damage prevention enforcement.ppt giambrone... · steven giambrone office of conservation ... la...

2017 LA DAMAGE PREVENTION SUMMIT

DAMAGE PREVENTION ENFORCEMENT

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Steven Giambrone Office of ConservationPipeline Division Director

PRESENTATION OBJECTIVES

• DAMAGE PREVENTION AUDIT• TITLE 40, 1749.11• HB NO. 389 OF THE 2017 REGULAR SESSION• DAMAGE PREVENTION STATISTICS• CONSERVATION ENFORCEMENT MODEL

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PHMSA DAMAGE PREVENTION AUDIT• All Pass/Fail questions were passed• Must score 70% (181/258) to pass the audit• State scored 168/258 (65%)

• WHERE DID WE FALL SHORT?

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PHMSA DAMAGE PREVENTION AUDIT – ENFORCEMENT ACTIONS • 3.b.6 - How does the enforcement organization assess

the effectiveness of enforcement actions over time?o Louisiana does not analyze data or assess

effectiveness.o DNR reviews damage data from annual reports and

3rd party damage trends are moving down (but are now are going back up).

o Partial credit (10/20)

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PHMSA DAMAGE PREVENTION AUDIT – ENFORCEMENT ACTIONS

• 3.b.7 – What are the results of the enforcement program?o Louisiana does not analyze data to mitigate risks,

target geographic areas or tweak its enforcement program

o No points (0/20)

• PHMSA is focused on data driven enforcement!

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PHMSA DAMAGE PREVENTION AUDIT – ENFORCEMENT ACTIONS• 3.c.1 – Does the enforcement organization make

information about enforcement actions publicly available?o Louisiana does not publish enforcement information

online. Info is only available through a FOIA request.o No points (0/10)

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PHMSA DAMAGE PREVENTION AUDIT – DATA GATHERING• 4.a – Does the enforcement organization have a reliable

mechanism (e.g., mandatory reporting, complaint-driven reporting) for learning about excavation damage to pipelines?o Only damages that meet the threshold for hazardous

material releases under Title 30 & Title 32 are required to be reported.

o Lack of mandatory reporting for all dig-ins leaves a gap in information


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PHMSA DAMAGE PREVENTION AUDIT – DATA GATHERING• 4.d – How does the enforcement organization inform

stakeholders about the process for reporting excavation damages?o LSP provides presentations as requested and

complaint forms are on their website. No damage reporting info on the 811 website and enforcement process needs more detail on the LSP website. The state should ensure coordination between LSP and One Call to educate stakeholders.

o Significant Gap, no reporting on a dig-in with no release

o Partial credit (3/6)8

PHMSA DAMAGE PREVENTION AUDIT – INVESTIGATIONS• 5.c – Does the enforcement organization investigate all

pipeline excavation damages it learns about (in the field or in the office) or use written procedures to determine when an investigation is warranted?o LSP conducts investigations for some incidents that

meet the HAZMAT reporting criteria. LSP takes no actions when a hit does not meet the reporting criteria and local law enforcement takes no actions that we are aware of.


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PHMSA DAMAGE PREVENTION AUDIT – INVESTIGATIONS• 5.f – When made aware of excavation damage to a

pipeline, does the enforcement organization take enforcement action against the violator of the State’s excavation damage prevention requirements in every case?o Similar to questions 5.c, actions only taken in limited

circumstances.o Partial credit (5/10)

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PHMSA DAMAGE PREVENTION AUDIT – INVESTIGATIONS• 5.g – How does the enforcement organization

demonstrate fair and consistent enforcement against violations of the excavation damage prevention requirements by either a pipeline operator or excavator?o LSP did take enforcement action against both

excavators and pipeline operators in 2015; however, only in limited circumstances.


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PHMSA DAMAGE PREVENTION AUDIT – EXEMPTIONS (7.B & 7.D)• EXEMPTIONS

o Under Title 40, Section 1749.13(c), operators and landowners excavating their own underground utilities or facilities on their own right-of-way are exempt from making a One Call provided there is no encroachment on the right of way of any operator.

• 7.b – Does the enforcement organization maintain information that demonstrates the impact of exemptions?

• 7.d – How does the enforcement organization use information about the impact of exemptions?o No tracking is doneo No points (0/12)

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PHMSA’S DETERMINATION

• Of the 258 possible points, we lost 90 points giving the State a score of 168. 181 points (70%) are needed to pass the audit.

• The State received an INADEQUATE rating from PHMSA.

• The determination goes into effect 30 days after receipt of the letter. At that time, PHMSA may enforce the Federal excavation standards defined under 49 CFR Part 196 against an excavator who damages a regulated pipeline.

• PHMSA penalties are as high as $205,638 per violation per day with a maximum of $2,056,380.

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PHMSA’S DETERMINATION (CONTINUED)• The State may still enforce it’s damage prevention laws.• The Pipeline Safety Program may be subject to a loss of

4% in it’s federal funding if the inadequate rating is not rectified within 5 years.

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LA DAMAGE PREVENTION LAW (TITLE 40)

• 1749.11.B“It is the public policy of this state to promote the protection of property, workmen, and citizens in the immediate vicinity of an underground facility or utility from damage, death, or injury and to promote the health and well-being of the community by preventing the interruption of essential services which may result from the destruction of, or damage to, underground facilities or utilities.”

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LA DAMAGE PREVENTION LAW (CONTINUED)

• 1749.13.A“Except as provided in this Section, no person shall excavate or demolish in any street, highway, public place, or servitude of any operator, or near the location of an underground facility or utility, or on the premises of a customer served by an underground facility or utility without having first ascertained, in the manner prescribed in Subsection B of this Section, the specific location as provided in R.S. 40:1749.14(D) of all underground facilities or utilities in the area which would be affected by the proposed excavation or demolition.”

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LA DAMAGE PREVENTION LAW (CONTINUED)

• 1749.23.A“The provisions of this Part may be enforced by the Department of Public Safety and Corrections or by any local law enforcement agency. The Department of Public Safety and Corrections or its designee may provide forms, including citation, complaint, and incident report forms, to other law enforcement agencies for use in enforcement of the provisions of this Part.”

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LA DAMAGE PREVENTION LAW (HB NO. 389)

• 1749.27o Grants the Commissioner exclusive authority to enforce the Damage Prevention Law

on pipeline right of wayso Commissioner may enforce in accordance with his authority under Title 43

Inspection Authority, Penalty Language, Enforcement Letters, Appeal Processo Promulgate regulations to implement the program?

Commissioner may enforce the law; however, certain regulations may need to be developed

Lengthy process, will take 4-6 months Write Regulations Prepare a Fiscal Worksheet

What is the cost to those affected? What is the cost to the State to implement?

A copy is sent to the respective House and Senate Natural Resource Committees

Advertise in the State Register Hold a Public Hearing

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HOW WILL THE PROGRAM BE FUNDED?

• No Additional Fees• Utilize Current Staff

o 6 Office Personnel Work in Baton Rouge office

o 18 Field Staff Work out of their homes, located in all areas of the

stateo 3 Additional Field Staff to be added during FY 17/18o 3 Additional Field Staff to be added in future years

• Conservation has applied for the One Call Grant and the State Damage Prevention Grant (PHMSA Grants)o Could allow for additional personnel

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DAMAGE STATISTICS(GAS DISTRIBUTION)

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DAMAGE STATISTICS(GAS DISTRIBUTION)

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2016 DAMAGE INFORMATION

• Damages increased by almost 500 (1494 to 1984)• Tickets increased by almost 20,000 (502,530 to

522,420)• Rate increased from 2.97 Damages/1000 Locates to

3.80 Damages/1000 Locates

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CAUSES OF DAMAGE - 2016 (2015)

• ONE CALL NOTIFICATION INSUFFICIENT – 524 (431)• LOCATING PRACTICES INSUFFICIENT – 420 (280)• EXCAVATION PRACTICES INSUFFICIENT – 822 (521)• OTHER – 208 (262)

• DATA FIRST CAPTURED IN 2015

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HAZMAT HOTLINE DATA (2016)

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1275 6448

27 1115

29 36154 10

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1012

2815

16 19

Required for releases of 1000lbs or more

SATISFYING QUESTION 3.B.6

• “3.b.6 - How does the enforcement organization assess the effectiveness of enforcement actions over time?”o Initially, by comparing enforcement actions to annual

report and hazmat data, we can determine if enforcement is improving compliance

o In subsequent years we will be able to compare complaints from one year to the next (including locations) to help in determining effectiveness of the program

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SATISFYING QUESTION 3.B.7

• “3.b.7 – What are the results of the enforcement program?”o Hazmat reports will be particularly useful in helping to

identify problem areas to focus enforcemento Annual reports will also be utilized

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SATISFYING QUESTION 4.D

• “4.d – How does the enforcement organization inform stakeholders about the process for reporting excavation damages?”– Conservation will make presentations at LGA

Seminars, PLS Conference, and the Damage Prevention Summit. Damage reporting info can be shared with LA One Call to place on their website and enforcement details can be placed on DNR’s website. We will work with LA One Call to educate stakeholders. However, a significant gap remains with no required reporting on a dig-in.

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EXCAVATOR DATABASE

• Collect excavator contact info (Company Name, Responsible Person, Mailing Address, E-mail Address, etc) from Louisiana State Licensing Board for Contractors

• Use this information for issuing citations/show cause letters

• If complaint involves an unlicensed contractor, we will report the contractor to the licensing board

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HOW TO MAKE A COMPLAINT

• A 1-800 NUMBER WILL BE ESTABLISHED• WHEN WILL THE PHONE BE MONITORED?

o MONDAY – FRIDAY (EXCLUDING HOLIDAYS) NEW YEAR’S DAY, MARTIN LUTHER KING, GOOD

FRIDAY, MEMORIAL DAY, INDEPENDENCE DAY, LABOR DAY, ELECTION DAY, VETERANS DAY, THANKSGIVING (AND DAY AFTER), CHRISTMAS (AND EITHER DECEMBER 24TH OR DECEMBER 26TH), NEW YEAR’S EVE OR JANUARY 2ND

o 8:00 AM – 4:30 PM• THERE WILL BE AN ANSWERING MACHINE

o Leave information concerning the complaint and a call back number.

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HOW TO MAKE A COMPLAINT

• CAN MAKE A COMPLAINT VIA E-MAILo [email protected] COMPLAINANT’S NAMEo COMPLAINANT’S COMPANY (IF APPLICABLE)o PHONE NUMBERo LOCATION OF COMPLAINT (INCLUDE CITY)o LOCATE NUMBERo NATURE OF COMPLAINT

LINE NOT MARKED LINE MISMARKED LINE DAMAGED DIGGING WITHOUT A TICKET (OR WAITING 48 HOURS) UNSAFE DIGGING PRACTICES

o UTILITY OPERATOR/EXCAVATOR NAMEo ADDITIONAL EVIDENCE (PICTURES)

CLOSE UP PICTURE AND A WIDE ANGLE PICTURE 30

HOW WILL CONSERVATION ENFORCE?

• Enforcement will be complaint driveno Phoneo E-mailo Should an agent be passing a dig site, he may stop and ask for a

locate numbero Should help with points on Question 4.a

“Does the enforcement organization have a reliable mechanism (e.g., mandatory reporting, complaint-driven reporting) for learning about excavation damage to pipelines?”

• On-Site Investigations?• Handle complaints en masse?

o Hearing Process• Combination of the two?• Fines or Training?

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HOW WILL CONSERVATION ENFORCE (CONTINUED)?

• WHEN WILL AN AGENT COME OUT TO A SITE?o DIGGING WITH NO TICKET AND EXCAVATOR

WILL NOT CEASEo EXCAVATOR IS DIGGING RECKLESSLYo EXCAVATOR HAS DAMAGED LINE AND

CONTINUES TO DIG IN AN UNSAFE MANNER• PREVENTING DAMAGES WILL BE A PRIORITY

FOR ON SITE VISITS

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• LA RS 40:1749.13.B.5“The excavator or demolisher shall wait at least forty-eight hours, beginning at 7:00 am on the next working day, following notification, unless mutually agreed upon and documented by the excavator and operator to extend such time,….”o Conservation will only accept written documentation

acknowledged by both parties to satisfy the exception under 40:1749.13.B.5.

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• LA RS 40:1749.14.C.1(a)(b)“Each operator of an underground facility….shall supply, prior to the proposed excavation, the following information to the person responsible for excavation: (a)The specific location and type of all of its underground utilities or facilities which may be damaged as a result of the excavation or demolition…… (b)Unless otherwise required by federal or state statutes, the specific location and type of underground utility or facility may, at the operator’s option, be marked to locate the utilities or facilities……”o Conservation will only accept written documentation

acknowledged by both parties to satisfy the exception under 40:1749.14.C.1.a.

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• LA RS 40:1749.14.C.3“In the event of inclement weather as defined in this Part, the mark by time shall be extended by a duration equal to the duration of the inclement weather. The owner or operator shall notify the excavator or demolisher before the expiration of the mark by time of the need for such extension.”o Written documentation is required to satisfy

40:1749.14.C.3.

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• CITATIONS AND SHOW CAUSE LETTERSo CITATIONS WILL INCLUDE A COPY OF THE INSPECTION REPORT WILL ALWAYS REQUIRE TRAINING MAY INCLUDE A CIVIL PENALTY

o SHOW CAUSE LETTER WILL REFER TO A “REFERENCE NUMBER” WHICH IS

THE COMPLAINT NUMBER WILL ALWAYS REQUIRE TRAINING MAY INCLUDE A CIVIL PENALTY

• UTILIZING DUAL METHODS OF ENFORCEMENT WITH CLEARLY DEFINED PARAMETERS FOR EACH WILL ALLOW FOR MORE ENFORCEMENT WITHOUT MORE PERSONNEL

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CIVIL PENALTIES

• No formal matrix• Factors to be considered:

o History of previous violations Increase penalties for repeat offenders

o Nature and gravity of the violationo Degree of culpability, recalcitrance, defiance or indifference to

regulations or orderso Monetary benefits derived through noncomplianceo Degree of risk to human health or propertyo Was the violation reported or was there an attempt to concealo Did the violator attempt to mitigate the damageso What cost is there to the office to issue the penalty

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SATISFYING QUESTIONS 5.C & 5.F

• “5.C - Does the enforcement organization investigate all pipeline excavation damages it learns about (in the field or in the office) or use written procedures to determine when an investigation is warranted?”

• “5.F - When made aware of excavation damage to a pipeline, does the enforcement organization take enforcement action against the violator of the State’s excavation damage prevention requirements in every case?”o Utilizing both onsite and show cause letters should

satisfy these questions.

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INSPECTION FORM

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CITATION EXAMPLE

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XYZ GAS, INC. Page 2 The Enforcement section of Pipeline Safety has suggested that XYZ GAS, INC. be ordered to show cause, under the authority of La. R.S. 30:544 and LAC 43:XI, Chapter 5, why they should not be assessed a civil penalty in connection with the above cited probable violations up to $10,000.00 per day per violation until compliance is achieved. Under the above cited safety laws and regulations this office has the authority to compromise such matters, and, in the spirit of compromise, it issuggested that a civil penalty in the magnitude of $250.00, without assessment of cost, would be appropriate. If this meets with your approval, please submit your payment in the amount of $250.00 to the Office of Conservation, Pipeline Safety Division within 14 days after receipt of this citation, otherwise, a public hearing may be held pursuant to this citation. Pursuant to Section 507 B of this regulation, if you dispute the determination made herein, within seven (7) days from receipt of this citation, XYZ GAS, INC. may request an informal conference with the Commissioner and/or Pipeline Safety staff at no charge to the XYZ GAS, INC. Within twenty (20) days of receipt of this citation XYZ GAS, INC. may request a public hearing in accordance with LS-R.S. 30:6(G) and 8. Such a hearing request must be accompanied by a check or money order in the non-refundable amount of $755.00 as provided by the latest revision of Statewide Order No. 29-R (LAC 43:XIX.Chapter 7) or the request for a hearing will not be considered. If a public hearing is requested, a request for an informal conference will be denied. If you have any questions or comments concerning this matter, please contact Rebekah Clarke at 225/342-9666.

Yours truly, ____________________________________ STEVEN GIAMBRONE, DIRECTOR

OFFICE OF CONSERVATION RPI/SMG:RLC cc: File

SHOW CAUSE EXAMPLE

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SATISFYING QUESTION 3.C.1

• “3.c.1 – Does the enforcement organization make information about enforcement actions publicly available?”o Placing statistical information concerning

complaints, citations and show cause letters on the DNR website should satisfy this question.

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AUDIT CHECKLIST

• 3.B.6 (20 POINTS – Partial Credit) • 3.B.7 (20 POINTS – No Credit) • 3.C.1 (10 POINTS – No Credit) • 4.A (20 POINTS – Partial Credit) • 4.D (6 POINTS – Partial Credit) • 5.C (20 POINTS – Partial Credit) • 5.F (10 POINTS - Partial Credit) • 5.G (20 POINTS – Partial Credit)

o Demonstrating fair and consistent enforcement• 7.B (6 POINTS – No Credit)

o Maintaining information concerning impact of exemptions• 7.D (6 POINTS – No Credit)

o Utilizing information concerning exemptions

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OTHER METHODS OF “ENFORCEMENT”

• Should the Contractor Licensing Board be notified when an excavator is digging without a locate?

• This “enforcement tool” was used in California and increased complianceo The utility operator made the complaint directly to

the licensing boardo There was no meaningful enforcement in California

at the time

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Questions or Comments?

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Thank You!

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