State Damage Prevention Law Enforcement Program Evaluations
What is the schedule of State program evaluations?
The schedule of State program evaluations will be made available at http://phmsa.dot.gov/pipeline/safety-awareness-and-outreach/excavator-enforcement/faqs as it is developed.
Where can I see PHMSA's progress in evaluating State programs?
PHMSA's progress in evaluating State programs will be made available at http://phmsa.dot.gov/pipeline/safety-awareness-and-outreach/excavator-enforcement.
If PHMSA declares a State enforcement program inadequate, does the state damage prevention law remain in effect?
Yes. If PHMSA declares a State enforcement program inadequate, that State's damage prevention law still remains in effect. A declaration of inadequacy simply clears the way for PHMSA to take targeted federal enforcement action against an excavator or other party that unlawfully causes damage to a pipeline that is regulated by PHMSA or the state.
If PHMSA declares a State enforcement program inadequate, will PHMSA take over that State's damage prevention program?
No. PHMSA is not taking over any State damage prevention programs. A declaration of inadequacy simply clears the way for PHMSA to take targeted federal enforcement action against an excavator or other party that unlawfully causes damage to a pipeline that is regulated by PHMSA or the state.
Will PHMSA consider other enforcement tools, such as warning letters and mandatory training, as well as civil penalties in determining whether a State has an adequate excavation damage law enforcement program?
PHMSA will consider the use of other enforcement tools besides civil penalties. However, the State must have the authority to issue civil penalties as part of its enforcement program. In addition, if States have not used civil penalties but have used other enforcement tools, PHMSA will seek evidence that the use of other tools has been effective in improving safety.
How will States be notified that PHMSA has deemed the excavation damage law enforcement program inadequate?
PHMSA will notify the proper authorities in the State, which will vary from State to State. In addition to notifying the proper authorities, PHMSA will also directly notify the governor of the State.
Is PHMSA evaluating each State's entire damage prevention law enforcement programs, or only those aspects of the State's program pertaining to pipelines that are regulated by the State and/or PHMSA?
PHMSA will evaluate only the aspects of each State's damage prevention law enforcement program that pertain to pipelines that are regulated by PHMSA and/or the State.
Will points be deducted from a State pipeline safety program annual evaluation if that program does not have damage prevention authority?
If PHMSA declares a State to have an inadequate enforcement program, the State has five years to implement an adequate program. After five years, the State may be subject to a 4% reduction in PHMSA base grant funding to the State. However, the reduction is not automatic. In accordance with the rule, States can petition PHMSA to delay the base grant funding reduction pending improvements to the State damage prevention law enforcement program. PHMSA’s goal is to create a financial disincentive for States not acting to improve their damage prevention law enforcement programs. State pipeline safety offices can influence damage prevention policy and can work with partners at the State level to implement improvements. The potential 4% reduction in base grant funding should serve as leverage for the States to improve their programs. PHMSA stands ready to assist states with improving their excavation damage prevention law enforcement programs. For more information about how PHMSA can help to improve State enforcement programs, email excavation.enforcement@dot.gov.
Does PHMSA expect State damage prevention law enforcement programs to have the authority to levy civil penalties that are equal to PHMSA’s civil penalty levels?
No. PHMSA expects States to simply have civil penalty authority in their damage prevention laws and to use their civil penalty authority (and/or other sanctions) to discourage noncompliance with State damage prevention laws. PHMSA does not expect State civil penalty maximums to match PHMSA’s civil penalty maximums.
Does PHMSA expect each State to have only one agency or entity that enforces the State damage prevention law?
No. PHMSA is evaluating each State’s entire damage prevention law enforcement program for adequacy. PHMSA does not expect all enforcement activities to be consolidated under one agency or enforcement body. PHMSA expects that some States will have more complex enforcement mechanisms than others, depending on the requirements of each State’s excavation damage prevention law and the internal policies of each State.
Can States use PHMSA base grant funding for excavation damage prevention law enforcement activities?
Yes. However, States may only use PHMSA base grant funding for enforcing excavation damage prevention requirements pertaining to pipeline operators regulated by the State. For more information, contact Zach Barrett at zach.barrett@dot.gov.
How will PHMSA determine who to meet with in States where the damage prevention laws are not enforced through the State pipeline safety program?
PHMSA has identified the entities in each State having enforcement authority for each State’s excavation damage prevention law (assuming enforcement authority exists). PHMSA has sent letters about the rule and PHMSA’s intent to evaluate State enforcement programs to the enforcement organizations and the governor in each State. For all State enforcement program evaluations, State pipeline safety offices will be invited to attend the evaluation meetings even if enforcement is not vested in the State pipeline safety program.
What is the timeframe in which PHMSA will issue the findings of its program evaluations to each State?
PHMSA has not determined a specific timeline for issuing the findings of each program evaluation. However, PHMSA intends to issue findings within several months of each program evaluation.
How long does each State damage prevention law enforcement program evaluation take?Typically, evaluations take approximately three to four hours.
Does PHMSA expect State enforcement programs to demonstrate ongoing reduction in excavation damage rates, even if damage rates are already very low as a result of a strong damage prevention program that includes adequate enforcement?
No. States with long-established, adequate damage prevention programs including enforcement will often experience a "plateau" in the rate of excavation damages. Excavation damage rates are influenced by multiple factors, including enforcement of the damage prevention law. States should be able to explain the factors contributing to the apparent damage rates in each state. However, PHMSA is not evaluating the adequacy of State enforcement programs based solely on the variability in excavation damage rates.
Federal Enforcement Action in States with Inadequate Enforcement Programs
When can PHMSA take enforcement action in a State that PHMSA deems to have an inadequate enforcement program?
PHMSA may take enforcement action in a State at any time following a final finding of inadequacy.
Will PHMSA take enforcement action against an excavator even if that excavator (or the excavator's activity) is exempt from the requirements of State damage prevention law?
There are no exemptions from the federal standard defined in 49 CFR Part 196, Subpart B. When conducting enforcement in a State with an inadequate damage prevention law enforcement program, PHMSA will be cognizant of the requirements – including exemptions – in that State's law.
Will PHMSA take enforcement action against a pipeline operator that is determined to be at fault in an excavation damage incident?
Yes. If PHMSA decides to pursue enforcement activity in a specific case, and if a pipeline operator is determined to be at fault for a damage (e.g., due to failure to locate and mark their pipelines in an accurate and timely manner), PHMSA can pursue enforcement action against that pipeline operator.
What will trigger PHMSA enforcement action?
PHMSA's authority should be considered federal "backstop" authority. PHMSA will use its regulatory discretion in determining when to initiate enforcement action. PHMSA will focus on serious violations of the regulation, since the purpose of this rule is to encourage states to enforce their own damage prevention laws.
Will PHMSA take action when there is a damage involving non-pipeline facilities, such as telecommunications or electric facilities?
No. PHMSA will only take targeted action when there is a damage involving regulated pipeline facilities, as described in the rule.
When PHMSA takes enforcement action against excavators, will the action be taken against the prime contractor or will PHMSA also take action against sub-contractors?
PHMSA will seek to take targeted enforcement action against violators of the federal rule in an excavation damage incident, as determined through a thorough investigation of the incident.
If a damage incident occurs in a State where PHMSA has deemed the State to have an inadequate damage prevention enforcement program, and if PHMSA takes enforcement action, can the State authority also take enforcement actions against violators of the State damage prevention requirements?
PHMSA will encourage States to enforce their own requirements wherever possible. If a State chooses to adequately enforce its own requirements in a specific case, PHMSA will not pursue federal enforcement action.
What does PHMSA expect of a State when excavation damage affects an interstate pipeline that is not regulated by the State?
State damage prevention laws typically (but not always) apply to all underground pipelines, regardless of whether the pipelines are regulated by the State or PHMSA. If excavation damage occurs on an interstate pipeline, and if the damage is the result of a violation of State damage prevention law, the State should enforce that law even if the pipeline is regulated by PHMSA. Violations of 49 CFR Part 192 or 195 (damage prevention regulations applicable to pipeline operators) should be enforced by the regulator having authority (usually PHMSA for interstate pipelines and States for intrastate pipelines, but not always).
