Tennessee Advisory Commission on Intergovernmental Relations September 2010

Review federal standards and other state initiatives Is legislative action needed? If yes, what entity or entities would be best suited to undertake further responsibilities. TACIR 2

U.S. Dept. of Transportations Pipeline and Hazardous Materials Safety Administration (PHMSA) Tennessee Regulatory Authority (TRA) Gas Pipeline Safety Division TACIR3

Requires anyone engaging in demolition, excavation, tunneling or construction near gas or hazardous liquid pipeline to use the states one-call system. Authorizes PHMSA to take enforcement action against excavators for violations if the Secretary of Transportation determines that a states own enforcement is inadequate. TACIR4

Advanced Notice of Proposed Rulemaking- October 29, 2009 Notice of Propose Rulemaking- Expected Fall 2010 Promulgation of New Rule- Expected Fall 2011 TACIR 5

Federal officials have suggested that states strengthen underground utility damage protection laws affecting other utilities because of impact on gas and hazardous liquid. TACIR 6

Authorizes One-Call System Requires Excavators to Use the System. TACIR 7

Factors to be considered in determining adequacy of states programs: Does state law require gas and hazardous liquid pipeline operations to be members of and participate in the states one-call system? Has the state avoided giving exemptions ? Are excavators required to report all pipeline damage incidents to the affected pipeline operators? Has the state designated a state agency with responsibility for administering the damage prevention laws? TACIR 8

a threshold criterion for determining the adequacy of a states damage prevention enforcement program will be whether the state has established and exercised its authority to assess civil penalties for violation of its one-call law. TACIR 9

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In 2008, TNOCS received reports of 1,059 damage incidents; 93% were to natural gas facilities In 2009, TNOCS received reports of 832 damage incidents; 85% were to natural gas facilities BUT reporting is voluntary, so likely underreported. Reduction in incidents likely affected by economic downturn. TACIR 11

Yes. Georgia-From 2006 to 2009, reported damages dropped from 7,919 to 4,763 (40%) Virginia-From 1996 through 2009, gas facility damages decreased from 4.49 damages per 1000 tickets to 1.67 per 1000 tickets in TACIR 12

Does the regulation benefit the public rather than the industry regulated? Is the regulated industry required to report the impact of its rules and decisions on the public? Has the entity encouraged public participation in its rules and decision making, as opposed to those it regulates? TACIR 13

How are complaints handled? To what extent would the absence of regulation endanger the public health, safety or welfare? To what extent does increased regulation increase the cost of goods and services to the public? TACIR 14

1. Enhanced Communication between Operators and Excavators 2. Fostering Support and Partnership of all Stakeholders 3. Operators Use of Performance Measures for Locators 4. Partnership in Employee Training 5. Partnership in Public Education 6. Enforcement Agencies Role to Help Resolve Issues 7. Fair and Consistent Enforcement of the Law 8. Use of Technology to Improve the Locating Process 9. Data Analysis to Continually Improve Program Effectiveness TACIR 15

More effective damage incident reporting Civil penalties in place of criminal ones State agency to oversee program and enforce penalties One-Call Governance Stakeholder Advisory Committee Funding Unknown and abandoned lines Rural Utilities TACIR 16

Rural Utilities Planning and design Dispute resolution Improving Communication, Coordination, and Compliance TACIR 17

More effective damage incident reporting ANPRM: Are annual statistics on the number of excavation damage incidents, investigations, enforcement actions, penalties proposed, and penalties collected made available to PHMSA and the public? --Tennessee One-Call presently collects some data and reports gas line damages to PHMSA. However, reporting is voluntary, does not apply to other kinds of utilities. Data is not readily available to the public. TACIR 18

Civil Penalties in Place of Criminal Ones ANPRM: a threshold criterion for determining the adequacy of a states damage prevention enforcement program will be whether the state has established and exercised its authority to assess civil penalties for violation of its one-call law. Tennessee lacks a state authority designated to establish policy and implement a process for civil penalties. Penalties are criminal, not civil. TACIR 19

State agency to oversee program and enforce penalties Tennessee One-Call is a private, non-profit corporation authorized by statute, but with no state oversight Some other states require reporting or even select the vendor through competitive process TACIR 20

One-Call System Governance TNOCS is governed by its charter and a board of directors representing 7 major provider categories. Others are permitted. Issues of stakeholder representation: Membership Composition of Board of Directors TACIR 21

Stakeholder Advisory Committee Proposed by 2009 legislation, and used successfully in some other states Who should appoint the members? Who should be represented? TACIR 22

FundingWho should pay for increased enforcement? Is it a matter of general public safety? What is a reasonable membership fee, especially if membership is made mandatory? How should proceeds from penalties be used? TACIR 23

Unknown and Abandoned Lines What should be the policy for underground lines that have been there for many years and may not be known? What should be the policy for newly-abandoned lines? TACIR 24

Rural Utilities 2009 proposed legislation would have placed many more farmers and rural landowners under One-Call requirements. TCA provides for DIG certificates, allowing lines to be marked once permanently, but apparently not used much. TACIR 25

Training PIPES Element 4: Participation by operators, excavators, and other stakeholders in the development and implementation of effective employee training programs to ensure that operators, the one-call center, the enforcing agency, and the excavators have partnered to design and implement training for the employees of the operators, excavators, and locators. TNOCS provides voluntary training programs. TRA sees a need for more involvement of stakeholders in the development and delivery of the training. More training for locators needed. TACIR 26

Planning and Design Testimony before TACIR by several groups indicates need for improving front-end processes. Virginia, New York, Oregon, and Montana have included specific statutory references to address access to the one-call service by planners and designers TACIR 27

Dispute Resolution PIPES Element 6: A process for resolving disputes that defines the State authoritys role as a partner and facilitator to resolve issues. Some states have processes for mediating disputes and for considering mitigating circumstances. TACIR 28

Improving Communication, Coordination, and Compliance Among stakeholders With the general public TACIR 29

Convene stakeholders to consider --ways to improve what we know about underground utility damage and its prevention. --ways to improve coordination and cooperation --the appropriate role of state government in enforcement of laws TACIR 30

Tennessee Advisory Commission on Intergovernmental Relations September 2010