Safe Digging! Working Together to Prevent Damage to Underground Utilities

1. Tennessee Advisory Commission on Intergovernmental Relations September 2010 Safe Digging!Working Together to Prevent Damage to Underground Utilities

2. P.C. 470 of 2009 directed TACIR to study effectiveness: • 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

3. Natural Gas & Hazardous Liquid Damage Prevention • U.S. Dept. of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) • Tennessee Regulatory Authority (TRA) Gas Pipeline Safety Division TACIR

4. Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (PIPES Act) • 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 state’s own enforcement is inadequate. TACIR

5. What is the Fed’s timetable? • Advanced Notice of Proposed Rulemaking- October 29, 2009 • Notice of Propose Rulemaking- Expected Fall 2010 • Promulgation of New Rule- Expected Fall 2011 TACIR

6. Are changes needed in Tennessee’s law? • Federal officials have suggested that states strengthen underground utility damage protection laws affecting other utilities because of impact on gas and hazardous liquid. TACIR

7. Tennessee’s Underground Utility Damage Prevention Act (TCA 65-31-101 et seq.) • Authorizes One-Call System • Requires Excavators to Use the System. TACIR

8. Advanced Notice of Proposed RulemakingOctober 29, 2009 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 state’s 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

9. Advanced Notice of Proposed RulemakingOctober 29, 2009 • “a threshold criterion for determining the adequacy of a state’s 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

10. What causes damage? TACIR

11. What do we know about Tennessee’s damage data? • 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

12. In states that have made changes have damages decreased? 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 2009. TACIR

13. Elements of Successful Regulatory Programs • 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

14. Elements of Successful Regulatory Programs (cont.) • 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

15. PIPES Act of 2006-Elements • Enhanced Communication between Operators and Excavators • Fostering Support and Partnership of all Stakeholders • Operator’s Use of Performance Measures for Locators • Partnership in Employee Training • Partnership in Public Education • Enforcement Agencies’ Role to Help Resolve Issues • Fair and Consistent Enforcement of the Law • Use of Technology to Improve the Locating Process • Data Analysis to Continually Improve Program Effectiveness TACIR

16. Issues identified in Tennessee’s Program • 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

17. Issues (cont.) • Rural Utilities • Planning and design • Dispute resolution • Improving Communication, Coordination, and Compliance TACIR

18. Issues (cont.) 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

19. Issues (cont.) Civil Penalties in Place of Criminal Ones ANPRM: “a threshold criterion for determining the adequacy of a state’s 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

20. Issues (cont.) 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

21. Issues (cont.) 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

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

23. Issues (cont.) Funding—Who 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

24. Issues (cont.) 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

25. Issues (cont.) Rural Utilities • 2009 proposed legislation would have placed many more farmers and rural landowners under One-Call requirements. • TCA 65-31-104 provides for DIG certificates, allowing lines to be marked once permanently, but apparently not used much. TACIR

26. Issues (cont.) 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

27. Issues (cont.) 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

28. Issues (cont.) Dispute Resolution PIPES Element 6: “A process for resolving disputes that defines the State authority’s role as a partner and facilitator to resolve issues.” • Some states have processes for mediating disputes and for considering mitigating circumstances. TACIR

29. Issues (cont.) Improving Communication, Coordination, and Compliance • Among stakeholders • With the general public TACIR

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

31. Tennessee Advisory Commission on Intergovernmental Relations September 2010 Safe Digging!Working Together to Prevent Damage to Underground Utilities