Montana Safe Digging Law 2014 Joint Engineers Conference Thu - Nov :00am-11:30am

Montana Code Annotated 2014 Table of Contents TITLE 69. PUBLIC UTILITIES AND CARRIERS CHAPTER 4. UTILITY LINES AND FACILITIES Part 5. Excavations Near Underground Facilities

Purpose Of The Law Safety – Public – Excavators – Utility Workers Protection of Buried Assets Compliance With Federal Requirements

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

Why Do We Need A Law Change Damaged buried assets – Reported – Not reported

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

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

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.

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, (PHMSA ) –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.

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 comm/DamagePrevention.htm ) Some states do not adequately enforce their damage prevention laws Effective enforcement reduces excavation damage rates

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

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?

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?

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 CFR U.S.C. § 60114

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. § – Criminal penalties may be imposed as specified in 49 U.S.C. §

Why Do We Need A Law Change Montana - No Enforcement Authority

Why Do We Need A Law Change

Two Previous Attempts 1 st 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

Two Previous Attempts 1 st Attempt – Initiated through the Montana Utilities Coordinating Council. Common goal – Improve safety – Make the law compliant – Make it fair

Two Previous Attempts 1 st 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

Two Previous Attempts 1 st Attempt – Initiated through the Montana Utilities Coordinating Council. Died in Committee

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

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

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

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

Going Forward Timing – Start communications now – Begin work on legislation April-May 2015 for 2017 legislature

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

Going Forward Questions