want to have an adequate enforcement program • States have generally viewed the evaluation checklist as fair and sufficient
12 What if a State’s Enforcement Program is Deemed Inadequate? • PHMSA will support state efforts to develop an adequate enforcement program – Letters of support – Review proposed legislation – Review rules, regulations, process, procedures, etc. – Discuss program development – Stakeholder education • PHMSA urges the state to use the checklist along with the guidance, as a road map to improve state enforcement
13 PHMSA’s Approach to Federal Enforcement • General philosophy: – Strategic and targeted enforcement on a limited basis; federal authority should be considered “backstop” – Primary goal: encourage change in State behavior (states should enforce their own laws) – PHMSA will enforce 49 CFR 196 (PHMSA cannot enforce state laws) – PHMSA will allow states an opportunity to investigate – PHMSA will encourage states to take enforcement action, e.g. mandatory training, warning letter, civil penalty, if warranted – PHMSA cannot enforce in states with adequate programs
14 Resources • Website: http://phmsa.dot.gov/pipeline/safety-awareness- and-outreach/excavator-enforcement – Google: “PHMSA Excavation Enforcement” • The website contains: – Background information – Schedule of state program evaluations – State enforcement evaluation checklist – PHMSA’s determinations of state program adequacy – includes determination letter sent to state – Final Rule – FAQs – Contact information for PHMSA – Notify PHMSA of excavation damage
PHMSA – Pipeline Excavation Damage Data 15 “PHMSA Stakeholder Communications”
16 Gas Distribution Pipeline Leaks by Cause 2005 - 2016 AL MS AL NM AR LA
17 Gas Distribution Pipeline Leaks Caused by Excavation Damage 2005 - 2016 AL MS AR NM LA
19 Gas Distribution Pipeline Excavation Damages by Root Cause 2015 - Present Definitions from Gas Distribution Annual Report • One-Call Notification Practices Not Sufficient : Damages resulting from no notification made to the One-Call Center; or notification to one-call center made, but not sufficient; or wrong information provided to One Call Center. • Locating Practices Not Sufficient : Damages resulting from facility could not be found or located; or facility marking or location not sufficient; or facility was not located or marked; or incorrect facility records/maps. • Excavation Practices Not Sufficient : Damages resulting from failure to maintain marks; or failure to support exposed facilities; or failure to use hand tools where required; or failure to test-hole (pot-hole); or improper backfilling practices; or failure to maintain clearance; or other insufficient excavation practices. • Other : Damages resulting from One-Call Center error; or abandoned facility; or deteriorated facility; or previous damage or data not collected; or other.
19 Gas Distribution Pipeline Excavation Damages by Root Cause 2015 - Present AL MS AR NM LA
Gas Distribution Pipeline Excavation Damages by Root Cause 20 2015 - Present State Calendar Number of Number of One-Call Locating Excavation Other One-Call Locating Excavation Other Year Excavation Excavation Notification Practices Not Practices Not Notification Practices Not Practices Not Tickets Damages Practices Not Sufficient Sufficient Practices Not Sufficient Sufficient Sufficient Sufficient AL 2015 421,174 2,996 480 395 795 1,424 16% 13% 27% 48% AL 2016 533,159 3,827 719 823 1,235 1,050 19% 22% 32% 27% AR 2015 220,859 1,778 544 241 555 438 14% 25% 31% 31% AR 2016 248,871 2,233 856 309 507 561 38% 14% 23% 25% LA 2015 509,042 1,496 428 280 526 262 19% 18% 29% 35% LA 2016 525,148 1,967 526 418 813 210 27% 21% 41% 11% MS 2015 228,750 1,830 951 303 439 137 52% 17% 24% 7% MS 2016 270,962 1,636 503 413 590 130 25% 8% 31% 36% NM 2015 108,159 383 124 79 147 33 32% 21% 38% 9% NM 2016 114,935 466 150 102 163 51 22% 11% 32% 35%
21 Thank You Steve Fischer (713) 325-2752 Steven.Fischer@dot.gov Excavation.Enforcement@dot.gov
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