Tougher Requirements For Excavators Likely In 2013

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.

The bill would create a new federal water infrastructure funding source to supplement the SRFs. A water infrastructure fund (WIF) has the advantage, because of the way the fund would be structured, of having a minimum claim on new federal spending which is, of course, an anathema to Congress in these days of an emphasis on reducing federal spending.

A Water Innovation Fund would borrow money from the Treasury at low Treasury Department interest rates and then lend that money to cities and counties for important regional water infrastructure projects likely to cost more than $20 million. Those interest rates could be a tad higher than the interest rates offered by state SRFs; but SRF loans are generally available to small and medium-sized projects only. The water fund would be based on an existing Transportation Infrastructure Finance and Innovation Act (commonly called TIFIA). The beauty of these infrastructure funds is that Congress only has to appropriate enough money to cover the “subsidy” cost of providing the low-interest Treasury loan.

Rep. Bob Gibbs (R-OH), chairman of the House Water Resources and Transportation Subcommittee, held two hearings last winter on a draft bill he prepared but he never introduced a formal version. That wasn’t a good sign. Tommy Holmes, legislative director for the American Water Works Association, says he is more optimistic a WIFIA bill will move through this new Congress. That is because Sen. Barbara Boxer (D-CA), chairman of the Senate Environment and Public Works Committee, has committed to including the Merkley bill as an amendment in a broader bill approving new spending on dams, levees and ports. That larger bill is called the Water Resources Development Act (WRDA). The bill authorizes critical water infrastructure projects and programs of the U.S. Army Corps of Engineers, including those related to levees and flood safety, innovative project financing, inland waterways, dam safety, ports and ecosystem restoration. But Holmes acknowledges any WIFIA amendment will have a hard time staying in a final WRDA bill since the House is unlikely to approve any new federal spending programs.

Congress did, however, establish a new funding source in 2012 for construction of a new national, interoperable public safety broadband system, thanks to the Middle Class Tax Relief and Job Creation Act of 2012. It created a new private/public authority called FirstNet. It will supervise the creation of a nationwide public safety broadband network (NPSBN) based on a single, national network architecture. Congress provided $135 million for state planning grants and $2 billion for eventual deployment and operation of the network. An additional $5 billion is expected to be available based on Federal Communications Commission sale of current TV spectrum. The FirstNet board held its first meeting last fall. It is now in the process of creating the network architecture. The $135 million in planning grants to states will probably be dispersed this year. But actual construction grants for the laying of fiber may not be forthcoming until at least 2015.

EPA leadership change
There is nothing as major as the PHMSA rule on the horizon at the Environmental Protection Agency. Lisa Jackson, the EPA administrator in Obama’s first term, is gone. Jackson got good marks from environmentalists. But in reality, her tenure was marked by regulatory action in a very narrow range focused on air emissions, and even there, mostly aimed at electric utilities who use coal. Don’t look for precipitous action from her successor in “underground” areas such as Superfund, waste disposal on land or in water or groundwater contamination. The EPA has a study ongoing into potential groundwater contamination from shale gas extraction. But any final recommendations are years away, and there is no telling whether any report will support digging restrictions anyway.

There is one exception to the above analysis, and it is a relatively minor one. The EPA is nearing release of two separate, but related, guidance documents on how state and federal regulatory programs should evaluate underground chemical leaks which, via “vapor intrusion,” foul the indoor air of residential and industrial buildings. There will be two separate guidance documents, apparently. One will focus on leaks from underground storage tanks (UST) containing petroleum. The other concentrates on leaks into soils from such things as pipeline petroleum spills and above-ground storage tanks. The UST guidance doesn’t concern most affected parties because it accounts for the fact that those tanks are generally buried deep below the surface and that any leaks are attenuated by the soil. Not so for above-ground and pipeline leaks.

The American Petroleum Institute doesn’t think pipeline leaks are any more dangerous, in terms of indoor air contamination, than leaks from USTs. The API thinks the EPA should simply produce one guidance document. Bruce Bauman, research program coordinator, soil/groundwater, at the American Petroleum Institute (API), says, “Aerobic biodegradation of petroleum compounds is likely to be significant at many petroleum release sites where the source is something other than a leaking UST, for example, pipelines, above-ground storage tanks, refinery operations. It would be inappropriate to utilize guidance that doesn’t recognize this important attenuation mechanism for these sites.”

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