Expect Federal Funding Cuts, New Regs In 2011

New Congress Will Impact Underground Infrastructure
By Stephen Barlas, Washington Editor | February 2011, Vol. 66 No. 2

Not only is the underground community hoping for changes to programs established by the 2006 PIPES Act, it is tapping its toes nervously waiting for some of the programs initiated by that law to actually be implemented by the PHMSA. For example, the PHMSA has been creeping along with implementation of a 2006 PIPES Act requirement mandating that it develop criteria for taking action against states whose damage prevention programs are subpar. The agency issued a December 2009 advance notice of proposed rulemaking which establishes criteria states must meet in their damage prevention programs. Failure to do so would allow the PHMSA to take enforcement action against non-compliant states and against excavators, too. A proposed rule is expected in the next six months.

Richard W. Wanta, executive director Wisconsin Underground Contractors Association, thinks a final rule -- which could be a year or more away -- poses real dangers for underground companies because it would single them out and not require states to lasso other players in the underground damage rodeo, such as utility owners, design engineers, locating firms and municipalities. "Facility owners, locators and one-call offices will love the rule because there are no ramifications for them," he says.

Moreover, he believes any enforcement should be done on the state level, in his case by the Wisconsin Public Service Commission, not PHMSA, whose closest regional office is in Kansas City. "We don't want enforcement from a federal agency located in another state," he explains.

Noise reduction
While that PHMSA rulemaking is important, the OSHA decision, announced late last year, to "reinterpret" its noise standard was considered doubly so. The OSHA had proposed to reinterpret its noise standard, which has been in place since the early 1970s, so that engineering controls would be considered economically feasible and therefore required in many instances. The current OSHA stance has been that companies can reduce noise levels below applicable thresholds via hearing conservation programs. That would mean supplying employees with ear muffs or earphones.

Complaints from all sorts of businesses flooded the agency after the OSHA announced its proposed reinterpretation. Ethan Wyman of NUCA felt it would be hard for his members to determine when engineering controls are "economically feasible," a term he found ambiguous. Moreover, he adds, if OSHA wants to reinterpret the noise standard, it should go through a formal rulemaking.