September 2015 Vol. 70 No. 9
Washington Watch
PHMSA Sets Standards for State Excavation Policies
House members of both parties dragged the latest top Pipeline and Hazardous Materials Safety Administration (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 PHMSA, was calm and vague at a hearing on July 17 in the House Energy & 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 that 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. This time it was Cummings. Butters left PHMSA on June 8 to take a senior position at the Federal Aviation Administration. The Obama administration has nominated Maria Therese Dominquez to be administrator. No Senate confirmation hearings are scheduled. Cynthia Quarterman was the last administrator, and she left the agency in
October 2014.
The musical chairs at the top of PHMSA probably has contributed to the fact that 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 now has authority to take civil action against excavators in those states. All states have damage prevention programs, many with one-call responsibilities accruing to excavators, but those programs are all over the map. No 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 checked the states every few years over the past five years and rated them based on the nine requirements. The latest results from 2014 are posted on the agency’s website.
About one-half to two-thirds of all states are rated as having met all nine requirements. Almost all the remaining states have met at least seven of the nine. There are no states that look like horrible laggards. 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 says it will judge state adequacy based on such things 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 (e.g., mandatory reporting, complaint-driven reporting) for learning about excavation damage to underground facilities.
Scott Berry, director, Utility Infrastructure Division, Environment and Trade, Associated General Contractors, says his group is glad the final rule has finally been published. He believes that even states that are rated as meeting all nine requirements may be encouraged by the final rule to upgrade some of their programs. PHMSA will be surveying 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. Of course, given PHMSA’S shortage of staff resources, it is questionable how thorough these surveys will be.
There were a number of issues which cropped up during the 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 that 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. Losses could be significant when an excavator is required to shut down a project due to the pipeline being not marked or marked inaccurately.
In the final rule, the PHMSA answered: “It would be an inappropriate use of federal regulations to entitle any specific group to downtime compensation.”
Groups Take Issue With Aspects Of Excess Flow Valve Proposal
The gas distribution industry has no problems, apparently, with the objectives of a PHMSA proposed rule on excess flow valves. But they have decided on problems with the way some of those 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. She noted concerns have been raised about elements of the proposed rule 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 – and critical.
“APGA supports the EFV installation portion of the rule proposed by PHMSA,” states Erickson. “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 also has not addressed how an operator will handle situations where there are 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 percent of the distribution operators PHMSA regulates are under state PUC jurisdiction for rates. Only a handful of the APGA’s 729 members have PUCs approve their rates.
While installing an EFV when installing a new service line is relatively inexpensive ($20 or less) retrofitting an EFV on an existing line will be expensive ($500 to more than $1,000). It could easily exceed the customer’s entire annual gas bill, according to Erickson. If a significant number of customers request retrofitting an EFV on their service lines in the initial notification, it could divert a significant portion of the utility’s construction crews away from more important main replacement projects.
The proposed rule also says that 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 is worried 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 that these valves be accessible to first responders other than utility personnel “is a terrible idea,” according to Erickson.
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