Government: PHMSA Sets Standards for State Excavation Policies

September 2015, Vol. 242, No. 9

House members of both parties drubbed the latest top PHMSA official to appear before Congress to answer questions about lagging pipeline safety rule implementation.

Stacy Cummings, the interim executive director and apparently top official at the Pipeline and Hazardous Materials Safety Administration (PHMSA), was calm and vague at a hearing July 17 in the House Energy and Commerce Committee. She defended the agency by pointing to one new rule on state excavation programs and one proposed rule on excess flow valves which had been issued in the past month. She said other final and proposed rules required under the 2011 Pipeline Safety Act (PSA) would be out by the end of 2015.

At the last congressional hearing in April before the House Transportation Committee, PHMSA was represented by acting Administrator Timothy Butters, who left June 8 to take a senior position at the Federal Aviation Administration. The Obama administration nominated Maria Therese Dominquez to be administrator and on Aug. 5 she was finally confirmed by the Senate.

The agency has only finalized one-third of the 42 mandates in the 2011 law. Cummings cited the July-published final rule on state excavation damage programs and a same-month proposed rule on excess flow valves as an indication the agency was on the job. The excavation damage rule was required by the 2006 PIPES Act. Excess flow valves were one of the 42 PSA mandates.

The final rule on state excavation programs establishes nine requirements for state programs. If a state’s law doesn’t meet all nine, PHMSA can take civil action against excavators in those states. All states have damage prevention programs, many with one-call responsibilities accruing to excavators, but two are the same. Many are actually stronger than what is required by this final rule. Even in the absence of this final rule, PHMSA has periodically checked the states and rated them on the nine requirements.

Probably half to two-thirds of all states are rated as meeting all nine requirements. Most of the remaining states have met at least seven of the nine. However, the final rule provides additional details about what a state has to do to qualify as having met a particular requirement.

For example, enforcement is one of the nine state program requirements. In the final rule PHMSA said it will judge state adequacy on issues such as whether the state is assessing civil penalties and other appropriate sanctions for violations at sufficient levels and whether the enforcement authority has a reliable mechanism (such as mandatory reporting, complaint-driven reporting) for learning about excavation damage to underground facilities.

Scott Berry, director of Utility Infrastructure Division, Environment and Trade, Associated General Contractors, said his group is glad the final rule has been finally published. He believes that even states rated as meeting all nine requirements may be encouraged to upgrade some of their programs. PHMSA will survey each state annually, and if it finds that no enforcement is happening, that state could be moved from the “in compliance” to the “out of compliance” category.

There were a number of issues which cropped up during PHMSA’s rulemaking process. The National Utility Contractors Association (NUCA) suggested PHMSA include in the final rule a provision requiring pipelines to reimburse excavators for costs associated with any accident caused by a failure on the part of the pipeline or its contractors to accurately mark a pipeline. NUCA stated this should include any damages to the excavator’s equipment or property and any downtime incurred by the excavator while the true location of the pipeline is determined.

In the final rule, PHMSA answered, “It would be an inappropriate use of federal regulations to entitle any specific group to downtime compensation.”

Gas Distribution Groups Take Issue with Aspects of EFV Proposal

The gas distribution industry apparently has no problem with the objectives of the PHMSA-proposed rule on excess flow valves, but they have decided problems with how some objectives may be implemented.

Christina Sames, vice president, Operations and Engineering for the American Gas Association (AGA), says, “The AGA and its members support expanding the use of excess flow valves in new and fully replaced service lines to applications other than single-family residences where operating conditions allow their use.”

But Sames did not give the proposal a blanket endorsement, noting concerns about elements that are beyond the expansion of EFVs. AGA will provide comments and will suggest modifications that will make the proposal “reasonable, feasible and practical.”

John Erickson, P.E., vice president, Operations, American Public Gas Association, is more specific. “APGA supports the EFV installation portion of the rule proposed by PHMSA. We have major concerns with the proposal that operators notify all customers about EFVs and install an EFV on an existing service if the customer requests one.”

PHMSA has not addressed how operators will handle multiple customers on a single service line. Erickson states PHMSA leaves cost recovery up to the “appropriate state regulatory agency” apparently not understanding that only about 25% of the distribution operators PHMSA regulates are under state PUC jurisdiction for rates. Few of APGA’s 729 members have PUCs approve their rates.

Installing an EFV with a new service line is relatively inexpensive ($20 or less), retrofitting an EFV on an existing line will be expensive ($500 to over $1,000). It could easily exceed the customer’s entire annual gas bill, Erickson said. If a significant number of customers request retrofitting an EFV on their service lines in the initial notification, it could divert a large portion of the utility’s construction crews from more important main replacement projects.

The proposed rule says curb valves should be accessible to first responders as well as distribution company personnel. A buried curb valve looks no different at ground level than a buried mainline valve, so Erickson worries firefighters could inadvertently close the wrong valve and shut off gas to hundreds or thousands of customers. Worse yet, they could open a valve that should remain closed. Suggesting these valves be accessible to first responders other than utility personnel “is a terrible idea,” he says.

There has been a push for over a decade to expand the use of EFVs. The National Transportation Safety Board (NTSB) has been a leading advocate based on investigations and recommendations it has issued going back to a 1998 incident in South Riding, Virginia. The NTSB has investigated an additional eight incidents.

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