Tougher Requirements For Excavators Likely In 2013

Annual Regulatory Outlook
By Stephen Barlas, Washington Editor | February 2013, Vol. 68 No. 2

The most significant federal action this year affecting underground construction companies is likely to be the final rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA) on excavation damage. The rule will have two parts. One will define minimum excavation damage program standards for states.

If a state fails to adopt those standards, then PHMSA will be able to seek fines from excavators who ignore a new federal standard on excavation damage, which the final rule establishes. The minimum state and new federal standard will be very similar.

The new rule stems from a requirement in The Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006. The PHMSA has been conducting a rulemaking ever since. In December, the agency received approval from its two advisory committees, including the Technical Pipeline Safety Standards Committee, to issue the final rule. Damon Hill, a PHMSA spokesman, says he is not sure when the final rule will be published. But sources say that won't happen before this summer.

The advisory committee voted on two separate "amendments" to the proposed rule the PHMSA issued last April. In both cases, the committees suggested that the agency toughen requirements on excavators. For example, the proposed rule gave excavators discretion on whether to request emergency response personnel be sent to the site of an accidental puncturing of a pipeline. The advisory committees told the PHMSA to eliminate that "discretion." The committees also told the PHMSA to add a "stop work" provision requiring excavators to stop work if a pipeline is damaged until the operator of the pipeline has had an opportunity to assess the damage. The committees told the PHMSA it should also require the excavator to take reasonable measures to protect those in immediate danger, the general public, property, and the environment until the facility owner/operator or emergency responders have arrived and completed their assessment of the situation.

Sewer/water finance
There is no vapor intrusion threat from leaking underground drinking water and wastewater pipes, of course. But those pipes in many areas are leaking badly, and need to be replaced, which is becoming harder and harder for cities and towns as Congress cuts appropriations for the Drinking Water and Clean Water State Revolving Funds (SRFs). The Water Infrastructure Finance and Innovation Act (WIFIA) would help fill that gap. That bill was introduced last December by Sen. Jeff Merkley (D-OR) and will be reintroduced early in the new Congress.