PHMSA Releases Excavation Enforcement Final Rule
By R. Bruce Kershner, NUCA of Florida Director of Government Affairs
On July 13, 2015, the U.S. Department of Transportation's Pipeline and
Hazardous Materials Safety Administration (PHMSA) announced the
issuance of a final rule to establish the process for evaluating state
excavation damage prevention programs and enforcing federal
standards in states where such requirements are inadequate or do not
exist. PHMSA is the federal safety authority with oversight of the
transmission or distribution pipelines used to transport any refined
petroleum product or hazardous/highly volatile liquid. The final rule
was published in the Federal Register on July 23, 2015. The effective
date of the Rule is January 1, 2016.
The Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006 directed PHMSA to
develop criteria for evaluating the adequacy of state damage prevention laws, and authorized PHMSA to
take civil enforcement action against excavators who violate safety requirements. PHMSA published an
Advanced Notice of Proposed Rulemaking on the excavation damage rule in 2009 and a Notice of
Proposed Rulemaking in 2012.
On the surface, this may not seem onerous to members of NUCA of Florida. However, a closer look at
the Rule suggests that it goes beyond determining the adequacy of a state’s pipeline excavation damage
prevention laws or one-call laws. The rule would strengthen PHMSA’s ability to take enforcement action
against anyone who violates pipeline damage prevention requirements.
Under the new Rule, PHMSA will have enforcement authority against excavators for violations in states
with inadequate excavation damage prevention law enforcement programs; and the adjudication process
for administrative enforcement proceedings against excavators where federal authority is exercised.
Highlights of the new Rule:
PHMSA can assess civil and criminal penalties for violations of 49 CFR Part 196.
PHMSA will evaluate state enforcement programs annually. If deemed inadequate the state has
five years after notification to meet PHMSA’s criteria.
PHMSA wants the states to enforce and MAY take immediate action against excavators in states
with ineffective enforcement.
PHMSA recognizes some exemptions are needed and will allow limited exemptions. Exemptions
for certain categories of excavators are discouraged, (i.e., pest control).
PHMSA currently has 200 team members…in the process of hiring 109 more.
In addition, PHMSA will take the next steps:
Develop a checklist/guidance that expands on policy document.