www.montana811.org montana safe digging law 2014 joint engineers conference thu - nov 06 -...
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Montana Safe Digging Law
2014 Joint Engineers ConferenceThu - Nov 06 - 10:00am-11:30am
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Montana Code Annotated 2014
Table of ContentsTITLE 69. PUBLIC UTILITIES AND CARRIERS CHAPTER 4. UTILITY LINES AND FACILITIES
Part 5. Excavations Near Underground Facilities
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Purpose Of The Law
• Safety– Public– Excavators– Utility Workers
• Protection of Buried Assets• Compliance With Federal Requirements
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Why Do We Need A Law Change
• Safety– Montana still has a significant rate of damaged
utilities due to excavation• Believed to be trending down• No required reporting
– Excavators and utility workers get hurt every year in Montana due to excavation damage
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Why Do We Need A Law Change
• Damaged buried assets– Reported– Not reported
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Why Do We Need A Law Change
• Compliance With Federal Requirements• April 2, 2012, the Pipeline and Hazardous Materials
Safety Administration (PHMSA) published a Notice of Proposed Rule Making (NPRM) seeking to revise the Pipeline Safety Regulations to:
– establish criteria and procedures for determining the adequacy of pipeline damage prevention law enforcement programs
– establish an administrative process for making adequacy determinations
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Why Do We Need A Law Change
• Compliance With Federal Requirements• April 2, 2012, the Pipeline and Hazardous Materials
Safety Administration (PHMSA) published a Notice of Proposed Rule Making (NPRM) seeking to revise the Pipeline Safety Regulations to:
– establish the Federal requirements PHMSA will enforce in states with inadequate excavation damage prevention law enforcement programs
– Establish the adjudication process for administrative enforcement proceedings against excavators where Federal authority is exercised
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Why Do We Need A Law Change
• Compliance With Federal Requirements• On December 29, 2006, PHMSA’s pipeline safety
program was reauthorized by enactment of the Pipeline Inspection, Protection, Enforcement and Safety Act of 2006 (that act is also known as the “PIPES Act”).
– the PIPES Act provided PHMSA with new authority to conduct administrative civil enforcement proceedings against excavators who damage pipelines in states that have inadequate excavation damage prevention enforcement programs.
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Why Do We Need A Law Change
• Compliance With Federal Requirements• PHMSA published an Advance Notice of Proposed Rulemaking – or
ANPRM – on this subject on October 29, 2009. (PHMSA-2009-0192)– The ANPRM sought comments from stakeholders on the following
subjects:
1. The criteria for determining the adequacy of state excavation damage prevention law enforcement programs;
2. The administrative procedures available to a state for contesting a notice of inadequacy;
3. The Federal requirements for excavators that PHMSA would be enforcing in a state that PHMSA has determined to have an inadequate enforcement program;
4. The adjudication process that PHMSA would use if PHMSA cited an excavator for failure to comply with the Federal requirements for excavators, and;
5. The adequacy of PHMSA’s existing damage prevention requirements for pipeline operators.
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Why Do We Need A Law Change
• Compliance With Federal Requirements– Intent of the NPRM
• Every state has an excavation damage prevention law, but no two laws are identical (see http://primis.phmsa.dot.gov/
comm/DamagePrevention.htm)• Some states do not adequately enforce their damage
prevention laws• Effective enforcement reduces excavation damage rates
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Why Do We Need A Law Change
• Compliance With Federal Requirements– Intent of the NPRM
• The proposed rule is intended to accomplish the following:
– Reduce excavation damage to pipelines– Encourage states to adopt effective, balanced damage
prevention law enforcement programs– Provide “backstop” Federal enforcement authority in states
that lack adequate enforcement programs
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Why Do We Need A Law Change
• Compliance With Federal Requirements– Criteria for Adequate Enforcement
• Does the state have enforcement authority with civil penalties?• Has the state designated an agency or other body as the
responsible enforcement authority?• Is the state using its enforcement authority and making
information publicly available that demonstrates the effectiveness of enforcement?
• Does the state have a reliable mechanism for learning about excavation damage?
• Does the state use damage investigation practices that are adequate to determine the at-fault party?
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Why Do We Need A Law Change
• Compliance With Federal Requirements– Criteria for Adequate Enforcement
• Does the state’s damage prevention law require:– Excavators must call the one-call before excavating;– Excavators may not excavate in disregard of the marked location of
pipelines;– An excavator who causes damage to a pipeline:
» Must report the damage to the owner/operator of the pipeline, and;
» Must call 911 or another emergency telephone number if the damage results in a release of gas or hazardous liquids
• Does the state limit exemptions for excavators from its excavation damage prevention law?
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Why Do We Need A Law Change
• Compliance With Federal Requirements– PHMSA may enforce existing damage prevention
requirements applicable to pipeline operators if a pipeline operator fails to respond to a locate request or fails to accurately locate and mark its pipeline.
• 49 CFR 192.614• 49 CFR 195.442• 49 U.S.C. § 60114
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Why Do We Need A Law Change
• Compliance With Federal Requirements– PHMSA may assess civil penalties for violations of
the excavation damage prevention requirements proposed in the NPRM
• Only in states with inadequate enforcement programs
– The maximum administrative civil penalties that may be imposed are specified in 49 U.S.C. § 60122.
– Criminal penalties may be imposed as specified in 49 U.S.C. § 60123.
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Why Do We Need A Law Change
Montana - No Enforcement Authority
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Why Do We Need A Law Change
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Two Previous Attempts
• 1st Attempt– Initiated through the Montana Utilities
Coordinating Council (MUCC). • Large stakeholder group
– Cities and Towns– Contractors– Liquid and gas operators– Telecommunications– Electric utilities– Public Service Commission
• Many meetings and lots of compromise
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Two Previous Attempts
• 1st Attempt– Initiated through the Montana Utilities
Coordinating Council. • Common goal
– Improve safety– Make the law compliant– Make it fair
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Two Previous Attempts
• 1st Attempt– Initiated through the Montana Utilities
Coordinating Council. • Mistakes Made
– Missed stakeholders– Looking at the PSC for enforcement– Requiring all damages be reported for enforcement– Requiring all damages be reported for tracking
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Two Previous Attempts
• 1st Attempt– Initiated through the Montana Utilities
Coordinating Council. • Died in Committee
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Two Previous Attempts
• 2nd Attempt– Written by NorthWestern Energy
• Some help and support from MUCC– Included many of the changes identified in the first attempt
• Changed enforcement to a newly appointed Underground Pipeline Protection Board – quasi-judicial
• Changed the locate request maturity time from 2 full business days to 48 business hours.
• Design locates would mature in 15 business days
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Two Previous Attempts
• 2nd Attempt– Written by NorthWestern Energy
• When damage occurred from failure to locate within the required time the facility owner would fall under the same enforcement rules as the excavator.
• Positive notification from facility owner
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Two Previous Attempts
• 2nd Attempt– Written by NorthWestern Energy
• Issues– Safety board ruled on damages– Changing requirements for locates from 2 full business days to
48 hours.– The way it was handled– Requiring damage reporting
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Going Forward
• New group assembled with political professionals as well as industry experts
• Use the 811 Web site to keep people informed and gather input.
• Work for full support prior to introducing a bill• Work for a common goal
– Improve safety– Make the law compliant– Make it fair
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Going Forward
• Timing– Start communications now– Begin work on legislation April-May 2015 for 2017
legislature
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Going Forward
• Where do we need help– Bill writer's– Political insight and process knowledge – Finding the best solution to enforcement
• Review other state laws
– Talking to stakeholders– Sitting on committees
• We do have some volunteers from this group
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Going Forward
• Questions
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