PHMSA Pipeline Excavation Damage Prevention Enforcement NPRM

The Monday Federal Register (77 FR 19800-19834) contains a notice of proposed rulemaking (NPRM) from the Pipeline and Hazardous Material Administration (PHMSA) outlining proposed rules for the evaluation of State pipeline excavation damage prevention enforcement programs and establishing the process by which PHMSA will enforce such programs in States with inadequate protections in place.

According to the NPRM Objective this rulemaking is required by the Pipeline Inspection, Protection, Enforcement and Safety Act of 2006 (PIPES Act) and must be in place before PHMSA can “conduct an administrative enforcement proceeding against an excavator for violating Federal excavation standards” (77 FR 19801).

The NPRM notes that, while all 50 states have pipeline damage prevention laws on the books, no two laws are identical in their provisions. PHMSA has provided a summary of the provisions of each of the individual state laws on their web site.

The PIPES Act provides authority to the Secretary of Transportation to take civil enforcement actions against excavators. Again, this authority may only be exercised if PHMSA determines that the State enforcement program are inadequate. The actions that can trigger DOT civil enforcement proceedings include:

• Fail to use the one-call notification system;

• Disregard location information or markings; or

• Fail to report excavation damage to the pipeline owner or operator.

This NPRM proposes to establish:

• The criteria and procedures to be used to determine the adequacy of state pipeline excavation damage enforcement programs;

• An administrative process for states to contest notices of inadequacy;

• The Federal excavation requirements PHMSA will enforce in states with inadequate enforcement programs; and

• The adjudication process for administrative enforcement proceedings against excavators.

PHMSA is soliciting public comments on this NPRM. Such comments may be submitted via the Federal eRulemaking Portal (www.regulations.gov; Docket # PHMSA-2009-0192). Comments must be submitted by June 1, 2012.