The Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006 was signed into law in the eleventh hour of the 109th Congress. The PIPES act was not just another reauthorization of the Nation’s natural gas and hazardous liquid pipeline safety program — it included an expansion of federal jurisdiction, which is never an easy sell.

The law allows federal participation in enforcement actions in states whose damage prevention laws are either inadequate or not sufficiently enforced. While this does raise legitimate concern, there is also significant opportunity for the excavation community in terms of ensuring that the responsibilities of facility operators are held in the same regard as the responsibilities of excavators.

On October 29, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA)published an Advanced Notice of Proposed Rulemaking (ANPRM) on the subject to get as much initial input from affected stakeholders before the agency moves forward with an official proposed rule.

Evaluating the “Nine Elements”

As in any reauthorization measure, the PIPES Act addressed a broad range of policy issues within the world of gas and oil pipeline transportation. However, the bill focused on efforts to reduce excavation damage, which remains one of the leading causes of pipeline failures. Several organizations representing underground facility operators lobbied Congress hard for a new federal role in enforcement of One Call and damage prevention laws.

NUCA was called in to meet with key Hill staff to discuss the issue. Despite NUCA’s initial objection to any language in the PIPES bill that would expand PHMSA’s jurisdiction to allow them to directly enforce state damage prevention laws on excavating contractors, it became clear that the bill would include expansion of the federal role. NUCA then secured a seat at the table to help develop the language. At this point, our goal was clear: make sure the enforcement language in the final bill was balanced to hold all stakeholders with a responsibility in damage prevention to do their part or face enforcement actions from whatever entity is in charge.

The PIPES Act describes nine elements of an effective state damage prevention program. Rather than the usual prescriptive language included in legislation, the nine elements are goal-oriented and flexible in terms of how states can meet each element.

The nine elements noted in the PIPES Act address the following concepts that should be included in state One Call and damage prevention programs:

Enhanced communication among all stakeholders, especially between excavators, One Call centers and underground facility operators.

Fostering support and partnership of all stakeholders. In order to enhance communication, all stakeholders involved have to be invited to the discussion. NUCA believes including excavators and contract locators on state One Call boards is an ideal way for states to implement this element in their programs.

Operator’s use of performance measures for locators. During the 2006 debate on the PIPES Act, NUCA strongly advocated for increased requirements on operators to ensure accurate locating practices, and Element 3 delivers. The ANPRM looks for minimum training and qualification for locators, whether performed by contract locators or in-house personnel (employed by the operator).

Partnership in employee training. The PIPES Act indicates that effective employee training should be coordinated among stakeholders “to ensure that operators, the One Call center, the enforcing agency and the excavators have partnered to design and implement training for the employees” of those stakeholder groups.

Partnership in public education. The law clearly states that all stakeholders should be encouraged to participate in public education programs to ensure that educational messages are clear to all audiences for which they are intended.

Enforcement agencies’ role to help resolve issues. Bottom line: the state entity charged with enforcing damage prevention law must be fully aware of its role. Although this element may seem simplistic, it’s important. Additionally, PHMSA’s ANPRM encourages stakeholder input in the enforcement process.

Fair and consistent enforcement of the law. This is probably the most important element and also the one which offers the biggest opportunity to level the playing field between underground facility operators and excavators. PHMSA is looking for states to enforce laws consistently, equitably and transparently. NUCA’s comments to the ANPRM will strongly encourage PHMSA to ensure that violations committed by underground facility operators are not overlooked.

Use of technology to improve the locating process. This element calls for “improving technologies that may enhance communications, underground pipeline locating capability and gathering and analyzing information about the accuracy and effectiveness of locating programs.”

Data analysis to continually improve program effectiveness. Performance data is needed to regularly evaluate the effectiveness of a state’s damage prevention program.

When can the Feds Step In?

PHMSA’s approach to state enforcement of damage prevention laws was a “carrot and stick” strategy by making federal dollars available for states to improve their laws and enforcement practices while reserving the possibility of federal intervention. The looming question surrounding the enforcement language remains when and for how long federal involvement will happen. The PIPES Act clearly states that DOT cannot conduct enforcement actions “unless the Secretary has determined that the State’s enforcement is inadequate to protect safety, consistent with this chapter, and until the Secretary issues, through a rulemaking proceeding, the procedures for determining inadequate State enforcement of penalties.’’

In other words, DOT (PHMSA) cannot get involved with enforcement of state laws until the parameters of their jurisdiction are clearly articulated through the federal rulemaking process. More importantly, procedures must be clearly established before PHMSA can declare state enforcement inadequate.

We Need Your Input Now

Since passage of the PIPES Act, PHMSA has maintained that it is not their intention to interfere with state damage prevention laws, including enforcement of them. To their credit, PHMSA is taking a “go slow” approach to the implementation of these provisions by publishing an ANPRM to solicit input from stakeholders before moving forward with an official proposal.

That will take substantive input from all affected, including NUCA. It’s important to recognize what’s at stake: If states are going to be put on notice about their damage prevention laws and enforcement practices, everything under their jurisdiction will be reconsidered and reevaluated.

So, the case must be made that facility operators should be held accountable in cases where facilities are not marked or mismarked. Downtime incurred by the excavator should be considered when enforcing damage prevention laws, and if those damages are not included in the state law, they should be. Excavators have had the finger pointed at them for a long time — let’s level the playing field as best we can. The possibility of federal enforcement should not be taken lightly, but neither should the opportunity that comes with it. NUCA chapters and members alike should compare their damage prevention laws with the nine elements and send us your comments. Your input will go a long way.

Eben Wyman is NUCA Vice President of Government Relations.