PHMSA has recently issued a Final Rule establishing review criteria for state excavation damage programs, as well as a process for enforcing Federal excavation damage requirements in states with inadequate excavation damage prevention enforcement. The Final Rule will be published in tomorrow’s Federal Register and is effective January 1, 2016.
The Final Rule establishes the following:
- Criteria and procedures for determining the adequacy of state pipeline excavation damage prevention programs;
- The administrative process PHMSA will using in making a determination of the adequacy of a state’s excavation damage program;
- Federal requirements PHMSA will enforce in states with inadequate excavation damage law enforcement programs; and
- The adjudication process for administrative enforcement proceedings against excavators where Federal authority is exercised.
The Final Rule is an outgrowth of 2006 amendments to the Federal Pipeline Safety Act (49 U.S.C. § 60101 et seq.), which gave PHMSA limited authority to conduct enforcement proceedings against excavators for certain actions in states that inadequately enforce their excavation damage prevention laws. 49 U.S.C. § 60114(f). These amendments require that PHMSA determine that a state’s excavation damage enforcement program is inadequate to protect safety before taking its own enforcement action for violations within the boundaries of that state; they also require PHMSA to use the rulemaking process to prescribe procedures for making such a determination. Id.
The Final Rule is the culmination of this required rulemaking proceeding. It creates a new 49 C.F.R. Part 196, prescribing the minimum excavation damage prevention requirements that PHMSA will enforce in states with inadequate excavation damage enforcement programs (as determined by PHMSA). While most of the new Part 196 requirements apply to excavators, they also provide for PHMSA enforcement of existing requirements applicable to pipeline operators (including those specified in 49 C.F.R. Parts 192 and 195, and 49 U.S.C. 60114) where an operator fails to properly respond to a locate request or to accurately locate and mark its pipeline. In addition, the Final Rule creates new provisions in 49 C.F.R. Part 198 pertaining to how and when PHMSA will evaluate State programs, and what criteria PHMSA will use in evaluating such programs.