Page 6 - West Virgina 811 Magazine 2020 Issue 3

West Virginia’s Enforcement Program Status
Article submitted by Courtlandt Smith, WV811 Board President and Carrie Clendening, WVDPB Executive Director. All comments or questions should be directed to carrie@wv811.com.
While one-call laws vary from state to state, they all share several basic elements including communication, standardization and enforcement. After examining the variances in state law, and the varying degree to which different states enforced the law, Congress decided that a nationwide approach to one-call law would not work. However, it recognized that some level of enforcing compliance was necessary to protect excavators
and the public. In the end, it granted Pipeline and Hazardous Materials Safety Administration (PHMSA) authority to bring enforcement action against violators through the Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006. PHMSA’s mandate has been renewed every five years since the adoption of the PIPES Act of 2006. The most recent updates
to the PIPES Act came in 2016 and the
2021 reauthorization. As part of these updates, PHMSA was given authority
to conduct its own enforcement
against violators in states deemed to have insufficient excavation damage prevention enforcement programs. PHMSA issued a final rule in July
2015, which established the criteria
for evaluating state programs, and began notifying states in late 2016.This allows the agency to enforce federal standards within these states, including federal civil penalties which range from $205,000 per day for a violation up to a maximum of more than $2 million for a series of related violations.
PHMSA’s evaluation of state enforcement has centered around whether each state’s damage prevention laws are sufficient and whether states are enforcing the laws. As of July 13, 2020, seven states and the District
of Columbia were deemed to have
inadequate enforcement.
Those states include Alabama, Alaska, California, Colorado, Delaware,
Florida, West Virginia and Wisconsin. At least 12 states, Alabama, Arkansas, Colorado, Maryland, Michigan, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania and Tennessee, have revised their one-call laws since 2010. In 2018, significant changes were made to the West Virginia law to enhance enforcement so that the state could be deemed adequate.
In December 2020, PHSMA will review West Virginia’s Enforcement Program adequacy and issue an opinion on our progress since December 2019. Based off the flow chart below, West Virginia should reach adequate status with
its next review. The recent work of establishing the West Virginia Damage Prevention Board takes our status from 3a. to 7.
Evaluating Adequacy of State Enforcement Programs
Evaluating Adequacy of State Enforcement Programs
1.
State has authority to enforce DP law using CP and other sanctions?
Yes
2. Yes State has designated
enforcement authority / agency?
No
3.a. Yes State is assessing
civil penalties and other appropriate sanctions for violations?
No
3.b.
State assesses penalties at levels sufficient
to deter noncompliance?
Yes/No
No
3.c. Statemakesinformation Yes/No
available to public to demonstrate program effectiveness?
State Enforcement Program Deemed Inadequate
State Enforcement Program Deemed Inadequate
4. Enforcement authority has reliable means to learn of pipeline excavation damage?
Yes/No
5.
State investigates adequately to determine damage responsibility?
Yes/No
Yes
State Enforcement Program Deemed Adequate?
No
6.
State DP law includes minimum Federal pipeline safety requirements?
Yes/No
PHMSA Enforcement Not Applicable
PHMSA Determination of State Enforcement Program Adequacy
7.
State limits excavator exemptions to State DP law?
Yes/No
PHMSA Enforcement Applicable
4 • West Virginia 811
2020, Issue 3
State Enforcement Program Deemed Inadequate