Montana Safe Digging Law

1. Montana Safe Digging Law 2014 Joint Engineers Conference Thu - Nov 06 - 10:00am-11:30am www.montana811.org

2. 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 www.montana811.org

3. Purpose Of The Law • Safety • Public • Excavators • Utility Workers • Protection of Buried Assets • Compliance With Federal Requirements www.montana811.org

4. 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 www.montana811.org

5. Why Do We Need A Law Change • Damaged buried assets • Reported • Not reported www.montana811.org

6. 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 www.montana811.org

7. 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 www.montana811.org

8. 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. www.montana811.org

9. 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: • The criteria for determining the adequacy of state excavation damage prevention law enforcement programs; • The administrative procedures available to a state for contesting a notice of inadequacy; • The Federal requirements for excavators that PHMSA would be enforcing in a state that PHMSA has determined to have an inadequate enforcement program; • The adjudication process that PHMSA would use if PHMSA cited an excavator for failure to comply with the Federal requirements for excavators, and; • The adequacy of PHMSA’s existing damage prevention requirements for pipeline operators. www.montana811.org

10. 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 www.montana811.org

11. 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 www.montana811.org

12. 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? www.montana811.org

13. 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? www.montana811.org

14. 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 www.montana811.org

15. 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. www.montana811.org

16. Why Do We Need A Law Change Montana - No Enforcement Authority www.montana811.org

17. Why Do We Need A Law Change www.montana811.org

18. 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 www.montana811.org

19. Two Previous Attempts • 1st Attempt • Initiated through the Montana Utilities Coordinating Council. • Common goal • Improve safety • Make the law compliant • Make it fair www.montana811.org

20. 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 www.montana811.org

21. Two Previous Attempts • 1st Attempt • Initiated through the Montana Utilities Coordinating Council. • Died in Committee www.montana811.org

22. 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 www.montana811.org

23. 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 www.montana811.org

24. 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 www.montana811.org

25. 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 www.montana811.org

26. Going Forward • Timing • Start communications now • Begin work on legislation April-May 2015 for 2017 legislature www.montana811.org

27. 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 www.montana811.org

28. Going Forward • Questions www.montana811.org

29. www.montana811.org