Protecting Pipelines from Excavation Damage

By Daniel Shea and Kristy Hartman | Vol . 25, No. 20 / May 2017

NCSL News

Did you know?

  • There are more than 2.6 million miles of pipelines in the United States.

  • Excavation damage has resulted in at least 40 fatalities, 166 injuries requiring hospitalization, and more than $322 million in property damage since 2005.

  • Excavation damage prevention laws are commonly known as “one-call laws” or “811 laws” due to the importance of one-call centers that can be accessed by dialing 811.

There are enough pipelines crisscrossing the United States to wrap around the Earth 100 times. Most of these pipelines are buried underground, delivering natural gas, oil and other petroleum products necessary for electricity generation, transportation, heating and cooling.

Although this underground infrastructure is protected from severe storms and other surface-level damage, the abundance of pipelines means that, without proper planning, any construction project that breaks ground risks damaging these facilities. An incident can result in damage to individuals, property and the local economy.

Excavation is among the primary causes of pipeline damage, according to the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA). There were 875 major pipeline incidents caused by excavation between 2005 and 2016, resulting in dozens of fatalities and millions of dollars in property damage. And while the number of major incidents has declined over the past decade, gas utilities still experienced 85,896 leaks due to excavation—most resulting in minor damage—in 2016 alone.

State policymakers and the federal government have taken steps to enhance excavation damage prevention programs and increase enforcement to protect this unseen infrastructure. Each state has adopted “one-call laws,” which require operators of underground infrastructure—including pipelines, telecom wires and sewer lines—to identify and mark buried infrastructure prior to the start of an excavation project.

State Action

Many states have updated their one-call laws in recent years in order to bolster their excavation damage prevention programs. The primary focus of these laws is to outline a clear procedure of communication between excavators and operators of underground infrastructure. Usually this revolves around an 811 call system, which facilitates communication and helps orchestrate the marking of underground infrastructure. These laws establish timeframes and standards of practice, along with enforcement authority on the part of the state.

In 2014, for example, the North Carolina General Assembly passed the Underground Utility Safety and Damage Prevention Act, which changed the state’s approach to preventing excavation damage. The law strengthens the state’s enforcement, communication requirements and standards for digging, while also meeting the requirements outlined by PHMSA. At least five other states—Michigan, Mississippi, Ohio, Oklahoma and Tennessee—have also made changes to their laws in recent years and in Montana, the Legislature passed House Bill 365 in March 2017, which updates the state excavation damage prevention laws.

State one-call laws vary, but they share several basic elements including communication, standardization and enforcement.

For example, every state requires that an excavator give prior notice of a project to all operators within a certain timeframe. In 37 states and the District of Columbia, excavators must give notice at least two days prior, while 12 states require at least three days and Hawaii requires four.

After notification, operators in all states are required to mark underground facilities within a set timeframe and prior to the excavation’s start date. Thirty-four states specify that facilities must be marked according to the American Public Works Association Uniform Color Code.

State statutes and administrative codes differ when it comes to “positive response.” In practice, positive response occurs when an operator communicates with the excavator prior to excavation, to assure that underground infrastructure in the excavation zone has been located and marked. Thirty-one states and the District of Columbia require an explicit response from operators, either through markings or through a message indicating that there are no facilities to mark. Montana will join this list, pending the governor’s signature of House Bill 365.

The potential for miscommunication increases without some form of positive response, as an excavator could assume that an unmarked site is clear of underground infrastructure, when it could simply mean the operator has not yet marked the area.

Enforcement programs also vary among the states, but most states assess fines on an escalating scale for successive violations. Some states assess higher civil penalties if personal injury, death or property damage occurs because of a violation. Kentucky and Louisiana have established fines of $250 for the first offense, while additional offenses can cause fines to increase. Alternatively, Alaska has set maximum fines of $1,000 for each violation. Several states have established maximum fines that are not to exceed $10,000, while others have set maximums between $10,000 and $25,000.

Forty states have granted authority to enforce the law to either the state public utilities commission or the attorney general. In addition, four states have established bodies—such as the Maryland Underground Facilities Damage Prevention Authority and the South Dakota Statewide One-Call Notification Board—specifically responsible for enforcing one-call laws. Georgia, Indiana and Virginia have established similar boards that serve in an advisory capacity and Montana’s 2017 bill would create an underground facility protection advisory council. This type of enforcement authority offers a limited scope of responsibilities, which some states have found useful because the sole focus is on enforcing a law that other agencies may not consider a top enforcement priority. Three states—Alaska, Kentucky and West Virginia—do not address who is responsible for enforcing the law.

Federal Action

Given the variance in state law—and the varying degree to which different states enforce the law— Congress granted PHMSA limited authority to bring enforcement action against violators through the Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006. The PIPES Act has been reauthorized several times since then, most recently in 2016. Based on this congressional mandate, PHMSA undertook a review of all state programs to ensure that state one-call laws are working effectively to reduce excavation damage and determine if states are adequately enforcing their laws.

In addition, PHMSA was given authority to conduct its own enforcement against violators in states deemed to have insufficient excavation damage prevention enforcement programs. This allows the agency to enforce federal standards within these states, including federal civil penalties which range from $205,000 per day for a violation, up to a maximum of more than $2 million for a series of related violations. PHMSA issued a final rule in July 2015, which established the criteria for evaluating state programs, and began notifying states in late 2016.

As of April 2017, PHMSA has finalized assessments for 34 states, of which 13 were determined to have inadequate programs. The remaining states have either appealed or have the option of appealing PHMSA’s assessment. PHMSA has notified states with inadequate programs of its right to enforce damage prevention laws in the absence of state efforts, in addition to the possible loss of grant funding in support of pipeline safety initiatives if the state fails to make adequate changes within five years.