Page 22 - West Virgina 811 Magazine 2020 Issue 3

Recently a friend asked me
if I could offer my opinion regarding the effectiveness
of state-level enforcement of pipeline excavation damage prevention programs. More specifically, are
there fewer excavation damages to underground pipelines in states that have strong enforcement versus states that have less robust programs?
Seems like a simple question – but it is anything but simple. The first issue is what kind of pipelines? There are three kinds of hazardous liquid (49 CRF
Part 195) pipelines: transmission lines, gathering lines and non-jurisdictional lines. Gas (49 CFR Part 192) pipelines are a lot more complicated. The four major categories are transmission lines, gathering lines, distribution lines (all Part 192 lines that are not transmission or gathering) and non-jurisdictional lines.
PHMSA (the US DOT’s Pipeline
and Hazardous Materials Safety Administration) keeps records on
all jurisdictional pipelines. But the records are not consistent from year to year. Every time the PHMSA reporting forms change, the information changes and it gets more difficult to compare performance from year to year. The quantity of data is mind boggling. Making sense of it is even more mind boggling.
The Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006, required PHMSA to establish review criteria for state excavation damage prevention law enforcement programs to allow PHMSA to conduct
Enforcement
enforcement against an excavator
in the absence of adequate state damage prevention programs. The final rule was published July 23, 2015 (80 FR 43836 – 43868, [Docket No. PHMSA–2009–0192; Amdt. No. 196–1; 198–7]) and took effect January 1, 2016. This rule was necessary because the states are the primary enforcers of damage prevention programs and PHMSA had to determine that a state program was inadequate before going directly after violators in the affected state. If you have time, it is worth reading.
I retired from PHMSA October 31, 2012 – before the final rule was published. But I was involved in the early stages of trying to develop criteria for an “effective damage prevention program.” The final criteria are found in 49 CFR §198.55. What criteria will PHMSA
use in evaluating the effectiveness of state damage prevention enforcement programs? If memory serves me, there were originally only 10 or so states that failed to meet the criteria and were
at risk of losing part of their federal funding for pipeline safety programs (As an aside, the current PHMSA Guidelines for States Participating in the Pipeline Safety Program consists
of 689 pages of legalese. The only two states that do not participate are Alaska and Hawaii where PHMSA exercises direct authority. All the other states
get up to 80% of their eligible pipeline safety program expenses). Those that were inadequate were primarily due to lack of legislative authority at the time. Most, if not all, of the enforcement inadequacies have been corrected and I
by John Jacobi
would be surprised if any state has lost significant funding. I do believe that PHMSA-initiated excavation damage actions directly against excavators in
a very few cases, but I am not familiar any final outcomes.
As of today, virtually all state excavation damage programs should meet the minimum standards set by 49 CFR §198.55.
There is no doubt, at least in my mind, that pipeline excavation damage prevention programs work. With the advent of “call before
you dig,” excavation damages have generally trended downward. See PHMSA’s Damage Prevention Page: https://primis.phmsa.dot.gov/comm/ DamagePrevention.htm.
In today’s litigious society, civil liability is, in my opinion, probably as significant as enforcement authority in terms of reducing excavation damage. The overwhelming majority of PHMSA and state pipeline program enforcement is “paperwork” related in that compliance with some regulatory requirement is not or has not been adequately documented. From a regulatory standpoint, if something
is not documented, it did not happen. There is no excuse for the criminals that choose to ignore the rule of law and no good remedy for the victims affected.
John Jacobi retired from PHMSA. For questions or comments, email: jjacobi@sbcglobal.net
20 • West Virginia 811 2020, Issue 3