PHMSA Update: Damage Prevention Initiatives

1. Annmarie Robertson Office of Pipeline Safety 317-253-1622 annmarie.robertson@dot.gov PHMSA Update: Damage Prevention Initiatives

2. Presentation Overview • PHMSA damage prevention efforts • Overall • Understanding state programs • Rulemaking • Related projects (PIPA, Public Awareness) • Grants • What’s next? (Questions welcome)

3. Damage Prevention: Why Does PHMSA Care? When a pipeline is damaged during excavation, people are almost always nearby

4. Serious Incidents: 1990 - 2009

5. Gas Transmission Incidents

6. Gas Distribution Incidents

7. Damage Prevention: PHMSA’s View A shared responsibility Pipelines are critical infrastructure that are essential to our way of life. They also carry hazardous materials that pose risks to people and the environment. Damage prevention is a multi-faceted issue The “Nine Elements” PIPES Act contained many damage prevention components (including Nine elements)

8. Nine Elements of EffectiveDamage Prevention Programs Effective communication between operators and excavators from excavation notification to completion of excavation Fostering support and partnership of all stakeholders Operators’ use of performance measures for locators Partnership in employee training Partnership in public education A dispute resolution process that defines the enforcement agency as a partner and facilitator Fair and consistent enforcement of the law Use of technology to improve damage prevention processes Data analysis to continually improve program effectiveness

9. Key Points in Considering the Nine Elements Damage prevention is a shared responsibility, but damage prevention is largely executed at State and local levels. There is considerable variability between the provisions of State damage prevention laws and programs. One size does not fit all. Damage prevention decisions should be based on experience and data in each State but should contain certain key components

10. PHMSA Damage Prevention Partners • States • Common Ground Alliance • Industry/trade associations • Operators • Excavators • Locators • Public • Other Safety Organizations (NASFM, NEF, NTDPC, NSC)

11. Common Ground Alliance • PHMSA Supported – both financially and via participation in committees • Important Initiatives • 811 • Best Practices • Damage Information Reporting Tool • Committee work • Kids’ Safety video • Safe Digging Month • www.commongroundalliance.com

12. Damage Prevention : Our Approach to Addressing the Issue • PHMSA Damage Prevention Efforts include many components • Partnership/Collaboration • Funding • Communication • Research and Development • Data Collection and Analysis (“DIRT”) • Regulatory actions, Consensus Standards

13. PHMSA PipelineDamage Prevention Initiatives

14. PHMSA Damage Prevention Efforts • Goal: Develop Tools for PHMSA as well as for states • Make information transparent (after vetting) • Make information easily accessible on PHMSA web site • State laws • State data on excavation damage • Status of states with respect to Nine Elements • PHMSA-funded grant projects in states • Guidance material • Links to State DP Web sites

17. PHMSA Damage Prevention Efforts http://primis.phmsa.dot.gov/comm/publications/DPAP-Guide-FirstEdition-20080911.pdf

18. PHMSA DP Efforts – Characterizing States PHMSA’s goal is to strengthen state damage prevention programs PHMSA needs clear documentation of state programs to explain funding decisions and to show progress over time PHMSA is characterizing state damage prevention programs compared to the nine elements Characterization Tool project

19. PHMSA DP Efforts: Characterization Tool “PHMSA’s goal in this effort is to gain a better understanding of the variability in state damage prevention programs across the United States at a level of detail that will assist PHMSA with making decisions regarding where and how to apply resources...PHMSA has created this document as the foundation of the state damage prevention program characterizations. The purpose of this effort is not to assign scores to states’ damage prevention programs or to compare state programs against each other. Rather, this effort is designed to illustrate damage prevention program strengths and areas that could use improvement relative to the nine elements….”

20. PHMSA DP Efforts: Characterization Tool

21. Characterization Tool = Largely implemented program element = Partially implemented or not fully developed program element; actions are underway or planned for improvements = Partially implemented or not fully implemented program element that needs improvement; no actions are currently underway or planned for improvements = Program element is not implemented and needs to be addressed = No information available or not applicable

22. Characterization Tool Resultshttp://primis.phmsa.dot.gov/comm/sdppc.htm

23. CT Results – Element 1

24. CT Results – Element 2

25. CT Results – Element 3

26. CT Results – Element 4

27. CT Results – Element 5

28. CT Results – Element 6

29. CT Results – Element 7

30. CT Results – Element 8

31. CT Results – Element 9

32. Characterization Tool – Seeking Feedback • Initial results are from interviews with pipeline safety and one-call representatives only • Feedback link on web page • Feedback will be routed to PHMSA and will be distributed to states • Characterization Tool results on website subject to change based on feedback and discussion • Coming soon: State-level damage prevention pages on web site

33. Characterization Tool • Lessons learned from Characterization Tool project: • Results varied based on participants’ approach • Overall positive response to initiative • There is perceived value in keeping information current • Options for path forward: Updates submitted by states, periodic PHMSA outreach?

34. PHMSA DP Efforts : Laws and Legislation • PHMSA documenting state DP laws and regulations in cooperation with the NTDPC • Working with states pursuing changes to One Call laws • Letters to stakeholders • Meeting with stakeholders to provide PHMSA’s perspective • May not lobby, but can educate

35. PHMSA’S DAMAGE PREVENTION ENFORCEMENT AUTHORITY

36. PHMSA DP Efforts: Enforcement PHMSA currently has enforcement authority over pipeline operators and their contractors Statutory mandate from Congress through the Section 2 of the PIPES Act of 2006 Conveys authority to DOT to take enforcement action against excavators who fail to comply with One Call laws and damage a pipeline facility Enforcement authority is LIMITED Intent is to incentivize States to adopt/use enforcement authority

37. Federal Damage Prevention Enforcement The PIPES Act Also States: An excavator who causes damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property: Must promptly report the damage to the owner or operator of the facility; and If the damage results in the escape of any flammable, toxic, or corrosive gas or liquid, the excavator: Must promptly report to other appropriate authorities by calling 911

38. Third-Party Excavator Enforcement Rulemaking • PIPES Act: PHMSA can enforce against 3rd-party excavators • PHMSA focus on state improvements • Rulemaking required to define: • Criteria used to evaluate states’ enforcement programs • Administrative process for states to contest notice of inadequacy • Federal standards PHMSA will enforce • Adjudication process for violators

39. 10/29/2009: PHMSA Issued ANPRM • ANPRM = Advance Notice of Proposed Rulemaking • http://www.regulations.gov, Docket ID PHMSA-2009-0192 • Soliciting feedback on: • Criteria and process for determining if a state’s enforcement of damage prevention laws is adequate • Standards and process to be used in federal enforcement in the event a state enforcement program is determined to be inadequate • Goal is to minimize need for federal enforcement

40. ANPRM – requested comments on: • Possible considerations for determining adequacy of state damage prevention programs: • Does state law require participation in One Call by all operators and excavators – minimizing exemptions • Are state requirements detailed enough for excavators to understand responsibilities? • Are excavators required to report all pipeline damages? Call 911 in the event of a release?

41. ANPRM – requested comments on: • Considerations cont. • Has state agency established a reliable mechanism to ensure it received reports of pipeline damage incidents on a timely basis? • Is there a state enforcement agency designated? Does it act on its authority? • Does state have data/statistics on enforcement actions and/or damage information?

42. ANPRM - PHMSA seeks comments on: • Administrative process: generally – • Written notification from PHMSA to state indicating damage prevention enforcement considered inadequate • State may submit written response materials • PHMSA final written determination with opportunity for reconsideration if state petitions • States may later show improvement in enforcement and request discontinuance of federal enforcement

43. ANPRM - requested comments on: • Administrative process – generally: • Annual PHMSA evaluation of state DP enforcement • including review of all actions by state in previous year • If previously deemed inadequate, PHMSA enforcement continues • Should process enable PHMSA to conduct enforcement on single incidents when state determined not to pursue enforcement?

44. ANPRM - requested comments on: • Federal Standards for Excavators • Should standards enforced be based on language in U.S. Code or be expanded? • Will implementing 911 requirement result in unintended consequences? • Alternatives to these standards • Common Ground Alliance Best Practices • API RP 1166, Excavation Monitoring and Observation

45. ANPRM - requested comments on: • Adjudication Process for excavators: • Written notice, including basis for allegations of violation • Written response • Right to request hearing, be represented by counsel, examine evidence, submit info, call witnesses • Hearings at one of five PHMSA office • Opportunity for reconsideration, judicial review process similar to other agency actions

46. ANPRM - requested comments on: • Adequacy of existing requirements for pipeline operators, such as: • Timeframe for responding to locate requests • Accuracy of locating/marking • Making operator personnel available for consultation with excavators following receipt of notice

47. PHMSA’s Views on Enforcement Effective, balanced enforcement reduces excavation damages to pipelines Enforcement responsibility is inherently a State responsibility PHMSA enforcement is limited to violations that affect jurisdictional pipelines Enforcement is only one aspect of effective damage prevention programs (see the nine elements)

48. Enforcement: What’s Next? • We are at an early stage • PHMSA is evaluating the comments received on the ANPRM • Based on comments received, PHMSA will issue NPRM (fall 2010) • More opportunity to provide input to the rulemaking process

49. Damage Prevention – Public Awareness • 49 CFR 192.616 adopts API RP 1162 into reference (1st edition) • Operators must conform to 1162 or provide justification as to why conformance is not appropriate. 1162 elements: • Message content by audience • Frequency of message delivery • Methods for delivering messages • Evaluation Master meter operators have relaxed requirements

50. Public Awareness Inspections • June 2010: Operators’ initial four-year evaluation of effectiveness due • Pipeline Safety inspection program will incorporate a review of operator effectiveness evaluations (NTSB Report reinforced this) • State/federal team established to develop inspection tools (guidance, forms, etc.) • Inspection focus areas: • Did the operator implement based on written program? • Did operators evaluate program for effectiveness? • What evaluation methods/processes used? Results documented? • What knowledge was gained?Documented?