Part 1. RAILROAD COMMISSION OF TEXAS
Chapter 14. REGULATIONS FOR LIQUEFIED NATURAL GAS (LNG)
Subchapter A. GENERAL APPLICABILITY AND REQUIREMENTS
The Railroad Commission of Texas adopts the repeal of §14.2001, relating to LNG Advisory Committee, in conjunction with its notice of review and re-adoption of 16 Texas Administrative Code Chapter 14, pursuant to Texas Government Code, §2001.039; the repeal is adopted without changes from the version published in the April 13, 2007, issue of the Texas Register (32 TexReg 2077).
The Commission adopts the repeal of §14.2001 because by the terms of the rule, the LNG advisory committee ceased to exist on August 31, 2006.
The Commission received no comments on the proposed repeal.
The Commission adopts the repeal under Texas Natural Resources Code, §116.012, which authorizes the Commission to adopt rules and standards relating to liquefied natural gas activities to protect the health, welfare, and safety of the general public; and Texas Government Code, Chapter 2110, State Agency Advisory Committees.
Statutory authority: Texas Natural Resources Code, §116.012, and Texas Government Code, Chapter 2110.
Cross-reference to statute: Texas Natural Resources Code, Chapter 116, and Texas Government Code, Chapter 2110.
Issued in Austin, Texas, on May 30, 2007.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 30, 2007.
TRD-200702118
Mary Ross McDonald
Managing Director
Railroad Commission of Texas
Effective date: June 19, 2007
Proposal publication date: April 13, 2007
For further information, please call: (512) 475-1295
The Railroad Commission of Texas adopts new §§18.1 - 18.12, relating to Scope, Applicability, and General Provisions; Definitions; Excavator Notice to Notification Center; Excavator Obligation to Avoid Damage to Underground Pipelines; Operator and Excavator Obligations with Respect to Positive Response; General Marking Requirements; Excavator Marking Requirements; Operator Marking Requirements; Options for Managing an Excavation Site in the Vicinity of an Underground Pipeline; Excavation within Tolerance Zone; Reporting Requirements; and Penalty Guidelines, in new Chapter 18, entitled Underground Pipeline Damage Prevention, with changes to the proposed versions published in the December 22, 2006, issue of the Texas Register (31 TexReg 10228).
The new rules implement the authority of the Commission under Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201 (as amended by House Bill 2161, Acts 2005, 79th Leg., R.S., ch. 267, §§6 and 13, eff. Sept. 1, 2005). As amended, Texas Natural Resources Code, §117.012, provides that the Commission shall adopt rules that include safety standards for and practices applicable to the intrastate transportation of hazardous liquids or carbon dioxide by pipeline and intrastate hazardous liquid or carbon dioxide pipeline facilities, including safety standards related to the prevention of damage to such a facility resulting from the movement of earth by a person in the vicinity of the facility, other than movement by tillage that does not exceed a depth of 16 inches. As amended, Texas Utilities Code, §121.201(a)(1), states that the Commission may by rule prescribe or adopt safety standards for the transportation of gas and for gas pipeline facilities, including safety standards related to the prevention of damage to such a facility resulting from the movement of earth by a person in the vicinity of the facility, other than movement by tillage that does not exceed a depth of 16 inches. Both provisions impose a limitation on the Commission's rulemaking authority by stating that the Commission may not implement rules adopted under the new legislation until September 1, 2007.
In addition, by adopting the new rules in Chapter 18, the Commission is implementing the authority delegated by and under Texas Health and Safety Code, §756.106 (as added by Senate Bill 9, Acts 2005, 79th Leg., R. S., ch. 1337, §19, and editorially renumbered as Health and Safety Code, §756.126). This provision states that the Commission shall adopt and enforce safety standards and best practices, including those described by 49 U.S.C. §6105 et seq ., relating to the prevention of damage by a person to a facility under the jurisdiction of the Commission. This legislation requires the Commission to adopt the safety standards and best practices required by Health and Safety Code, §756.126, not later than June 1, 2007. The new rules in Chapter 18, with some stated exceptions, would apply to all persons engaged in or preparing to engage in the movement of earth in the vicinity of an intrastate underground pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid, or carbon dioxide. However, Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201, specifically authorize the Commission to exempt other entities or occupations if the Commission determines in its rulemaking process that exempting those entities or occupations from the rules is either in the public interest or not likely to cause harm to the safety and welfare of the public. In the proposal preamble, the Commission gave notice that one result of this rulemaking may be the exemption of additional entities and/or activities from the new rules in Chapter 18.
Although there are some specific requirements for both excavators and pipeline operators set forth in the proposed new rules, generally the Commission attempted to avoid provisions that would either duplicate or contradict the mandates of Texas Utilities Code, Chapter 251, the Underground Facility Damage Prevention and Safety Act. The requirements in the new rules are based on the presumption that an excavator will notify a notification center pursuant to, and that a pipeline operator will respond in accordance with, the provisions of Texas Utilities Code, Chapter 251, and the requirements of the notification center. However, compliance with the provisions of Texas Utilities Code, Chapter 251, and the requirements of a notification center does not necessarily constitute compliance with the requirements of this chapter.
The Commission received comments from the following groups or associations, companies, and individuals: AGC of Texas; Air Products; American Petroleum Institute and the Association of Oil Pipe Lines ("API and AOPL"); Atmos Energy Corporation ("Atmos"); CenterPoint Energy Arkla, CenterPoint Energy Entex, and CenterPoint Energy Intrastate Pipelines, Inc. (CEIP) (collectively "CenterPoint"); Common Ground Alliance ("CGA"); CoServ Gas ("CoServ"); Gary W. Craig; Devon Energy Corporation ("Devon"); Equistar Chemicals LP ("Equistar"); Kinder Morgan Texas Pipeline, L.P., Kinder Morgan Tejas Pipeline, L.P., Kinder Morgan Border Pipeline, L.P., and Kinder Morgan North Texas Pipeline, L.P. (collectively "Kinder Morgan"); Marathon Pipe Line ("Marathon"); Occidental Permian Ltd., OXY USA WTP LP, and OXY USA, Inc. (collectively "OXY"); the Danielle Dawn Smalley Foundation ("Smalley Foundation"); SM&P Utility Resources, Inc. ("SM&P"); Texas Department of Transportation ("TxDOT"); Texas Gas Association ("TGA"); Texas Gas Service Company ("TGS"); Texas Oil & Gas Association ("TxOGA"); Texas Pipeline Association ("TPA"); Texas Pipeline Safety Coalition ("the Coalition"); the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration ("PHMSA"); and West Texas Gas, Inc. and WTG Gas Transmission Company (collectively "WTG"). Most comments supported the Commission's efforts to improve pipeline safety, but all sought clarification or made suggestions for changes. The comments are addressed in detail in the following paragraphs.
CGA, on behalf of its Board of Directors and more than 1,400 members, congratulated the Railroad Commission of Texas on its proposed new rules in Chapter 18, Underground Pipeline Damage Prevention. CGA noted that many of the proposed rules are similar to the practices contained in "The Common Ground Alliance Best Practices, Version 3.0." The initial Best Practices have been in existence since the initial Common Ground Study report of 1999. A number of new practices have been added in the intervening years. These Best Practices were developed on a consensus basis by all 15 stakeholder groups of the CGA. CGA noted that a description and examples of each of these practices are included in the Best Practices and can be found on its website at www.commongroundalliance.com.
CGA noted that a large number of its members and sponsors reside in Texas, and was glad to see their home state moving in a direction proposed by these members as a national direction. The CGA is an Association of 15 different stakeholder groups representing all parties that are dedicated to a "Shared Responsibility in Damage Prevention to our Underground Infrastructure." The Commission thanks CGA for its support of the proposed new rules.
AGC of Texas was an active participant in the stakeholder process to develop the rules in this chapter and found the experience positive and most beneficial, and thanked Mary McDaniel and her staff for their willingness to work with AGC of Texas to address its concerns during the stakeholder meetings and the staff's efforts to prepare a rule package that is fair and balanced. The Commission thanks AGC of Texas for its participation in the workshops and for its comments on the proposed rules.
Equistar appreciated the opportunity to review and comment on the proposed rules and greatly supports the Commission's efforts to strengthen rules and enforcement regarding the protection of underground pipelines. Overall, the proposed additions will create a step change improvement in collective efforts to reduce third-party damage. The Commission thanks Equistar for its comments on the proposed rules.
Kinder Morgan appreciated the opportunity to provide comments to the Commission on the proposed new rules. The combined assets of Kinder Morgan consist of almost 6,000 miles of natural gas pipelines. Kinder Morgan is committed to operating safe natural gas pipeline facilities and providing reliable service to the citizens of the State of Texas. Accordingly, Kinder Morgan will be affected by the new rules in Chapter 18. Kinder Morgan also appreciates the efforts of the Commission staff for the time spent ensuring a deliberate open process in which the rules were developed. Overall, Kinder Morgan stated, the rules are a great first step toward improving pipeline safety and meeting the requirements of the recent and past Pipeline Safety Acts and the spirit of the Common Ground Alliance Best Practices. Kinder Morgan stated its agreement with and support of the comments filed by TPA and the Coalition in this proceeding. These organizations have developed a number of recommendations and suggestions that will clarify several provisions of the new rules in addition to addressing concerns relating to the penalty rule. Kinder Morgan urged the Commission to revise the proposed rules in accordance with those comments. Kinder Morgan looks forward to working with the Commission as the implementation of the damage prevention rule occurs. The Commission thanks Kinder Morgan for its participation in the workshops and for its comments on the proposed rules.
Marathon operates approximately 220 miles of pipeline on the Outer Continental Shelf (OCS). Marathon supports the Railroad Commission of Texas in its effort for constant improvement of the underground pipeline damage prevention regulations. The Commission thanks Marathon for its comments on the rules.
The WTG natural gas utilities operate hundreds of miles of transmission and distribution pipelines within the State of Texas. WTG commented that the proposed new rules will impact its business operations, affect the cost of daily business operations, and, to the extent the rules increases their costs of doing business, will ultimately increase rates it charges the consumers served by WTG.
WTG acknowledged the tremendous amount of work done by the Pipeline Safety Division and others who have contributed their time and effort in helping develop the rules with the end being to create safer operating conditions for pipelines under the jurisdiction of the Commission.
The Commission thanks WTG for its comments, but disagrees that the new rules will necessarily increase the cost of doing business. The Commission points out that damage to pipelines also imposes costs for mounting an emergency response, managing the disruption, and repairing the line, in addition to loss of revenue because of loss of service to customers. Preventing that damage is a prudent business practice.
API and AOPL represent hazardous liquids pipeline operators in the United States that own or operate approximately 85 percent of the nation's hazardous liquid pipeline capacity. More miles of pipeline cross Texas than any other state, and API and AOPL believed it imperative that the pipelines serving our nation's energy needs be better protected from excavation damage. API and AOPL support the intent and objectives of the proposed new rules and also support the comments of the Coalition. API and AOPL also made comments on specific portions of the proposed new rules. API and AOPL welcomed the new rules as a fair measure designed in a manner that advances the efforts of many pipeline industry stakeholders to reduce, if not eliminate, incidents of third-party damage to underground pipelines. The new rules may be expected to enhance awareness and communications among the various parties involved in excavation and pipeline operations, as well as to provide the means and incentives for such parties to conduct their activities in a manner that protects against pipeline damage. API and AOPL encouraged timely implementation of the rules upon promulgation. API and AOPL reviewed the comments of the Coalition, concur in and support those comments, and encourage the Commission to give weighty consideration to them. The Commission thanks API and AOPL for their participation in the rulemaking process, and for their support of the Commission's efforts to improve pipeline safety in Texas.
Atmos is the nation's largest pure natural gas utility with operations in twelve states. Atmos's Texas operations provide dependable, safe natural gas service to 516 municipalities and more than 1.8 million customers. Atmos applauds the efforts of the Commission in holding workshops on damage prevention and seeking input from both excavators and operators in developing these proposed rules. The Commission thanks Atmos for its participation in the rulemaking process, and for its support of the Commission's efforts to improve pipeline safety in Texas.
SM&P provides underground locating services throughout the State of Texas, including natural gas lines. SM&P has been dedicated to increasing the level of safety within the locating industry as a whole and is committed to ensuring the best possible levels of public safety and infrastructure protection in the industry. SM&P fully supports the Commission's endeavors to maximize public safety and the intent behind the proposed new rules and acknowledges the Commission's work and efforts in creating the proposed new rules. However, SM&P believed that, as written, the proposed new rules will have unintended consequences and therefore should not be implemented in their current form. The Commission thanks SM&P for its comments, but does not agree that the rules should not be implemented in their current form and notes that the rules as adopted are slightly different from the proposed versions because they incorporate clarifying changes.
TxOGA appreciated the opportunity to submit comments concerning the proposed new rules. TxOGA supports the Commission's efforts in holding public meetings to receive suggestions and comments and in drafting the proposal, and offered some additional recommendations and observations for consideration.
TxOGA is a statewide association with over 2000 members representing all facets of the oil and gas industry from exploration and production to transportation/pipeline to refining and marketing, including both major and independent companies. TxOGA thanked the Commission and its staff for developing a damage prevention rule that will assist in implementing safety standards for any movement of earth deeper than 16 inches near a pipeline facility. Damage prevention is a top priority for the pipeline industry in Texas and TxOGA appreciated the opportunity to work with other stakeholders and the Commission to advance a comprehensive program in Texas that will meet the requirements of the Pipeline Safety Act of 2002 and Pipeline Inspection, Protection, and Enforcement Act of 2006.
TxOGA supports the damage prevention concepts outlined in the CGA Best Practices, and those discussed throughout the rule development process. TxOGA members understand that a comprehensive damage prevention effort will take time to be fully implemented, and on-going changes may be warranted in order to adjust problematic provisions. The Commission thanks TxOGA for its participation in the rulemaking process and for its comments and agrees that there will be a need to review the effectiveness of the rules in reducing damage to underground pipelines.
The CenterPoint companies are operators of gas pipeline systems registered with the Commission. CenterPoint Energy Arkla and CenterPoint Energy Entex are local distribution companies engaging in intrastate natural gas sales to and natural gas transportation for more than 1,481,470 residential, commercial, and industrial customers in the State of Texas. CEIP operates approximately 240 miles of transmission pipelines serving 120 customers in Texas.
In general, CenterPoint supports the new rules because they would improve compliance with the Texas One Call Law (Texas Utilities Code, Chapter 251) and create a helpful regulatory scheme governing the marking of a pipeline after an excavator calls the Texas one call system. In order to accomplish these goals, CenterPoint commented, the rules must also provide certainty and consistency in enforcement. In addition and as recognized in the preamble to the proposed rules, they also should conflict as little as possible with the Texas One Call Law. CenterPoint believed that the proposed rules largely accomplish these objectives, but also that they can be improved in certain areas. The Commission thanks CenterPoint for its comments and agrees that the changes made in the adopted rules, some of which were suggested by CenterPoint, clarify and improve the rules.
CoServ's comments noted that it is situated in one of the fastest growing areas in the state, the Dallas-Fort Worth Metroplex. As a result of intense construction activity, CoServ sustains a disproportionately large number of cut lines every year. Last year, CoServ grew from 40,000 customers to 50,000, and during this time its infrastructure was damaged 255 times by third parties. Excavation damage is CoServ's number one safety concern, and it has been very supportive of efforts to strengthen damage prevention laws and regulation. CoServ has taken additional steps on its own initiative to ensure public safety, such as voluntarily installing excess flow valves, being an active member of the North Texas Damage Prevention Council, and sponsoring excavator safety training sessions with Texas Excavation Safety Systems.
CoServ applauded the hard work on the part of the Commission staff in producing the proposed rules, and wholeheartedly supports the intent of the proposed new rules; once implemented, CoServ pledged to work hard to ensure their success. Nevertheless, CoServ commented, that, as written, some provisions would have unintended consequences. For example, requiring utilities to report all damage to the Commission will probably reduce the current number of damage reports by excavators for fear of being fined by the Commission. Further, CoServ observed, the proposal's broad new reporting and requirements are likely to swamp the Commission with more information than it can handle, even with the planned additional resources. For example, the Commission estimates it will receive 1,000 damage reports under the new rules; however, last year CoServ alone sustained over 250 damage incidents, which is one-fourth of the Commission's estimate. CoServ's comments recommended an alternate reporting program intended to accomplish the same result.
CoServ conceded that the problems the Commission identified are real, and CoServ supports efforts to address them. However, CoServ stated that many of the proposed solutions could be improved by adopting the CGA Best Practices. CGA is a non-profit organization dedicated to promoting damage prevention; its Best Practices program brought together stakeholders, including utilities, excavators, and regulators, to look at all aspects of damage prevention practices. CoServ Gas is a member of CGA, and its comments substituted a number of the Commission's proposed solutions with CGA Best Practices, which CoServ believed is an effective solution and uses a well-recognized authority.
CoServ also commented on the need to educate homeowners, municipalities, and TxDOT regarding the new rules. Currently pipeline companies have the task of educating the affected public and their customers under RP1162. The proposed rules are a huge change for the industry, on top of the fact that many entities have been exempt under the current law for many years. CoServ commented that there must be a reasonable period of time to educate those impacted by the changes. For example, under the current law, homeowners who are hand digging are not required to call for locates. CoServ noted that the proposed rules do not exclude tillage of a depth over 16 inches, which would require homeowners to call for locates when they are planting bushes or trees at a depth that exceeds 16 inches. In CoServ's view, a reasonable amount time needs to be spent educating entities that were previously exempt.
The Commission thanks CoServ for its comments and its support of efforts to improve underground pipeline safety standards. The Commission acknowledges the value of the CGA Best Practices; in fact, they were the foundation of the proposed new rules in Chapter 18. The Commission recognizes also that these new rules are a first step in what is necessarily an ongoing effort to ensure pipeline safety to the extent possible. The Commission disagrees that it will be swamped with information that it cannot handle; part of the intent is to be able to gather and evaluate information about pipeline damage incidents to guide the development of standards for excavating in the vicinity of underground pipelines. The Commission points out that if it is swamped with more information than it can handle, the Commission can revise the rules regarding reporting of damage incidents. Finally, the Commission has declined to require that pipelines conduct mandatory public education specifically focused on one call issues and instead to adopt the federal requirements for public education in API 1162.
The Danielle Dawn Smalley Foundation is a nonprofit corporation established in 2002 to promote pipeline safety and pipeline safety education to excavators, first responders, civic and community groups, and school systems. The Smalley Foundation believes that the best results can be achieved through innovative collaborations between non-profits, governmental and educational entities, and private industry. The Foundation is apolitical but certainly supportive of reasonable measures designed to enhance pipeline safety. In reviewing the proposed new rules in Chapter 18, the Foundation concluded that the new rules will result in a safer public. The Commission thanks the Smalley Foundation for its comments and its support of pipeline safety efforts.
Devon appreciated the opportunity to review and comment on the proposed rules. Devon subsidiaries that operate pipelines in Texas are Acacia Natural Gas Corporation, Devon Energy Production Company, L.P., Devon Field Services Company, Devon Gas Services, L.P, and Southwestern Gas Pipeline, Inc. Devon supports the Commission's efforts to protect underground pipelines, improve public safety, and allow for operators and excavators to agree on special protocols for large projects. These options should encourage cooperation, reduce third-party damage, and better protect the public. Devon offered comments on specific provisions in the rules to further develop and clarify the rules to enhance these efforts.
TxDOT commented that the proposed new rules in new Chapter 18 exceed the Commission's authority by attempting to regulate TxDOT's operation of the state highway system. TxDOT stated that the preamble to the proposed rules erroneously states that Health and Safety Code, Subchapter H, authorizes the Commission to regulate the activities of anyone who moves earth in the vicinity of an intrastate underground pipeline. TxDOT's opinion is that Subchapter H applies only to excavations on easements or rights of way owned by a pipeline company. Most pipelines on the highway right-of-way are installed not pursuant to any pipeline easement or right-of-way, but as authorized by the Texas Utilities Code, §181.042, on an at-risk basis on property owned and controlled exclusively by TxDOT. Subchapter H does not apply to these pipelines.
TxDOT commented that the other two statutes referenced as authority for the Commission to adopt these rules are Texas Utilities Code, §121.201, and Natural Resources Code, §117.012, each of which authorizes the Commission to exempt TxDOT from the rules. TxDOT urged the Commission to do so in order to preserve the ability of pipeline companies to continue to use the highway right-of-way.
TxDOT argues that the Texas Utilities Code grants gas companies the right to place their pipelines on highway right-of-way, but grants them no property interest. Under Texas law, this right to use the highway right-of-way is not absolute, but must always be subordinate to the use of the property for highway purposes. In City of San Antonio v. Bexar Metro. Water Dist. , 309 S.W.2d 491, 492 (Tex. Civ. App.-San Antonio 1958, writ ref'd ), the court stated, "The main purposes of roads and streets are for travel and transportation, and while public utilities may use such roads and streets for the laying of their telegraph, telephone, and water lines, and for other purposes, such uses are subservient to the main uses and purposes of such roads and streets." See also City of San Antonio v. United Gas Pipe Line Co. , 388 S.W.2d 231, 234 (Tex. Civ. App.-San Antonio 1965, writ ref'd n.r.e. ). "The primary purpose for which highways and streets are established and maintained is for the convenience of public travel. The use (of) such highways and streets for water mains, gas pipes, telephone and telegraph lines is secondary and subordinate to the primary use for travel, and such secondary use is permissible only when not inconsistent with the primary object of the establishment of such ways." In 2002, the Attorney General reiterated TxDOT's authority to regulate utilities on the right-of-way in Opinion No. GA-0003. By placing strict regulations on land use to the extent that TxDOT no longer controls the operation of its own roadways, TxDOT claims that the Commission is creating a situation whereby the presence of gas lines is inconsistent with the use of the roadways for travel. In TxDOT's view, this negates the provisions of Utilities Code, §181.042, and would necessitate the removal of the lines from the highway right-of-way.
TxDOT pointed out that new rule §18.1(a) applies to excavation "in the vicinity of an underground pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid, or carbon dioxide," but that the term "in the vicinity" is not defined. Moreover, because the presence of some types of subject pipelines may not be reasonably known by an excavator prior to issuance of a one call notification, excavators would be required to treat every excavation deeper than 16 inches within the highway right-of-way as though it were covered by the rule.
TxDOT commented generally that the Commission has elected to ensure the safety of underground pipelines using the existing Texas One Call procedures while other means of protecting pipelines (i.e., design standards, etc.) would achieve the same results without either encroaching on the authority of or unnecessarily burdening other agencies, including the Texas One Call Board as well as TxDOT.
TxDOT asserted that the new rules will result in costs of $22.9 million annually for TxDOT, for maintenance operations alone, and that an estimated annual cost of $108.9 million will be required by utility companies required to respond through the One Call system to the approximately 382,000 additional calls TxDOT will make to comply with the new rules. Again, TxDOT pointed out that these costs are associated with its maintenance operations only. TxDOT stated that costs to its archeology program are more difficult to identify with confidence, as there are many intangible variables. For example, existing contracts would have to be voided or renegotiated, time periods necessary to obtain NEPA and NHPA clearance would be extended, and procedures for planning and executing field surveys would have to be revamped. However, because the rules would require field surveys to include a minimum of two trips rather than one, a minimum cost estimate for this program alone can be obtained by doubling average annual survey costs, which are averaging $598,000.00 per year over the last three years. Actual costs would probably be considerably higher.
TxDOT concluded that the new rules, as proposed, would extremely hamper, delay, and restrict the ability of TxDOT to work within the highway right-of-way to protect the safety of our traveling public. The proposed rules would impose delays, not only on highway construction projects but, even more importantly, on standard safety procedures, creating unnecessary hazards for the traveling public. As noted above, TxDOT was previously provided an exemption by the Legislature within Section 251.004 of the Texas Utilities Code to address this safety issue. The rules, as proposed, appear to nullify this exemption, placing the traveling public at significant risk of injury or death. TxDOT strongly recommended exempting TxDOT activities from these proposed rules through Section 251.004 of the Texas Utilities Code.
The Commission disagrees with TxDOT that the preamble expressly asserts authority to regulate TxDOT pursuant to Health and Safety Code, Subchapter H. The Commission finds, however, that pursuant to Texas Utilities Code, §121.201, and Natural Resources Code, §117.012, the Commission has the authority to require excavators and operators to comply with the safety requirements set forth in Texas Health & Safety Code, Subchapter H, relating to Construction Affecting Pipeline Easements and Rights-of-Way. Further, the provisions of Texas Utilities Code, §121.201, and Natural Resources Code, §117.012, authorize, but do not require, the Commission to exempt from the rules "other entities or occupations if the Commission determines in its rulemaking process that exempting those entities or occupations . . . is in the public interest or is not likely to cause harm to the safety and welfare of the public." The Commission recognizes the exemption that TxDOT holds pursuant to Texas Utilities Code, §251.004, but notes that the Commission has no authority or obligation to enforce any of the provisions of that statute.
The Commission also notes, however, that TxDOT and its contractors have been making calls to the notification centers, even though it is not required to do so under Texas Utilities Code, §251.004. Knowing that TxDOT was already using the notification centers to request pipeline locates was part of the basis of the Commission's fiscal note. Regardless of the number of incidents or the ability to find "fault," the Commission's goal is to promote safety and to align Texas practices with national best practices for excavating in the vicinity of underground pipelines. The Commission is committed to adopting improved safety practices that will prevent costly damage to underground pipelines and possible personal injury or loss of life. The Commission disagrees that design standards would achieve the same results in terms of preventing damage to underground pipelines due to excavation. Finally, the Commission recognizes that TxDOT is charged with protecting the safety of the traveling public, and that there may be instances in which exempting TxDOT's operations from the scope of the new rules will greatly enhance the ability of TxDOT to perform its vital mission and, at the same time, will not be likely to cause harm to the safety and welfare of the public. These exemptions are discussed in greater detail in subsequent paragraphs.
PHMSA applauded the Commission for its timely and comprehensive implementation of the requirements imposed by the Texas Legislature in recent amendments to §117.012 of the Texas Natural Resources Code and §121.201 of the Texas Utilities Code. PHMSA acknowledged that Mary McDaniel and her staff have worked very hard to secure input from affected stakeholders in developing this proposal, and the end product reflects that hard work. PHMSA noted that the proposed rules appear to be consistent with the Pipeline Safety Improvement Act of 2002, Public Law 107-355, and the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006, Public Law 109-468, (PIPES Act), 49 U.S.C. §6105 et seq., and the Common Ground Alliance (CGA) Best Practices. PHMSA acknowledged that there may be some revision due to comments received during the public comment period but anticipated adoption of the new rules substantially as proposed. The Commission appreciates PHMSA's comments and notes that the changes made in the adopted versions of the new rules are for clarification, and do not diminish the effectiveness of the rules as proposed.
Texas Gas reviewed the proposed new rules and limited its separate comments to proposed new §18.12 and Table 1, but stated its support and adoption of the comments filed by Atmos and CenterPoint.
TPA commented that securing tougher damage prevention laws and enforcement of those provisions is a top priority of the pipeline industry. TPA extended great thanks to the Commission and its staff for the time spent ensuring a deliberate open process in which the proposed rules were developed. Overall, the rules are a great first step toward improving pipeline safety and meeting the requirements of the recent and past pipeline safety acts and the spirit of the CGA Best Practices.
TPA offered several comments regarding specific provisions of the proposed rules. TPA supports the extensive comments developed by the Coalition, which developed a number of recommendations and suggestions that will clarify several provisions of the proposed rules in addition addressing concerns relating to the penalty rule. TPA commented that the proposed rules are a great first step in moving Texas forward to creating and enforcing damage prevention standards that will assist in keeping our state's energy infrastructure and the general public safer, and noted that damage prevention efforts will be successful only to the degree that all stakeholders take an active role to ensure their actions are responsible. TPA believed the rules are aligned with the concepts of the Common Ground Alliance and were written with the input from any stakeholders wishing to be included in the process. The Commission thanks TPA for its participation in the rulemaking process and for its support of efforts to improve the standards for pipeline damage prevention.
TGA is an association comprising approximately 90 distribution and transmission companies in Texas, including municipal gas distribution systems and investor-owned distribution and transmission companies throughout the State of Texas. These systems account for over ninety-nine percent of the natural gas customer base in the state. TGA noted that its comments may not represent the opinion of each and every member, and that some members are being represented by other organizations and others will be submitting individual comments. TGA supports the efforts of the legislature and the Railroad Commission to protect underground pipelines and to reduce third-party damage to these pipelines which would increase the safety of the workers around pipelines as well as the general public. TGA commended the Pipeline Safety Division for developing the new rules under the guidance of Mary McDaniel, P.E., Director of Pipeline Safety. TGA acknowledged in particular Ms. McDaniel, the Commission staff, and others who devoted time and effort to the development of the rules for the even-handed development of difficult rules, and urged the support of the industry for the new rules. The development of rules like these requires fairness and balance, which was shown in the proposal. TGA offered comments in an effort to help develop rules that are equitable to all parties and to enhance the efforts of the Pipeline Safety Division. The Commission thanks TGA for its participation in the rulemaking process and for its comments and suggestions on the new rules.
OXY stated its appreciation for the opportunity to participate in developing, reviewing, and commenting on the proposed new rules. OXY supports the Commission's efforts to protect underground pipelines, improve public safety, and allow for operators and excavators to agree to special protocols on large projects. These options should encourage cooperation, reduce third-party damage, and better protect workers and the public. OXY offered specific comments in an effort to further develop and clarify the rules to enhance these efforts. The Commission thanks OXY for its participation in the rulemaking process and for its comments and suggestions on the new rules.
The Coalition consists of 12 major pipeline operators in the state including Anadarko, Atmos, Chevron, Copano, Dow, DCP Midstream (formerly Duke Energy Field Services), Energy Transfer, Enterprise, ExxonMobil, Magellan Midstream, Shell, and Williams. The Coalition is dedicated to developing stronger damage prevention laws that further protect pipeline facilities in Texas. The Coalition appreciated the opportunity to comment on the proposed rules that implement the provisions of House Bill 2161 and Senate Bill 9 passed by the 79th Legislature.
The Coalition extended great thanks to all of the Commission staff and Commissioners' offices for the efforts relating to the new rules. The Coalition commented that the Commission staff did a remarkable job of evaluating the issues from all stakeholder groups when developing and drafting the proposed rules. Open dialog between affected stakeholder groups occurred throughout the process, especially during three public stakeholder workshops held over the course of a nine-month period. Feedback was requested and given throughout the process in order to address the needs, concerns and best interests of pipeline operators, damage prevention stakeholders, and the public at large.
The Coalition noted that the pipeline industry has a unique position within the group of underground facilities. While each day the pipeline industry strives to keep pipeline systems operating safely and efficiently, the greatest risk to daily operations is that of external force. Adopting the damage prevention rules will be a major accomplishment and step in the right direction with regard to underground damage prevention, specifically underground damage prevention in the State of Texas.
The Coalition reiterated its support for the rules, and thanked the staff and Commissioners for their time and effort in making the rules a reality. The Coalition looks forward to working with staff and the Commissioners to address the issues outlined in these comments.
The Coalition offered support on several specific provisions of the rules that will assist with advancing damage prevention efforts in Texas. First, the rules address long-standing unconformity with regard to the applicability of damage prevention requirements for all stakeholders. Damage prevention standards should be followed by, and applied to, all stakeholders regardless of ownership, activity, or status. The draft rules establish a clear and consistent depth requirement for all excavation. Further, the rules permit a review of exemptions by the Commission if unique circumstances arise.
Second, the rules are based on the Common Ground Alliance Best Practices. The Common Ground Alliance is a non-profit organization dedicated to improving damage prevention efforts by all affected stakeholders. The Common Ground Alliance Best Practices are developed by consensus with the feedback and approval of all underground damage stakeholders including the pipeline industry, contractors and excavators, telecommunication and electric industries, state one call notification systems, locator groups, government representatives, emergency responders, insurance groups, public-works departments, and railroads. Representatives from all of these industries and backgrounds are in agreement that these standards are the minimum best standards that should be implemented to improve damage prevention efforts throughout the nation.
The Coalition noted that the pipeline industry is striving to improve a number of areas that directly relate to the security and integrity of pipeline infrastructure. Damage prevention is one of these areas. In Texas, damage to underground facilities by third parties remains the leading cause for pipeline accidents. In fact, the rate of damage by third parties in Texas far exceeds the national average. The pipeline industry is a strong supporter of tougher damage prevention laws and enforcement of those provisions, and believes that efforts like this rulemaking are a positive step toward addressing third-party damage.
Third, the Coalition stated that the rules will address the requirements of the Pipeline Safety Act (PSA) of 2002 and the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006, which will provide additional resources to the Commission for implementing and enforcing these provisions. The Coalition believes the rules meet the intent of the PSA 2002 and will be able to satisfy the requirements of the PIPES Act of 2006. The rulemaking process was an open process that encouraged the involvement of all stakeholder groups. And, once implemented, the enforcement process will engage all stakeholders in the review and enforcement of the Railroad Commission rules. The Coalition looks forward to working with the Commission to develop this process in a manner that provides the greatest improvement to damage prevention knowledge, compliance, and enforcement that can be achieved.
Atmos commented that the wording of proposed §18.1(c), which states that persons exempt under Texas Utilities Code, Chapter 251 "may" be required to comply with new Chapter 18 requirements, creates ambiguity concerning the scope of Chapter 18. Atmos suggested that this language be revised to read as follows: "(c) Persons that are exempt from the provisions of Texas Utilities Code, Chapter 251, are required to comply with this Chapter unless the person is exempted under the provisions of subsection (d) of this Section."
Atmos pointed out that, generally stated, the proposed rule would apply to all persons engaged in the movement of earth in the vicinity of an intrastate pipeline. Every day gas distribution operators respond to gas leak reports. A proper investigation of a gas leak report involves probing the earth in order to take gas concentration readings which allow the investigator to determine the source of the odor. While it is unclear under the proposed rule whether a gas operator would have to physically mark its own lines prior to investigating a potential gas leak and whether it would have to report inadvertent damage to its own facilities, the fact remains that under the proposed rule, prior to placing the initial probe bar in the ground to investigate a potential gas leak, an emergency locate request would have to be placed to a one call center with the corresponding two-hour waiting period because another intrastate gas, hazardous liquid, or carbon dioxide operator may have facilities in the area. Atmos submits that the safety issues inherent to a leak investigation outweigh the potential third-party damage issues to other pipeline facilities and requests that the specific act of leak investigation be exempted from the rule by adding an additional exemption for gas leak investigations as paragraph (4) in §18.1(d).
The Commission agrees that the wording of §18.1(c) lacks necessary specificity, and has incorporated Atmos's suggested change into the adopted rule. The Commission disagrees with Atmos's second comment that a leak investigation on a pipeline's own facilities be exempt, but notes the following. In the process of the workshop discussions, the term "probing" was removed from the definition of "movement of earth" at the request of the distribution utilities specifically to accommodate the need to perform leak investigations. However, "digging" and "excavating" are still within the scope of the definition of "movement of earth," and would require an emergency locate request.
TxDOT recommended that the possible exemptions that may apply as listed in proposed §18.1(c) be further outlined because the term " may be required" is too ambiguous and leaves open the question of what criteria the requirement is based on. The Coalition also commented that proposed §18.1(c) is ambiguous. As stated in response to other comments, the Commission has modified the provision.
Devon noted that §18.1(d) retains exemptions in Texas Utilities Code, §251.003, and specifically, paragraph (5), which states "the portion of an exploration and production underground facility that is located within the boundaries of the oil or gas field from which the oil and gas is produced and that is not located in the boundaries of an established easement or right-of-way granted for the benefit of a governmental entity or a private entity if the easement or right-of-way is granted for a public purpose." Devon advised the Commission that even though operators may choose to cover all or a portion of its exempt pipelines with One Call service, these lines are still exempt and not subject to Chapter 18. Devon argued that exempt status will not always be simple to determine and questioned whether the operator can assume that an easement or right-of-way for an above ground utility has no bearing on the exemption. Operators will know if their pipeline crosses the boundaries of an established easement or right-of-way but they will not necessarily know if the easement or right-of-way is granted for a public purpose.
Devon noted that the Texas Pipeline Mapping System could be used to identify any pipelines with utility status and thus have a right-of-way for a public purpose. However, non-pipeline utilities are not mapped by TPMS. This seems to leave only one alternative: the operator would have to do a field survey to confirm that the excavation did not occur within the boundaries of a covered easement or right-of-way. The operator could then make a good faith declaration that the pipeline in question was indeed exempt under Utilities Code, §251.003(5). Devon argued that sufficient time should be allowed for the operator to resolve any issues concerning exempt status before the issue is sent for an administrative hearing.
Devon also stated that it is important to have comprehensive data on damage to pipelines in order to develop the best possible damage prevention program for Texas. Under the present regulations the Commission should encourage operators to report damage to all pipelines whether or not they are covered by Texas One Call legislation. But voluntary reporting does not affect the exemption that certain pipelines have from Chapter 18 requirements.
The Commission recognizes that it may be difficult to determine how or whether the exemption in Utilities Code, §251.003(5) applies in any particular situation, but disagrees that using TPMS and easement records is sufficient for safe excavation operations in the vicinity of underground pipelines. The Commission notes that even if the TPMS is accurate to within 500 feet, that's still insufficient for safe excavation. Moreover, distribution systems are not included in TPMS. The Commission concedes that these new rules are not perfect, but they are a good beginning and a significant improvement over the current state of excavation standards. The Commission fully expects to amend these rules from time to time as the industries and the regulators gain experience and the technical resources improve.
With respect to §18.1(d)(1), which incorporates into Chapter 18 the exemptions in Texas Utilities Code, §251.003, TxDOT estimated that this provision will result in an additional 382,000 calls being made annually to One Call by TxDOT maintenance operation personnel. TxDOT noted that the Texas Legislature exempted TxDOT from Texas Utilities Code, §251.004, but new §18.1(d) refers to only to Texas Utilities Code, 251.003. TxDOT urged that contractors working in the TxDOT right-of-way and TxDOT employees excavating in or near department right-of-way should be exempt from the requirements contained in the proposed rules, and recommended that §18.1(d)(1) be revised to refer to both Texas Utilities Code, §251.003 and §251.004.
The Commission agrees in part and disagrees in part with this comment. The experience of the notification centers and the Commission is that TxDOT employees and contractors have been making locate calls, so the Commission did not anticipate that there would be 382,000 additional calls. Nevertheless, the Commission recognizes that because TxDOT has its own important mandate to protect the safety of the traveling public, there are certain maintenance activities performed by TxDOT employees that it is reasonable to exempt from the provisions of Chapter 18. The Commission finds that exempting from the scope of Chapter 18 the following activities when performed by TxDOT employees in TxDOT right-of-way is in the public interest and is not likely to cause harm to the safety and welfare of the public: sampling and repair of pavement, base, and subgrade; repair of roadway embankment adjacent to pavement structure; reshaping of unpaved shoulders and drop-offs; installation and maintenance of guardrails, cable barriers, delineators, vehicle attenuators, sign posts, mailboxes;, and cables for traffic signals and luminaries; cleaning of ditches; and removal of silt from culverts. Further, the Commission finds that exempting hand digging by an employee or contractor of TxDOT for TxDOT's archeological program is in the public interest and is not likely to cause harm to the safety and welfare of the public. The Commission adopts §18.1(d) with these additional exemptions.
With respect to §18.1(e), OXY supports the clarification that any movement of earth deeper than 16 inches requires making a locate call, marking the proposed excavation, and ensuring that there is a positive response. OXY anticipates that significant education efforts will be needed by both industry and the Commission to apprise agricultural interests of the possible impact to their operations. The Commission commends OXY for its commitment to public education efforts, and notes that API-1162 contains new requirements for public education and new performance measures and that the new 811-Call Before You Dig Program starts in May, 2007.
With respect to §18.1(e), Marathon commented that the chapter should apply to movement of earth by tillage that exceeds a depth of 12 inches rather than 16 inches. This is consistent with other states' current requirements. There is little agricultural tillage between 12 inches and 16 inches, so there should be little affect of changing to the more consistent dimension. The Commission notes that two of the statutes under which the rules were proposed and are being adopted, Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201, limit the scope of the Commission's authority to adopt safety standards related to the prevention of damage to underground pipelines to the movement of earth by a person in the vicinity of the facility, other than movement by tillage to a depth of 16 inches or less. The Commission is focusing the effort of this rulemaking toward establishing the consistent application of the national Best Practices in Texas; the national standards are still set at 16 inches or greater.
The Smalley Foundation also approves of the mandate requiring notice of TxDOT excavation exceeding a depth of 16 inches, rather than 24 inches. The Smalley Foundation has conducted pipeline safety education classes for TxDOT workers and have found them to be receptive and in need of such training. This more restrictive rule will help to insure their safety and the safety of others. The Smalley Foundation also suggested that the state offer pipeline safety and public awareness classes to its TxDOT workers in the future. More education equals better safety. The Commission agrees that more education is helpful.
New §18.1(f) provides that, unless otherwise specified, all time periods used in this chapter shall be calculated from the time the original notification is given to the notification center. New subsection (g) provides that unless otherwise specified, all time periods are stated in working days. Subsection (h) states that unless an excavator and an operator otherwise expressly agree, the life of a line locate ticket shall be 14 days. Marathon commented that it is ambiguous and unclear as to the meaning of the 14 days language. To Marathon, "14 days" implied two weeks. Marathon suggested that this be changed to 15 days if the intent is 3 weeks or change to 14 calendar days.
The Commission agrees that the wording, as proposed, was not clear. In the rule workshops, the clear preference was for all time periods to be working days, which is a defined term in §18.2(25). The Commission also intended that the general provision in §18.1(g) be understood as meaning that any time period that is stated in days would mean working days. However, from this and other comments, the Commission recognizes that the general provision should be revised to say exactly that. As adopted, new §18.1(g) states that unless otherwise specified, all time periods that are stated in days shall mean working days.
Air Products commented on §18.1(h) that the wording should be amended to say "working" days. The Commission disagrees with this comment; as adopted, §18(g) states that unless otherwise specified, all time periods that are stated in days shall mean working days, which is a defined term in §18.2(25).
SM&P commented on the provision that the life of a locate ticket will be set at 14 working days. This proposed time frame and language would allow excavators to dig when locate marks have been altered or destroyed either by work activity or weather. There is much potential for error when weather or other factors make previously and correctly marked lines difficult to read or faded. It is not in the best interest of public safety to allow excavators to dig while these conditions exist. SM&P would propose additional language be added to the statute indicting that the life of a locate ticket shall be the shorter of 14 days or when the locate marks become altered or destroyed.
The Commission disagrees with this comment. The rules distinguish between the life of a locate ticket, which is 14 working days unless otherwise agreed, and the viability of locate markings, which is variable. The provision regarding the life of a locate ticket must be read in conjunction with new §18.4(g), which provides that an excavator must protect and preserve locate markings from the time the excavator begins work until markings are no longer required for the proper and safe excavation in the vicinity of all underground pipelines. Clearly, the rules require that markings be visible at the time of excavation.
TGA commented that in addition to specifying the life of a locate ticket, the rules should address the size (scope) of a locate ticket. The size of the locate ticket should be what could reasonably be expected to be excavated in the 14 days of the life of the ticket. Currently, a locate ticket can be several miles, much longer than could possibly be excavated in the 14 day life of the locate ticket, resulting in markings being made that will not possibly be used, markings being lost or damaged, and, additionally, causing a refresh or update of the original locate ticket to be required.
The Commission agrees that specifying the size and scope of a locate ticket is a Best Practice, and it is an issue that may be addressed in future rulemakings. For the present, however, it is possible for an excavator and an operator to negotiate and agree on the protocols applicable to an excavation site in the vicinity of underground pipelines based on the particular characteristics of each job. Pursuant to new §18.9(a)(9) (proposed as §18.9(a)(8)), the size and scope of locate tickets for a specific project could be considered "any other agreement with respect to excavation activities and/or marking requirements that will or will tend to ensure the proper and safe excavation in the vicinity of an underground pipeline." As the Commission and the industry gain experience with these rules, and more specifically with agreements under new §18.9, it will be appropriate to re-visit the issues attendant to the size and scope of locate tickets.
Air Products commented that §18.1(i) should be amended to include the following statement: "Records shall include one call tickets and positive response notifications. Retention of one call tickets at the One call Center is an acceptable method for retention."
The Commission agrees that providing examples of the kinds of records that need to be retained is useful; however, the Commission notes that there may be records in addition to those listed that excavators and operators might need to retain. Therefore the Commission has added a slightly different clarification than the one suggested by Air Products in the adopted rule: "At a minimum, each operator and each excavator shall retain locate tickets and positive response notifications. Retention at a notification center is an acceptable method of retention for locate tickets."
With respect to new §18.2(1), Devon Energy commented that defining "defacing" as pipeline damage is problematic. New §18.2(1)(A) and Texas Utilities Code, §251.002(4)(A) both define damage as including but not limited to "defacing, scraping, displacement, penetration, destruction, or partial or complete severance of an underground pipeline or of any protective coating, housing, or other protective device of an underground pipeline." The Merriam-Webster Online dictionary defines "defacing" as "to mar the appearance of: injure by effacing significant details." Of the named damages, Devon asserted that "defacing" is the least injurious to pipe integrity, and therefore should be removed from the Chapter 18 definitions because, by definition, it mars only the protective coating and does not necessarily compromise its function.
The Commission disagrees with Devon's suggestion to remove "defacing" as an element of the definition of "damage." While "defacing" may be the least injurious, it can still result in corrosion and, ultimately, failure. Adopting this definition makes the rules in Chapter 18 consistent with the standards in Texas Utilities Code, Chapter 251, that have been in place since 1999.
There were several comments on the definition of "emergency" in §18.2(3). CenterPoint observed that Texas Utilities Code, §251.155, currently exempts emergency excavations from the 48-hour notice requirement otherwise required by the law. The law, however, requires the excavator responding to an emergency situation to notify the notification center "as promptly as reasonably possible." In recognition of the need to rapidly respond to public emergencies, CenterPoint has traditionally given such calls priority in its locating system and tries to respond to them within four hours of receipt of the call. Unfortunately, CenterPoint noted, some excavators attempt to avoid the 48-hour notice requirement by calling in location requests as emergencies when, in fact, the situations do not qualify under the exemption. This abuse of the system overloads the locating resources of an operator and makes it more difficult to respond to locate requests by excavators who are complying with the intent of the statute. CenterPoint commented that the Commission correctly recognizes the seriousness of this problem by creating a penalty for a false report of an emergency line locate request in item no. 2 of the penalty calculation worksheet, but noted that there is no corresponding text in proposed Chapter 18 prohibiting excavators from calling in a false emergency. As part of CenterPoint's recommendation on implementing the prohibition contemplated by the penalty schedule, and to harmonize this with the Texas One Call Law, CenterPoint also suggested that the definition of an emergency in §18.2(3) be changed to match the corresponding definition in Texas Utilities Code, §251.155(a), by substituting the following definition of "emergency" for the one that was proposed: "a situation that endangers life, health, or property or a situation in which the public need for uninterrupted service and immediate re-establishment of service if services are interrupted compels immediate action."
The Commission agrees in part and disagrees in part with CenterPoint's comments. The Commission agrees that the definition of "emergency" in §18.2(3) should be changed to match the definition in Texas Utilities Code, §251.155(a), and has made the suggested change in the adopted rules. However, the Commission has reconsidered its proposal to penalize the false reporting of an emergency locate request. The Commission has determined that, ultimately, it is within the purview of the Texas One Call Board to determine and enforce standards for emergency locate requests. The false emergency locate requests are clearly a resource issue for operators, but not of the same magnitude, in terms of safety, as failure to locate, failure to make a positive response, or failure to give notice of intent to excavate. The Commission has removed the penalty proposed in Table 1, line 2.
With respect to the definition of "emergency," TxDOT commented that the ability to excavate in an emergency without making the call to the notification center is not clearly stated in the rules. One important need for the Texas Utilities Code, §251.004, exemption arises when TxDOT's archeology staff responds to emergency archeological discoveries. The Archeology Branch and its contractors normally do utilize the Texas One Call system prior to backhoe trenching and other forms of mechanical ground disturbance in the existing and proposed right-of-way, but the exemption is essential to allow for timely response to emergency discoveries of cultural resources discovered during construction, which do not meet the definition of "emergency" under the proposed rule. The Commission finds that by amending the definition of "emergency" in the adopted rules, as explained with respect to CenterPoint's comment, and by adopting specific exemptions for certain TxDOT activities, TxDOT will be able to respond to emergency archeological discoveries. Further, the adopted definition of "emergency" includes a situation that endangers "property," which the Commission would recognize as including cultural resources discovered during excavation or construction.
With respect to the definition of "excavate" in §18.2(4), Air Products commented that there should be an exception for locating a pipeline in response to a notification from the Texas One Call System. The Commission declines to make this change, however, because in the process of the workshop discussions, the term "probing" was removed from the definition of "movement of earth" at the request of the distribution utilities specifically to accommodate the need to perform leak investigations. However, "digging" and "excavating" are still within the scope of the definition of "movement of earth," and would require an emergency locate request.
TxDOT commented on the definition of "hand digging" in §18.2(6). Specifically, TxDOT noted that the existing rule (Texas Utilities Code, Chapter 251) applies to mechanical forms of excavation only. This is the most critical difference between the two rules (Texas Utilities Code, Chapter 251, and the Commission's rules in Chapter 18) with regard to its impact on TxDOT archeological activities. To satisfy its responsibilities under federal and state antiquity laws, TxDOT's archeology program and its contractors excavate literally thousands of holes (shovel tests and excavation units) by hand every year in existing and proposed right-of-way. TxDOT is unaware of any case where such activity has resulted in damage to a facility that is the subject of the proposed rules. Moreover, because archeology is inherently a process of discovery, work localities within a project area are often unpredictable and evolutionary, necessitating further delays as revisits are conducted to clear other loci within a given project area. If this provision is adopted, and hand excavated holes must be coordinated for utility location according to the procedures outlined, time demands and costs to TxDOT will skyrocket, and the agency's ability to meet the demands of construction letting schedules will suffer, delaying needed highway construction projects. The Commission has adopted §18.1(d) with an exemption for hand digging by an employee or contractor of TxDOT for TxDOT's archeological program.
Equistar and OXY commented on the definition of "legal holiday" in §18.2(7) as a holiday specified as a legal holiday by Subchapter B, Chapter 662, Texas Government Code. Equistar stated that since the industry does not recognize Texas state holidays, specific reference to Texas state holidays will cause operators and/or excavators to inadvertently violate the time periods mandated for giving excavation notices and making positive responses. Equistar recommend that there be no distinction with respect to state holidays in the new rules. OXY stated its concern with the inclusion of the Texas state legal holidays. Most businesses recognize the federal holidays but do not recognize the eight state holidays. This could lead to some notice or positive response issues, particularly related to state agencies such as the Department of Transportation.
The Commission disagrees with these comments and declines to make a change to this definition. The list of legal holidays is objective and is available to everyone. Whether an excavator or an operator is working on any particular day is irrelevant to the manner in which the time lines are calculated. Further, an excavator and an operator may agree to some other manner of calculating deadlines, pursuant to new §18.9, Options for Managing an Excavation Site in the Vicinity of an Underground Pipeline.
Air Products commented that the definition of "locator" in §18.2 should include the location of the vertical location of an underground pipeline. The Commission disagrees with this suggestion. This issue was raised and discussed at some length in the workshops. The Commission agrees that this issue may need to be addressed in future reviews of what constitutes the best practices in locating pipelines, but must recognize the reality that vertical location technology is not developed to the necessary degree of accuracy.
TxDOT commented that the definition of "movement of earth" in §18.2(11) is overly restrictive. The term "moved" would mean TxDOT's maintenance crews could not so much as straighten a leaning delineator sign post without making a call to a notification center. The definition would even require making a call to a notification center, with the attendant delays, when performing critical functions such as repairing guardrail posts or sign posts, or clearing ditches of sedimentation. These are activities that, in order to protect the safety of the traveling public, must be performed without delay. None of these types of activities pose a real threat to pipelines. In addition, the restriction on movement over a depth of 16 inches would severely hamper the environmental and archeological duties and activities of TxDOT's Environmental Affairs Division who must routinely dig below a depth of 16 inches. The Commission has agreed in part with these comments and has adopted an exemption from the rules for certain activities when performed by TxDOT employees in TxDOT right-of-way.
CenterPoint suggested that the definition of "notification center" in §18.2(13) be slightly amended to insert the words "Subchapter C" at the end. This change clarifies that the definition refers only to notification centers receiving and disseminating notices of excavation, and not the Texas Underground Facilities Notification Corporation d/b/a Texas One Call Board, which is another legal entity that is established pursuant to Chapter 251 of the Texas Utilities Code. The Commission agrees with this suggestion and has made this clarifying change in the adopted rule.
The proposed definition of "positive response" in §18.2(17) received several comments. Marathon proposed that the positive response system be defined to be administrated through the one call center rather than responding directly to the excavator. This type of system will be much more effective communication whether a response has occurred and thus much more effective in preventing damage and personal injury. The Commission recognizes that it would be efficient to administer the positive response requirement through the notification centers; however, because the Commission does not have jurisdiction or authority over the notification centers, the Commission cannot require them to take any particular action. The Commission is unable to make the suggested change.
CenterPoint suggested that the phrase "to an excavator" be inserted after the word "notification." This would be a clarification that the notification contemplated by the positive response definition relates to required notifications to excavators. The Commission agrees and has made this clarifying change.
TPA strongly urged the Commission to clarify the manner in which operators will be required to provide a positive response under §18.2(17). As the rule is currently drafted, there are no limitations as to the number of ways a pipeline operator may be required to provide a positive response to an excavator. TPA requested that the manner in which a positive response is given be limited to several options, specifically by fax, phone, e-mail or written correspondence. TPA believes this is an adequate list of options that will accommodate the needs of both pipelines and excavators. The Commission agrees with this comment and has made the suggested clarifying change, along with the addition of "pager" as a method for providing a positive response.
The Coalition addressed the use of the term "planned excavation" in this definition and in new §18.3(a) and (d). Pipeline operators are concerned with all excavation activities that have the potential to damage or disrupt pipeline operations regardless of whether or not they are planned. The Coalition asserted that through the use of the word "planned," the proposed rules imply that certain types of excavation activities are covered by this rule while others are not. The Coalition expressed concern that if the word "planned" remains in the rule, those entities required to follow rule could use "planned" as a means of circumventing the requirements and intent of the rule. For this reason, the Coalition sought to have the word "planned" struck throughout the preamble and proposed rule. The Coalition also suggested that the manner of a positive response be limited to fax, telephone, e-mail, written correspondence, or other methods approved by the Commission, and that "other shared or transmitted information" not be permitted as a form of positive response.
The Commission agrees in part with this comment. The Coalition makes a good point with respect to the use of the term "planned," although there are no "accidental" excavations and the only difference is whether the planning is done well in advance or under emergency conditions. Nevertheless, the word is not critical to the proper functioning of the new rules in Chapter 18, and the Commission has removed it from §18.2(17) and §18.3(a) and (d) in the adopted rules. The Commission agrees with the Coalition's suggestion that the manner of positive response be limited, and with removing "other shared or transmitted information" as a permissible manner of providing a positive response. The Commission has included "pager" as an acceptable means of providing a positive response, but has not included "or other methods approved by the Commission" to make it clear that only the methods listed in the definition may be used to provide a positive response.
With respect to the definition of "tolerance zone," Air Products suggested adding an alternative definition of "tolerance zones defined by operator easement privileges." The Commission disagrees with this suggestion; easements are simply not precise enough to ensure accurate pipeline location.
AGC of Texas commented that the definition of "tolerance zone" should be clarified to reflect that the tolerance zone applies to the marks used to locate the facility. The Commission disagrees with this comment. A tolerance zone is measured from the center of the pipe, not from the markings, which is only an approximate center line.
Marathon requested further clarification, and offered this alternative definition of "tolerance zone": "the area between the vertical planes18 inches on either side of the outside edge of the underground pipeline on a horizontal plane." The Commission disagrees with the use of vertical locations at this time because the technology is still emerging, its use is not widespread, and the results are still too variable to be reliable.
TxOGA commented that it respects the definition of "tolerance zone" in the proposed rule, but would like to see the tolerance zone larger in order to provide for greater safety standards for excavation near an underground pipeline facility, particularly for larger transmission systems. TxOGA wanted to reserve the right to request the tolerance zone be increased at a later time.
The Commission disagrees with this comment; the size of and the method for measuring a tolerance zone were issues that were thoroughly discussed in the workshops and resolved by consensus. At this time, the Commission prefers to move forward with adopting the national Best Practices. However, the Commission will be reviewing the information reported through the automated system and will certainly revisit this issue if it appears necessary. Finally, the Commission agrees that any interested person can petition the Commission to initiate a rulemaking.
OXY suggested an additional alternative for defining a tolerance zone: "as reasonably designated by the pipeline operator to allow for protection of large size pipes or as agreed to in a writing between the excavator and the operator." The Commission declines to add this to the definition of "tolerance zone," because it is not necessary. Under new §18.9(a)(8) (proposed as §18.9(a)(7)), an excavator and an operator would be able to designate the extent of the tolerance zone (provided that it is not less than half the nominal diameter of the underground pipeline plus a minimum of 18 inches on either side of the outside edge of the underground pipeline on a horizontal plane) and the type of excavation permitted within the tolerance zone as part of an optional agreement for managing an excavation site in the vicinity of an underground pipeline.
The Commission adopts a corrected definition of "tolerance zone" in new §18.2(21); instead of the word "width" in the proposed definition, the adopted rule substitutes the term "nominal diameter."
Devon commented on the definition of "TDRF" in new §18.2(22) that information on the Texas Damage Reporting Form should be readily available to operators and excavators so that everyone involved in a particular incident will have to the opportunity to view information reported. Additionally, it would be helpful if those involved in a particular incident could use this system to dispute any information they consider incorrect or incomplete.
The Commission notes that the information submitted using TDRF will be available on line for everyone to view before the September 1, 2007, effective date of the new rules in Chapter 18. An operator and an excavator can (and should) both file reports on the same incident, and both will be accepted. In addition, a member of the public or a government employee could also file reports through the TDRF system.
TxDOT suggested revising the definition for "underground pipeline" provided in §18.2(23) to include a definition of "intrastate pipeline." The Commission disagrees with this suggestion. The intrastate or interstate nature of a pipeline is irrelevant to whether a locate call needs to be made. The only significance of whether a pipeline is intrastate or interstate is whether the Railroad Commission has jurisdiction over its operator for purposes of the new rules in Chapter 18.
The provision in new §18.3, relating to excavator notice to notification center, garnered many comments. Atmos commented that the proposed rule inappropriately confers upon the excavator the latitude to determine the methodology for providing positive response. Simply stated, an intrastate pipeline operator cannot be expected to comply with varied positive response methodologies based upon the convenience or whim of the excavator. The rule needs to establish a standardized positive response protocol that an intrastate pipeline operator can build into its process and use consistently for each and every line locate. Atmos suggests that the standardized positive response approach should include either marking the facility, including an "all clear" designation if appropriate, or an electronic acknowledgment sent by the operator to the one call center that the excavator can access. As noted below, the time for positive response should not reduce the statutory time frame for actual marking of lines.
Proposed §18.3 also provides that if an excavation project is too large or too expansive for description on a line locate ticket, the operator and excavator must have a face-to-face meeting. It is unclear from the proposed rule whether the excavator can determine on his own that the project is too large or too expansive, whether an operator who receives a large marking request can determine that it is too large or too expansive, or whether the excavator and all potentially impacted intrastate pipeline operators must agree to a face-to-face meeting. The Commission should revise this portion of the proposed rule in order to clarify how the face-to-face meeting provision will work.
The Commission agrees in part with Atmos's first comment regarding limiting the manner in which a positive response is to be given to an excavator. This was a subject of lengthy discussions in the workshops, which showed that this issue demands both specificity and flexibility. The Commission makes no change in §18.3 and instead adopts new §18.2(17) with clarifying changes that allow a positive response to be given by markings left at an excavation site, fax, phone, e-mail, pager, or written correspondence.
The Commission disagrees with Atmos's second comment regarding the requirement to conduct a face-to-face meeting. The initial determination of whether an excavation project is "too large" to be described on a locate ticket would be made by an excavator. However, an operator always has an option to request such a meeting, as well as an option to use the provisions of new §18.9 to work with the excavator to jointly establish the protocols applicable to an excavation site in the vicinity of underground pipelines, based on the particular characteristics of each job. As the rule states, such protocols may designate the contact person or persons for each entity working at an excavation site; establish the required mode or modes of communication among all entities working at an excavation site, e.g., telephone or other electronic means or face-to-face meetings at prescribed times or intervals; provide the method for coordinating work activities among all entities working at an excavation site; provide for the ownership and/or possession of the locate ticket or tickets; declare which entity or entities must have the locate ticket or locate ticket number before beginning work; state the life of a locate ticket and the circumstances that require refreshing the locate ticket; designate the extent of the tolerance zone (provided that it is not less than 24 inches) and the type of excavation permitted within the tolerance zone; and provide for any other agreement with respect to excavation activities and/or marking requirements that will or will tend to ensure the proper and safe excavation in the vicinity of an underground pipeline.
SM&P commented that proposed new §18.3 does not provide enough detail and definition as to what are acceptable methods of positive response. This lack of definition allows too much discretion for an individual to designate method of positive response that is overly difficult to execute or inadequate. An example would be an excavator designating a site visit as the chosen method of positive response when the operator, due to geographic limitations, cannot provide coverage on site within the expiration time of the ticket. Further, as written, the rules do not delineate what responsibility the excavator will have to monitor its chosen method of positive response. The methodology of positive response should not be unilaterally decided upon by either party. SM&P would suggest that a standardized method of positive response be developed for all parties to follow. In addition, in today's world of electronic communications, it can often be the case that communication becomes difficult due to many factors including geographic wireless coverage gaps, over-taxed communication networks, and messaging limitations due individuals' personal communication habits. SM&P stated that an excavator should have a positive duty to fully monitor and receive response communications from an operator.
The Commission reiterates the response given with respect to Atmos's comments on new §18.3. The Commission adopts new §18.2(17) with clarifying changes that allow a positive response to be given by markings left at an excavation site, fax, phone, e-mail, pager, or written correspondence. The new rules impose an affirmative duty on both excavators and operators to communicate clearly and directly with each other.
CenterPoint commented that even though both the Texas One Call Law (Texas Utilities Code, Chapter 251) and the Commission's proposed rules require an excavator to identify the location of a proposed excavation by providing certain specific information, neither regulatory scheme currently imposes a limit on the size of the area that can be included in one ticket. In many cases, tickets are called in for areas that are so large that the ticket cannot be practically located within the 48 hour time limit. In other cases, the location information is not specific enough, though white-lining can clarify any ambiguity.
CenterPoint understands that the Texas One Call Board is considering a change to the technical standards for notification centers that would limit the size of the area that could be included on one ticket. This change could alleviate some of these hardships. The Commission's proposed rules recognize the need for even more definition in cases of large excavations by requiring that excavators and operators enter into protocols to further define the marking process for such projects (see §18.3 and §18.10). Those two rules should require that the protocols include a schedule of the contractor's work so that the operator may phase its marking work to match the progress of the excavation.
The Commission recognizes that the scope and size of a locate request is an issue that may be the subject of a future rulemaking, but must recognize that the Commission will have limited, if any, authority with respect to the way in which notification centers structure locate tickets. The workshop discussions did not yield a clear consensus on how to manage these issues. However, the rules provide a couple of methods for handling large projects. One is the face-to-face meeting requirement in §18.3(d); the other is the option provided in new §18.9 that would allow an excavator and an operator to jointly establish protocols for managing excavations sites, regardless of the size of the project.
CenterPoint also commented that the Texas One Call Law presently exempts emergency excavations from the 48-hour notice requirement otherwise required by the law (Texas Utilities Code, §251.155). The law, however, requires that the excavator responding to an emergency situation notify the notification center "as promptly as reasonably possible." In recognition of the need to rapidly respond to public emergencies, CenterPoint has traditionally given such calls priority in its locating system and tries to respond to them within four hours of receipt of the call. Unfortunately, some excavators attempt to avoid the 48-hour notice requirement by calling in excavations as emergencies that in fact do not qualify under the exemption. This abuse of the system overloads the locating resources of an operator and makes it more difficult to respond to locate requests by excavators who are complying with the intent of the statute. The Commission correctly recognizes the seriousness of this problem by creating a penalty for a false report of an emergency line locate request in item no. 2 of the penalty calculation worksheet. However, there is no corresponding text in proposed Chapter 18 prohibiting excavators from calling in a false emergency. CenterPoint thus recommended that a new subsection be added to new §18.3 that would implement the prohibition contemplated by the penalty schedule. To ensure that this obligation is harmonized with the Texas One Call Law, CenterPoint also suggested that the definition of an emergency in §18.2(3) be changed to match the corresponding definition in Texas Utilities Code, §251.155.
The Commission made the suggested change in the definition of "emergency" found in §18.2(3), but declines to add a new section to §18.3 at this time. The Commission has reconsidered its proposal to penalize the false reporting of an emergency locate request. The Commission has determined that, ultimately, it is within the purview of the Texas One Call Board to determine and enforce standards for emergency locate requests. The false emergency locate requests are clearly a resource issue for operators, but not of the same magnitude, in terms of safety, as failure to locate, failure to make a positive response, or failure to give notice of intent to excavate. The Commission has removed the penalty proposed in Table 1, line 2.
CoServ observed that the proposal details locate request procedures that cannot be easily explained on the request. It also requires that a copy of the locate ticket be at each excavation site or be provided within an hour of the request. The proposed rules also suggest that the positive response method be defined by the excavator. CoServ further commented that the proposal suggests all parties involved in a large project agree on protocols, such as ticket life and tolerance zone, but that there are too many parties involved with this type of locate request, making it difficult to agree on the protocols. CoServ suggested removing this language. Finally, CoServ agreed that it would like to have the locate request number on site, but did not think the rules should require that the actual ticket be on site. CoServ recalled that the Commission staff stated in a stakeholder meeting last year that the reason tickets should be on site is to prove the locate request was for the correct location. In CoServ's experience, most damages are not caused by incorrect ticket locations, and speculated that the Commission could be inundated with violations for not having the ticket on site. CoServ pointed out that CGA also recommends having the ticket number on site, not the actual ticket.
In response to CoServ's first comments, the Commission points out that the options for managing a construction site apply only to underground pipelines, which is the limit of the Commission's authority; therefore, the Commission declines to remove this language. With respect to CoServ's second comment, this matter was addressed in the third (and final) workshop, where the consensus was that prior to excavation, an excavator would be required to confirm that a copy of a valid locate ticket for the location was in the possession of the excavator's designated representative and could be obtained from the representative or could be provided within one hour of a request from the operator or the Commission. The designated representative may or may not be on site.
TxDOT commented that §18.3(a) through (d) place an unreasonable burden on TxDOT with regard to locating and marking each test site. As stated previously, this would require 382,000 calls annually. In addition, the scope of work of many of TxDOT's archeological excavations is sometimes unknown until the work begins, due to the inherent exploratory nature of the work. Locating and marking each test site in order to comply with the proposed rules will create tremendous time delays and cause TxDOT to have to issue new archeological service contracts, or modify existing ones, all of which will negatively affect contractors, TxDOT staff, and ultimately the letting of needed highway construction projects.
In particular, TxDOT commented with respect to §18.3(a) and (d) and §18.7 of the proposed rules (which require that when the locality cannot be clearly described on a locate ticket, excavators must either mark excavation sites with paint or flagging prior to making a locate request, or meet with operators (there may be more than one) to establish protocols) that the existing statute (Texas Utilities Code, Chapter 251) does not require such marking or meetings. Because work conducted by TxDOT archeology and its contractors occurs all over the state, because localities are not readily described in the address-based format of a utility locate ticket, and because local TxDOT personnel do not have the expertise to predict specific excavation loci, the requirement to mark locations of individual excavations would necessitate a minimum of one extra field visit for each project.
The Commission disagrees with this comment; the rules do not require an excavator to use white-lining if the project can be described on a locate ticket. The rule provides guidelines to follow if white-lining is necessary. In addition, the exemption created for TxDOT in §18.1 should greatly reduce the impact on TxDOT's operations.
TGA commented that the rules should include wording that an excavator shall not call in an emergency locate if there is not an emergency. Although this is specified in other codes and referenced in Table 1, adding the definition of an emergency would put the information in this rule and make it clear under what circumstances an emergency locate would be appropriate. The Commission has reconsidered its proposal to penalize the false reporting of an emergency locate request. The Commission has determined that, ultimately, it is within the purview of the Texas One Call Board to determine and enforce standards for emergency locate requests. The false emergency locate requests are clearly a resource issue for operators, but not of the same magnitude, in terms of safety, as failure to locate, failure to make a positive response, or failure to give notice of intent to excavate. The Commission has removed the penalty proposed in Table 1, line 2.
The Coalition reiterated its comment regarding the use of the word "planned" with respect to excavation projects; the Commission agreed with the comment and has removed the word "planned" in adopted §18.2(17) and §18.3(a) and (d).
CenterPoint suggested adopting a new subsection (b) and renumbering the following subsections accordingly. CenterPoint's recommended new language would read as follows: "An excavator shall notify a notification center or an operator of the existence of an emergency only when an emergency exists as defined in Section 18.2(3)". CenterPoint noted that this language would implement its recommendation that the rules prohibit falsely requesting an emergency locate to correspond to item no. 2 in the penalty schedule.
The Commission disagrees with this comment and declines to make the suggested change in the rule. The Commission has reconsidered its proposal to penalize the false reporting of an emergency locate request. The Commission has determined that, ultimately, it is within the purview of the Texas One Call Board to determine and enforce standards for emergency locate requests. The false emergency locate requests are clearly a resource issue for operators, but not of the same magnitude, in terms of safety, as failure to locate, failure to make a positive response, or failure to give notice of intent to excavate. The Commission has removed the penalty proposed in Table 1, line 2.
CoServ commented that "positive response" is not defined well in §18.3(b) as proposed. Under §18.3(b), an excavator must include in its notice how it would like to receive the positive response. This could result in unreasonable demands from excavators. The method should be defined as per CGA's Best Practices--documentation on the job site, callback, fax or automated response system. This would make the method uniform for all parties involved.
TGA commented that §18.3(b) should restate the means by which the positive response can be given. Although these means of positive response are covered in Texas Utilities Code, Chapter 251, the inclusion of the methods in this rule would clarify and facilitate determination of which means may be utilized to report said positive response.
OXY suggested that §18.3(b) be clarified as to how the excavator will receive an "all clear, no conflict" positive response. This would help clarify and be more consistent with 18.5. OXY is concerned with the excavator dictating the method in which he will receive a positive response. Methods should be specified to currently available and accepted methods while leaving the option open for approval of new methods should they be developed. Further, OXY recommended that an excavator who fails to provide working methods should be subject to penalties. For example, if a fax number is given but three documented efforts to send the fax have failed, the excavator would be in violation of the rule. The same should apply for an email that is non-deliverable or a telephone number that is not answered and there is no answering system.
The Coalition expressed concern with the manner in which operators will give the "positive response." Under §18.3(b) as proposed, pipeline operators will be required to give notification to an excavator confirming whether a pipeline facility is located near the area of excavation or whether the area is clear of an operator's facilities. As the rule is currently drafted, this notification is defined as "markings left at an excavation site, or other shared or transmitted information" in §18.2(17). In §18.3(b), excavators are required to include the method or methods by which the excavator receives the positive response. Furthermore, §18.5(a)(2) requires the pipeline operator to make the positive response in the manner in which the excavator specifies under §18.3(b).
The Coalition stated that while it is a strong supporter of positive response, it believed additional clarification is needed regarding the manner in which a positive response is to be given to an excavator. The proposed rule provided no parameters or limitations on the manner by which an operator may be required to provide a positive response. The Coalition respectfully requested that the definition of "positive response" in §18.2(17) (or another appropriate provision) be amended to include the words "by fax, telephone, e-mail, written correspondence or other methods approved by the Commission" in addition to the option of "markings left at an excavation site." The words "or other shared or transmitted information" could then be deleted. The Coalition argued that this will provide several viable and specific options for which excavators can receive and document positive response notifications. The change would also permit the Commission to approve of other methods given extenuating circumstances, or as new methods of communication become available.
TxOGA suggested that §18.3(b) be clarified as to how the excavator will receive an "all clear, no conflict" positive response. This would clarify and be more consistent with §18.5. Pipeline operators are concerned with the excavator dictating the method in which he will receive a positive response. Methods should be specified to currently available and accepted methods while leaving the option open for approval of new methods should they be developed. TxOGA suggested that positive response be limited to responding by telephone, fax, e-mail, or letter.
In response to the comments by CoServ, TGA, OXY, the Coalition, and TxOGA, the Commission notes that the manner of providing a positive response was the subject of lengthy discussions in the workshops. While there was no general consensus, the discussions did reveal that this issue demands both specificity and flexibility. To meet those requirements, the Commission adopts new §18.2(17) with clarifying changes. As adopted, the definition of "positive response" will mean markings left at an excavation site, fax, phone, e-mail, pager, or written correspondence. The phrase "other shared or transmitted information" has been deleted, and the phrase "other methods approved by the Commission" is not included to make it clear that only the specified methods may be used. The new rules impose an affirmative duty on both excavators and operators to communicate clearly and directly with each other.
TxDOT commented that even though §18.3(b) references a positive response requirement, there is no positive response provision in the current Texas One Call Rules (Texas Utilities Code, Chapter 251). The Commission disagrees with this comment; the Commission does not have authority to implement or administer Texas Utilities Code, Chapter 251. The Commission is, however, implementing and will administer its own, separate statutory authority pursuant to Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201 (as amended by House Bill 2161, Acts 2005, 79th Leg., R.S., ch. 267, §§6 and 13, eff. Sept. 1, 2005), and Texas Health and Safety Code, §756.106 (as added by Senate Bill 9, Acts 2005, 79th Leg., R. S., ch. 1337, §19, and editorially renumbered as Health and Safety Code, §756.126). The Commission is adopting the most significant national Best Practices in these rules, one of which is the requirement that pipeline operators make a positive response.
With respect to new §18.3(c), CenterPoint recommended deleting the
language of proposed subsection (c) and substituting the following:
"(A) (i) the street address, if available, or
"(ii) if there is no street address, an accurate
description of the excavation area using any available designations such as
the closest street, road or intersection, including GPS coordinates if available
or
"(iii) request a meeting with the underground
facility operator to establish a protocol under Subsection (d) of this rule;
and
"(B) the location of the excavation at the address
or excavation area by reference to structures, roads, easements, or other
known points of reference. In lieu of such a description, an excavator shall
indicate in the notice that it will white-line the excavation area in accordance
with this rule or will provide such a description at a meeting with the operator."
CenterPoint stated that this language was originally developed in the Texas
Common Ground effort and recognizes that an operator needs two sets of information
about the location of a proposed excavation. It first needs to know the general
street address or other general location of the excavation and then a more
specific description of the location of the excavation at the address or excavation
area. In many cases, it will not be necessary for an excavator to white-line
in order to adequately identify the location at an address. Current practice
allows an excavator to identify the excavation location by reference to an
easement, street, or other point of reference. Only when this information
is insufficient should the excavator be required to white-line. (A corresponding
change reflecting this policy was also proposed in CenterPoint's comments
on new §18.7.)
The Commission disagrees with this comment. The contents of locate tickets
are not within the authority of the Commission. The Texas One Call program
has guidelines for use by the notification centers, and the Commission has
determined that it would be counterproductive to adopt rules that are inconsistent
with practices that are fairly well established.
CenterPoint further commented that while both the Texas One Call Law (Texas
Utilities Code, Chapter 251) as well as the Commission's proposed rules require
an excavator to identify the location of a proposed excavation by providing
certain specific information, neither regulatory scheme currently imposes
a limit on the size of the area that can be included in one ticket. In many
cases, tickets are called in for areas that are so large that the ticket cannot
be practically located within the 48-hour time limit. In other cases, the
location information is not specific enough, though white-lining can clarify
any ambiguity.
CenterPoint understands that the Texas One Call Board is considering a
change to the technical standards for notification centers that would limit
the size of the area that could be included on one ticket. This change could
alleviate some of these hardships. The Commission's proposed rules recognize
the need for even more definition in cases of large excavations by requiring
that excavators and operators enter into protocols to further define the marking
process for such projects (proposed §18.3 and §18.10). Those two
rules should require that the protocols include a schedule of the contractor's
work so that the operator may phase its marking work to match the progress
of the excavation. CenterPoint suggested language implementing this requirement
in its comments to the proposed rules §18.3 and 18.10. The Commission
agrees with these suggestions and has implemented these changes in the adopted
rules.
With respect to §18.3(d), CenterPoint suggested inserting a new paragraph
(4) in subsection (d), to read as follows:
"the schedule
of work on the excavation and the chronological order in which applicable
locate tickets are to be marked."
The Commission agrees with this suggestion
and has made this change in the adopted language of the rule.
TxDOT recommended that alternate methods to a face-to-face meeting be allowed
since arranging face-to-face meetings in very rural areas would prove difficult.
Section 18.3(a) and (d) and §18.7 of the proposed rules require that
when the locality cannot be clearly described on a locate ticket, excavators
must either mark excavation sites with paint or flagging prior to making a
locate request, or meet with operators (there may be more than one) to establish
protocols. The existing statute (Texas Utilities Code, Chapter 251) does not
require such marking or meetings. Because work conducted by TxDOT archeology
and its contractors occurs all over the state, because localities are not
readily described in the address-based format of a utility locate ticket,
and because local TxDOT personnel do not have the expertise to predict specific
excavation loci, the requirement to mark locations of individual excavations
would necessitate a minimum of one extra field visit for each project.
The Commission disagrees with this suggestion, because it is unnecessary.
The provisions of new §18.9 would permit TxDOT and an operator to agree
on an alternative method for discussing the excavation activities and establishing
protocols. Also, the Commission has no authority to implement or administer
Texas Utilities Code, Chapter 251. The Commission is, however, implementing
and will administer its own, separate statutory authority, as previously stated.
Additionally, the exemptions adopted for specific TxDOT operations in new §18.1(d)
should mitigate any undue burden on TxDOT.
The Coalition also sought clarification with regard to a project described
as "too large" under §18.3(d). As it is currently written, the rule is
very ambiguous with regard to the characteristics of a project that is "too
large to mark using white-lining or is so extensive that a full description
cannot be provided on a line locate ticket." The Coalition requested that
a specific project size be outlined in the rule, and suggested that a project
be deemed "too large" if it exceeds one mile in length or width.
The Commission disagrees with the suggestion to specify a project size
as being "too large," because every project is different and it is likely
that some projects smaller than one mile in length or width would still be
impossible to describe clearly and completely on one locate ticket. The new
rules impose an affirmative duty on both excavators and operators to communicate
clearly and directly with each other, and if the excavator's project description
is ambiguous to the operator, the operator must seek clarification.
TxDOT objected to the requirement in new §18.3(e) and (f) that would
require the excavator to "refresh" the ticket every 14 days while excavation
is ongoing. The existing statute (as interpreted under Texas Attorney General
Opinion No. JC-0234) does not require "refreshing" the locate ticket every
14 days if excavation is ongoing. This new requirement will further increase
the cost of fulfilling TxDOT's archeological excavation duties.
The Commission disagrees with TxDOT's comment, because the Commission is
not implementing Texas Utilities Code, Chapter 251. Additionally, as adopted
with clarifying amendments, §18.3(e) will limit the request to refresh
to the area yet to be excavated, which the Commission views as consonant with
Texas Attorney General Opinion No. JC-0234. New §18.9(a)(6) permits an
excavator and operator to jointly agree on the life of a locate ticket and
the circumstances that require refreshing the locate ticket. Finally, the
exemption established for TxDOT's archeological duties should greatly reduce
if not eliminate any undue burden.
TGA commented that the request to refresh should be only for the area that
has not been excavated. The utilization of a refresh of the original locate
ticket information results in the locator performing not only duplicate locates
on areas already located, but also on areas already excavated and backfilled.
The relocation a pipeline in an area of completed excavation would have no
value in protecting the pipeline, unless the excavator plans to return to
this area. The recommended language is:
"A request
to refresh shall be limited to the area yet to be excavated."
The Coalition also suggested that in §18.3(e) the word "may" should
be changed to "shall." The justification for this is primarily cost, especially
for large projects. If an excavation project is partially complete after the
initial, or subsequent, intervals of 14 days, an operator should be required
to mark only the area where excavation has yet to occur. Some large projects
go on for months. If an operator has to needlessly re-mark all the areas of
the project, it has the potential of being costly in terms of employee time
and resources. Furthermore, re-marking only the area in which excavation will
still occur reduces the amount of confusion regarding the completed and non-completed
parts of the project. By requiring only the portion of the project that has
not been completed, it saves all stakeholders time, money and resources.
The Commission agrees with these comments and has adopted new §18.3(e)
with the suggested change in wording from "may" to "shall."
With respect to new §18.3(f), which would permit an excavator and
an operator to agree that the life of a line locate ticket is more than 14
days, provided that certain conditions are met, Air Products recommended that
the wording be changed to "14 working days." CoServ also commented that the
proposed rules define the ticket life as 14 working days; however, the rest
of the document says 14 days. Where each instance ticket life is mentioned
in the rules it should state 14 working days.
This will prevent confusion to all parties who must follow these rules.
The Commission disagrees with this suggestion; as adopted, the general
provision in §18.1(g) states that unless otherwise specified, all time
periods that are stated in days shall mean working days.
Marathon recommended deleting the option in §18.3(f) for extending
the ticket life. The ticket should be renewed or another ticket should be
required to extend the excavation activities. With a definite ticket life,
reminder systems can be employed to verify the project is complete or to note
that more monitoring necessary. In Marathon's view, a variable ticket life
makes project management much more difficult. The Commission declines to make
this change; if Marathon prefers a definite ticket life, then it can adopt
a company policy not to agree to extend the standard 14 working day period.
Regarding §18.3(g), which requires both the excavator and the operator
to retain a copy of any agreement made pursuant to §18.3(f) to extend
the life of a locate ticket, TxDOT recommended clarifying the length of the
period required to retain the agreement. The Commission declines to make this
change. The general provision in §18.1(i) requires a minimum of four
years for retention; however, other specific events, such as pending or ongoing
litigation, may compel a longer retention period. In addition, TxDOT's own
state agency records retention policy may govern the retention period for
such documents.
With respect to §18.4, CoServ suggested that excavators follow CGA's
Best Practices, which states "the route of the excavation is marked with white
paint, flags, stakes or a combination of these to outline the dig site prior
to notifying the one call center and before the locator arrives on the job
site." The Commission disagrees that this particular change needs to be made.
The new rules in Chapter 18 incorporate many of the Best Practices, but they
are found in separate rules because they are more detailed than in the Best
Practices. The Commission appreciates CoServ's commitment to following the
recommended Best Practices, and looks forward to continued collaboration with
CoServ as the Commission incorporates additional national Best Practices standards
into Chapter 18.
TxDOT commented that §18.4(a) through (f) place an unreasonable burden
on TxDOT with regard to confirming the location of a pipeline. While TxDOT
recognized that all pipeline locations are not known or mapped correctly,
this new set of procedures will significantly delay and restrict TxDOT's ability
to build and maintain highways. The Commission finds that the exemptions for
specified TxDOT activities adopted in §18.1(d) will, to a significant
degree, remove any undue burden on TxDOT that would otherwise have been imposed.
PHMSA commented that the obligations of the excavator to avoid damage to
underground pipelines contained in §18.4 appear to prohibit blind reliance
on the one call and marking processes. PHMSA expressly endorses the obligation
to observe site conditions and act accordingly. The Commission agrees with
PHMSA's comment.
Atmos commented regarding the requirement in §18.4(c) that a copy
of the locate ticket be on-site with the excavator or be available within
one hour. Atmos noted that for emergency locate requests, the requestor is
typically on site and will not have the ability to have a locate ticket printed
or receive a copy of the ticket electronically. While Atmos supports the requirement
for an excavator to have a copy of the locate ticket on-site, Atmos suggested
that for emergency locates, it is appropriate for the excavator to simply
have the assigned locate number available on-site. Because the proposed language
was the general consensus product of the workshop discussions, the Commission
disagrees with this comment and finds there is no need to make the suggested
change.
Gary W. Craig commented regarding the requirement that each excavator must
have a paper copy of each locate ticket on site. That currently is over two
million locate request pages. Mr. Craig believes the best practice would be
to require the excavator to have the locate number. The Commission disagrees
with this comment, because it appears to refer to an early draft version of §18.4(c).
In the proposed version published in the Texas Register
, there is an alternative method for complying, which is that the valid
locate ticket can be provided within one hour of a request from the operator
or the Commission.
TxDOT commented, regarding §18.4(c), that allowing only one hour to
produce a valid locate ticket is too short. If the locate tickets are kept
in a central office it may take longer to get the ticket to the operator.
For example, if the office is closed for lunch or after hours, it could be
impossible to produce a locate ticket within the proposed required one-hour
window. The Commission finds that the exemptions adopted in §18.1(d)
for the specified TxDOT activities will likely reduce or eliminate any undue
burden on TxDOT operations.
API and AOPL commented with respect to §18.4(d), which describes various
above-ground indications of an underground pipeline, that two additional indications
should be included: the presence of "fence posts" painted in colors typically
used to mark underground pipelines (predominantly orange and yellow), and
the presence of rectifier units, which are box-shaped devices, typically pole-mounted
on or near a pipeline right-of-way, used to provide cathodic protection to
most steel underground pipelines. Both such indications occur with regularity
along most underground pipeline rights-of-way and are readily observable.
CenterPoint suggested inserting the phrase "meter sets" after "above-ground
pipeline valves" in §18.4(d). This change points out that the presence
of a natural gas meter at a residence is sufficient notice to an excavator
of the presence of an operator line leading up to the meter that should be
marked.
The Coalition also wanted the Commission to amend §18.4(d) upon adoption.
During the public workshops and informal comment period, AGC of Texas addressed
how an excavator should check for unmarked pipelines prior to excavation.
A sentence was added to the proposed rule that identified several pipeline
apparatuses that can signify an underground pipeline is located in an area.
The Coalition agreed with the examples identified in the proposed rule, but
recommended that the list be prefaced with the condition that checking for
unmarked underground pipelines includes, but is not limited to
, looking for additional pipeline markers, aboveground pipeline
valves and regulator stations. This change would clarify that the identification
methods are not the only indications that a pipeline may be in the vicinity
of the excavation.
In response to API and AOPL, CenterPoint, and the Coalition, the Commission
notes that it did not intend for the items in §18.4(d) to be an exhaustive
list of above-ground indications of the presence of an underground pipeline,
only examples. The Commission agrees that these items suggested by CenterPoint
and API and AOPL are common indicators of the presence of an underground pipeline,
and has included them in the adopted rule. The Commission also agrees that
the condition suggested by the Coalition accurately conveys the Commission's
position that the list comprises examples only and is not a complete list
of the clues that might indicate the presence of an underground pipeline.
TxDOT recommended adding in §18.4(d) that the excavator shall make
a visual check. The Commission agrees that this adds a useful degree of specificity
to the provision, and has added the suggested wording.
Air Products suggested that §18.4(e) be amended to remove the prohibition
that an excavator not begin excavating until a second notice is given if any
of the conditions listed in paragraphs (1) through (4) obtain. Air Products
suggested that the provisions would simply read that it is considered good
practice for an excavator to make the second call in those situations. The
Commission disagrees with this comment. Paragraphs (1) through (4) describe
situations in which there is either conflicting or obviously erroneous information
about the presence of an underground pipeline. Thus, these would be clear
indications that it is not safe to begin excavation. The Commission makes
no change to this section based on Air Products' comment. Air Products also
suggested adding "or" after paragraphs (1) and (2) in subsection (e), which
the Commission considers unnecessary.
TxDOT recommended deleting §18.4(e)(3) because the operator should
make a positive response, and the excavator should not be held up because
the operator failed to perform. The Commission agrees that an operator should
make a positive response, but the Commission disagrees that this provision
should be removed. The waiting time on a second call is only four hours, which
the Commission considers to be minimal in the context of greater safety. Further,
the exemptions crafted for TxDOT operations should significantly reduce or
eliminate any undue burden on TxDOT.
Regarding §18.4(f), CenterPoint suggested rewording it to refer to
subsection (e) of §18.4, rather than to §18.3, and to add a requirement
that an excavator report an operator's failure to make a positive response
within four hours of a second call. The subsection would read as follows: "If an excavator has given a second notice in accordance
with subsection (e) of this section and there is no positive response within
four hours, the excavator may begin excavating. The excavator shall also report
that fact to the Commission through TDRF as set forth in §18.11 of this
title, relating to reporting requirements."
The Commission agrees with
this recommendation because it clarifies the procedure on the second call
requirement, and if an operator fails to respond, both should be reported.
However, the Commission finds that the more appropriate location for the clarification
regarding the reporting requirements is in new §18.5(c) and §18.11(c),
which are adopted with revised wording.
CoServ made comments about several rules regarding line markings, including
preservation and method. Regarding §18.4(g), which states that the excavator
must protect and preserve locate markings from start to finish of the project,
CoServ observed that line markings are destroyed during most excavations,
and asking an excavator to preserve the marking is not reasonable. The Commission
points out that these rules do contain many of the CGA Best Practices standards,
although they are arranged somewhat differently. However, the Commission must
point out that it is up to the operator (and its locator) to mark or re-mark
line locations, if that becomes necessary, with condition-appropriate materials.
The Commission agrees that it may indeed be necessary to re-mark every day
to meet the expected standard, which is a performance measure, not a "command-and-control"
directive.
Finally, the Commission adopts a new subsection (h) in new §18.4,
which incorporates comments made with respect to new §18.11, relating
to reporting requirements. The Commission intends for §18.11 to be the
guidance for how pipeline damage reports are made to the Commission; however,
many of the comments suggested that the Commission adopt a requirement that
an excavator that damages a pipeline should notify the pipeline before filing
a report with the Commission. The Commission agrees that it is prudent for
an excavator to take the appropriate steps in the event of a damage incident,
but finds that new §18.4, relating to excavator obligation to avoid damage
to underground pipelines, is also a good location for that requirement. As
adopted, new §18.11(b) and new subsection §18.4(h) require that
each excavator that damages an underground pipeline shall notify the operator
of the damage through the notification center immediately but not later than
two hours following the damage incident. New §18.4(h) also provides that
an excavator that damages an underground pipeline may not cover the exposed
pipeline without approval of the operator.
Atmos commented on §18.5(a), which provides that an operator should
provide positive response to an excavator within the time frames of Texas
Utilities Code, Chapter 251. Atmos commented that the positive response process
should not diminish the time in which an operator has to locate its facilities.
In other words, if an operator has 48 hours to mark its facilities under Texas
Utilities Code, Chapter 251, then §18.5 should not reduce that statutory
time frame by requiring that both the marking and the positive response occur
within that time frame. Atmos suggested that §18.5(a) be revised to require
positive response be provided within 3 hours following the expiration of the
time frames specified in Texas Utilities Code, Chapter 251.
The Commission disagrees. Both the positive response and the line location
marking should occur within the 48 hours allowed by Texas Utilities Code,
Chapter 251. Even if an operator needs the full 48 hours to locate and mark
the pipeline, it should not take another three hours to provide the positive
response notice back to the excavator.
TxDOT pointed out that there are no positive response requirements in the
Texas Utilities Code, Chapter 251. The Commission is not adopting these rules
pursuant to that statutory provision; imposing a requirement for a positive
response does not conflict with practices under Texas Utilities Code, Chapter
251.
Air Products commented that §18.5(b) should include the following
statement regarding retention of positive response records:
"This record may be in the form of an electronic record at the Notification
Center." The Commission disagrees with this comment and declines to
make the suggested change because the Commission has no authority to require
the notification centers to retain records of any kind.
CenterPoint recommended that §18.5(c) be deleted to be consistent
with CenterPoint's proposal that a report to the Commission should be required
only upon an operator's failure to respond to a second notice. The Commission
disagrees with this comment because the Commission wants reports of all failures
to give a positive response. The Commission has added the specific requirement
to report a second failure to give a positive response to §18.5(c) as
a clarifying change. The Commission has also made this clarifying change in §18.11(c).
TxDOT recommended revising the wording of §18.5(c) to read as follows:
"An excavator that experiences an operator failing
to provide a positive response to an excavator shall report that fact
to the Commission through TDRF as set forth in §18.11 of this title,
relating to Reporting Requirements." The Commission disagrees this changed
wording clarifies the provision, and has made no change.
CoServ criticized the requirement in §18.6 that markings should be
valid for 14 days because the provision does not state how this should be
accomplished. Weather and other outside conditions can change the validity
of the locates. CGA's Best Practices states "the excavator protects and preserves
the staking, marking or other designations for underground facilities until
not longer required for proper and safe excavation. The excavator stops excavating
and notifies the one-call center for re-marks if any facility mark is removed
or no longer visible."
The Commission points out that these rules do contain many of the CGA Best
Practices standards, although they are arranged somewhat differently. However,
the Commission must point out that it is up to the operator (and its locator)
to mark or re-mark (if that becomes necessary) line locations with condition-appropriate
materials. The Commission agrees that it may indeed be necessary to re-mark
every day to meet the expected standard, which is a performance measure, not
a "command-and-control" directive.
TxDOT recommended revising §18.6(b) so that it reads as follows: "If
a line locate ticket has been refreshed pursuant to §18.3(e) of this
title, relating to Excavator Notice to Notification Center, then the operator
shall either ensure that markings are still visible
or shall re-mark." The Commission agrees that this standard can be
made clearer, but has made a slightly different change to this subsection
than was suggested by TxDOT. Instead of substituting "visible" for the proposed
word "valid," the Commission has added the visibility requirement. The revised
wording reads: "If a line locate ticket has been refreshed pursuant to §18.3(e)
of this title, relating to Excavator Notice to Notification Center, then the
operator shall either ensure that markings are still
visible and valid or shall re-mark."
CenterPoint suggested amending §18.6(c) to change "is considered damaging
to" to "may permanently damage" because it provides a more objective standard
for determining when spot marking or other methods should be used in sensitive
areas. The Commission agrees with this suggestion and has adopted §18.6(c)
with this change.
TxDOT commented that §18.6(c) does not make clear who shall determine
that a line marking is damaging to property. The Commission agrees, but notes
that because the locator will be marking the pipeline locations, it is the
locator who will make the decision about how to mark. In most situations,
however, it is likely that the construction contractor would make any repairs
requested by the property owner or buyer. The Commission finds that the clarifying
change adopted in response to CenterPoint's comment does provide a more objective
standard for this requirement.
AGC of Texas expressed its belief that §18.7(a) does not mandate that
in all circumstances an excavator must mark the specific area of excavation
using white paint, flags, or stakes, but, rather, intends that "white-lining"
by an excavator be used only according to §18.3(c), "when an excavation
site cannot be clearly identified and described on a line locate ticket."
AGC commented that the intent of this requirement would be more clearly understood
if §18.7(a) were to read as follows:
"(a) Prior
to giving notice pursuant to 18.3 of this title, relating to Excavator Notice
to Notification Center, an excavator shall mark (if applicable according to
18.3 (c)) the specific excavation area using white paint, flags, or stakes,
whichever is most visible for the terrain."
Atmos observed that proposed §18.7 provides that prior to giving notice
of an intent to excavate, an excavator is to mark the area of intended excavation
with white paint, flags, or stakes, but on the other hand, proposed §18.3
provides that if an excavator can clearly identify the excavation site on
the locate ticket, no on-site marking is necessary. Atmos supports the §18.3
approach and suggested that §18.7 be revised to limit the white-lining
requirement to instances in which the proposed excavation area cannot be clearly
identified and described on a line locate ticket.
CenterPoint also suggested that §18.7(a) be amended to clarify the
situations in which white-lining must be used. The Commission agrees with
the comments of AGC of Texas, Atmos, and CenterPoint regarding the need to
clarify the way in which §18.3 works with §18.7, and has adopted §18.7(a)
with the clarifying language suggested by AGC of Texas.
TxDOT recommended revising the title of §18.7 to "Excavator Marking
Requirements if White-Lining is Used" since
not all notifications require "white-lining." Sections 18.3(a) and (d) and
18.7 of the proposed rules require that when the locality cannot be clearly
described on a locate ticket, excavators must either mark excavation sites
with paint or flagging prior to making a locate request, or meet with operators
(there may be more than one) to establish protocols. The existing statute
(Texas Utilities Code, Chapter 251) does not require such marking or meetings.
Because work conducted by TxDOT archeology and its contractors occurs all
over the state, because localities are not readily described in the address-based
format of a utility locate ticket, and because local TxDOT personnel do not
have the expertise to predict specific excavation loci, the requirement to
mark locations of individual excavations would necessitate a minimum of one
extra field visit for each project.
The Commission finds that adopting the new rules in Chapter 18, which are
adopted under statutory authority previously cited, does not conflict with
the existing provisions in Texas Utilities Code, Chapter 251. Further, the
exemptions adopted for specified TxDOT activities should reduce or eliminate
any undue burden on TxDOT.
Atmos noted that §18.8 provides in part that a locator needs to make
a reasonable effort to advise the excavator if the locator, while marking
the facility, discovers customer-owned underground piping. Atmos seeks clarification
on what constitutes a reasonable effort to advise the excavator. For example,
if a locate ticket is for a back yard and the gas meter is an alley set, then
customer-owned gas piping likely runs through the back yard. Atmos asked whether
a locator can simply leave a uniquely colored flag that the notes "possible
customer owned piping," or whether the locator must create an electronic positive
response noting "possible customer owned piping," or take other action. Atmos
stated that this obligation should be clarified by the Commission in the final
rule. In addition, Atmos noted that the proposed regulation is silent on the
method for providing an "all clear" on-site positive response. Atmos recommended
that language should be added in a new subsection indicating how an "all clear"
positive response should be provided by on-site markings.
The Commission points out that an operator will know how an excavator wants
to be notified of a positive response, pursuant to §18.3(b). In addition,
an operator and an excavator might recognize, with respect to a particular
project, that there is a high likelihood of discovering customer-owned underground
piping and establish protocols applicable to that excavation site. In particular,
the operator and excavator could agree on the mode or modes of communication
among the entities working at an excavation site, e.g., telephone or other
electronic means or face-to-face meetings at prescribed times or intervals.
The Commission expects that operators will use common sense and good judgment
regarding methods of communication with excavators, and declines to make changes
in §18.8.
CenterPoint suggested adding a sentence in §18.8(a) to read: "An underground pipeline shall be considered accurately
marked if the entire width of the pipeline is within the tolerance zone created
by the marks." CenterPoint commented that the additional language more
clearly defines when a line will be considered accurately marked. TGA commented
that §18.8(a) should include a definition of an accurate mark, and suggested
substantially the same wording that CenterPoint offered.
The Commission disagrees with these comments. The marks do not delineate
the tolerance zone. Marking identifies the approximate center line of an underground
pipeline. The Commission urges operators to establish good communication with
excavators and to use the provisions of new §18.9 to establish site-specific
protocols with respect to excavation activities and/or marking requirements
that will or will tend to ensure the proper and safe excavation in the vicinity
of an underground pipeline.
TxDOT restated its recommendation regarding vertical locations of underground
pipelines, and recommended revising §18.8(b) to read: "Locators shall
mark the approximate center line of an underground pipeline
including indicating a depth-of-cover. These marks shall be within the tolerance
zone
." The Commission disagrees with the recommendation to include
vertical locations at this time, because the technology is still emerging,
its use is not widespread, and the results are still too variable to be reliable.
AGC of Texas commented that the language in §18.8(c) leaves the excavator
exposed to the possibility of damaging an underground utility if the excavator
is not informed in some verifiable manner of the existence of a customer-owned
underground pipeline. AGC of Texas requested that, at a minimum, a locator
should be required to mark the pipeline. In addition, a definition of a "customer-owned
underground pipeline" would be beneficial. The Commission disagrees with these
comments, and notes that this issue was discussed extensively at the workshops;
none of the participants agreed with the more stringent standard recommended
by AGC of Texas. It is because customer-owned pipeline is not owned by the
operator that it cannot be marked by the locator, but it is prudent for the
operator to inform the excavator of the likelihood of its presence. The excavator
is certainly not limited to relying solely on an operator's suggestion as
to the existence of customer-owned pipeline; an excavator may certainly elect
to communicate directly with the customer to learn more information about
possible underground pipeline that is not part of the operator's facilities.
CenterPoint recommended inserting the following phrase at the end of §18.8(c): "but is not required to mark the customer owned line accurately."
This additional wording clarifies that the "reasonable effort" to
advise an excavator of the presence of a customer-owned line does not require
any marking of that line as contemplated under the rules. The Commission disagrees
that this additional wording is necessary. The only requirement in subsection
(c) is that the operator make a reasonable effort to inform the excavator
of the presence of customer-owned underground pipeline.
CoServ commented that subsection (c) does not address what the excavator
should do once it has knowledge of the presence of the line. Most builders
do not make owners aware of their obligation regarding their gas lines. CoServ
asserted that the excavator should be responsible for working with the owner
protecting this line. This should not be the responsibility of the locator
or utility. The gas is measured and does not fall under TxDOT or Commission
rules. The Commission reiterates that the only requirement in subsection (c)
is that the operator make a reasonable effort to inform the excavator of the
presence of customer-owned underground pipeline. The excavator is not limited
to relying solely on an operator's suggestion as to the existence of customer-owned
pipeline; an excavator may certainly elect to communicate directly with the
customer to learn more information about possible underground pipeline that
is not part of the operator's facilities.
TxDOT recommended providing a definition of "reasonable effort" in §18.8(c).
The Commission finds that this is not necessary at this point, and declines
to make a change to this subsection.
TxDOT commented, regarding §18.8(d), that the markings in question
should be known to the operator. The Commission is not clear what this comment
means and is unable to respond.
CoServ commented regarding the requirement in §18.8(e) that a locator
must mark the pipeline "by means of stakes, paint, flags or a combination
of two or more of these." CoServ commented that using a combination of two
markings would be difficult or impossible when marking concrete, and that
CGA's Best Practices suggests "one or any combination of the following: paint,
chalk, flags, stakes, brushes or offsets."
The Commission points out that §18.8(e) does not require the use of
two methods to mark a pipeline location. The rule requires use of either one
of the methods listed (stakes or paint or flags) or a combination of two or
more of them. If the locator is marking concrete, then it is likely that only
paint will work. The remainder of the text in this subsection makes it clear
that the choice of marking medium will depend on the terrain, site conditions,
and type and extent of the proposed excavation.
The Coalition suggested changes to §18.8(f), specifically with regard
to the required marking intervals. Under the proposed rule, an operator is
required to mark the location and direction of a pipeline using marks not
further than 20 feet apart. The Coalition suggested an alternative marking
structure that takes into account the location of excavation activities in
the vicinity of an existing underground pipeline. The Coalition requested
that a pipeline operator be required to mark the location of pipeline that
will be impacted by excavation activity that will cross a pipeline facility.
Under this alternative, for any excavation activity that parallels an existing
underground pipeline, the operator would be required, if feasible, to temporarily
mark the location and direction of an existing underground pipeline at 10
foot intervals if the excavation is 10 feet or less from the pipeline, or
at 50 foot intervals if the distance of the excavation is greater than 10
feet from the existing underground pipeline. The Coalition's suggested wording
reads as follows:
"(f) A locator shall mark at sufficient
intervals to indicate clearly the approximate horizontal location and direction
of the underground pipeline or pipelines. The distance between any two marks
indicating the same line shall not exceed 10 foot increments when excavation
will occur within 10 feet of a parallel underground pipeline. Markings shall
not exceed 50-foot increments for excavation occurring greater than 10 feet,
but not greater than 25 feet, parallel to the pipeline. A shorter distance
between marks may be necessary because of site conditions or directional changes
of the underground pipeline."
API and AOPL also commented with respect to §18.8(f), which prescribes
a maximum 20-foot distance between marks used to indicate the location of
an underground pipeline, and further providing that markings should be placed
at shorter intervals due to site conditions or directional changes in the
pipeline. Contrary to the comments of the Coalition, API and AOPL commented
that encroachments to a pipeline facility may yet occur even when an excavation
is more than 10 feet away from an underground pipeline. API and AOPL encouraged
the Commission to consider prescribing that the distance between marks be
proportional to the distance of an excavation from the underground pipeline
up to a maximum of 50 feet between marks for an excavation that is 50 or more
feet distant from the pipeline. In that manner, the closer an excavation is
to an underground pipeline, the more closely marks would be placed, out to
the 50-foot distance and beyond, at which point marks would, in most cases,
be no more than 50 feet apart. API and AOPL encouraged the Commission to retain
the general requirement of shorter distances between marks due to site conditions
other than distance and due to directional changes in the underground pipeline.
The Commission disagrees with the changes suggested by both the Coalition
and API and AOPL. This is a straightforward standard and easy to follow. An
operator and an excavator can use §18.9 to agree on a different marking
protocol.
TxDOT recommended revising §18.8(f) so that it would read: "A locator
shall mark at sufficient intervals to indicate clearly the approximate horizontal and vertical
location and direction of the underground
pipeline or pipelines." The Commission disagrees with the recommendation to
include vertical locations at this time, because the technology is still emerging,
its use is not widespread, and the results are still too variable to be reliable.
OXY commented on §18.8(g), which requires a designation of pipe size
when the pipe is greater than six inches, which OXY believes supports this
suggestion. The implied assumption is that the center line of the pipe is
marked. However, reality is that the probing, tagging, and associated marking
may actually be somewhere between the center line and the edge of the pipe.
Allowing for a reasonable designation by the pipeline operator should help
protect a pipeline with a diameter greater than 36 inches. OXY commented that
half the diameter plus 18 inches would only equal the diameter of the pipe
and be less than the diameter of a 40-inch pipe. OXY stated that this definition
appears to be in conflict with §18.9(a)(7) (adopted as §18.9(a)(8)),
which states that a tolerance zone cannot be less than 24 inches. Adding the
proposed language to the definition of "tolerance zone" (
"or as reasonably designated by the pipeline operator to allow for protection
of large size pipes or as agreed to in a writing between the excavator and
the operator"
) would clarify the tolerance zone under project agreements.
The Commission disagrees with the premise of this comment. The Commission
agrees that the marking requirement applies to the approximate center line
of the pipeline, and recognizes that the markings will fall somewhere between
the center and the edge of the pipeline. However, the reason for requiring
that markings of an underground pipeline greater than six inches in nominal
outside dimension must include the size in inches at every other mark is so
that the tolerance zone can be observed by the excavator during excavation,
because it is within the tolerance zone that the requirements of §18.10
come into play. The tolerance zone is not half the diameter of the pipe plus
18 inches, as OXY commented. The tolerance zone is half the diameter of the
pipeline plus a minimum of 18 inches on either side of the outside edge of
the underground pipeline on a horizontal plane.
The Commission does agree with OXY that the provision in §18.9(a)(8)
(which was proposed as §18.9(a)(7)) regarding a minimum tolerance zone
is inconsistent with the definition in §18.2(17). The Commission adopts §18.9(a)(8)
with the conforming clarifying change.
AGC of Texas requested that the following language to be added to §18.8
as a new subsection (j) to better define an improper locate.
"(j) If a pipeline is found to be outside of the tolerance zone, as established
from the marked location, then the operator is considered to have failed to
mark the pipeline properly and is subject to the appropriate penalty."
The
Commission disagrees that this additional language is needed at this time,
because the issue of whether an underground pipeline is properly located and/or
marked is likely to be the subject of an enforcement action.
SM&P commented that §18.9 fails to recognize that on many occasions
more than two parties may be involved in an excavation site and mutual agreement,
although desirable, may not be obtainable. The competing interests may not
have mutual interests in time lines and workforce availability. SM&P believes
this language should be removed from the Commission's proposed rules as it
risks potentially dangerous conflict between parties rather than promoting
cooperation and public safety. The Commission recognizes that the more entities
that are involved in any project, the more complicated it becomes to arrive
at agreements. However, the Commission disagrees that §18.9 should be
removed. The only participants in any excavation project that the Commission
has authority over are the pipeline operator and the excavator. It is only
to those two entities that the provisions of §18.9 pertain. Certainly,
operators and excavators must work with other entities, but this rule does
not apply to those others.
TxDOT commented, regarding §18.9(a)(4), that the reason for the requirement
to provide ownership is not clear. The Commission is making a distinction
between ownership of a locate ticket, which is typically the entity making
the call to the notification center, and possession of a locate ticket, which
could be any party, as they may elect. It is also possible that, on projects
where there is more than one excavator, the parties, by agreement, could provide
for only one excavator to make the call to the notification center. This,
in turn, would necessitate that there be some agreement regarding ownership
of that locate ticket. Again, this rule is only an option for participants
to manage an excavation project as efficiently as possible, given the myriad
variations that may be presented in excavation projects.
CenterPoint wanted to insert a new paragraph (7) in §18.9(a) and renumber
the following paragraphs accordingly. The new paragraph would read: "state the schedule of work on the excavation and, if applicable,
the chronological order in which applicable locate tickets are to be located."
The Commission agrees that this is a helpful addition, and has adopted §18.9(a) with the amended wording.
Air Products suggested amending §18.9(a)(7) (adopted as §18.9(a)(8))
to allow a tolerance zone to be defined by operator easement privileges. The
Commission disagrees with this suggestion; easements are not sufficiently
accurate to be used in defining a tolerance zone for excavation in the vicinity
of an underground pipeline.
Atmos commented with respect to §18.9(a)(7) (adopted as §18.9(a)(8))
that the minimum tolerance zone detailed in this section is 24 inches, without
specifying that that is on either side of the pipe, while "tolerance zone"
is defined in §18.2(17) as 18 inches on either side of the outside edge
of the pipe. Atmos submitted that to eliminate confusion, a consistent standard
should be used and proposed that the 18-inch parameter detailed in §18.2(17)
be used in §18.9(a)(7) (adopted as §18.9(a)(8)). The Commission
acknowledges the discrepancy, and has made the change in §18.9(a)(8)
as adopted.
CoServ commented regarding the requirement that when excavation is to take
place in a tolerance zone, reasonable excavation practices such as hand digging,
soft digging, vacuum excavation and pneumatic methods, or mechanical and technical
methods approved by the operator should be followed. The tolerance zone is
proposed to be defined as half the width of the underground pipeline plus
a minimum of 18 inches on either side of the outside edge of the underground
pipeline on a horizontal plane. CoServ commented that while reasonable excavation
practices within tolerance zones, as stated above, are appropriate for third-party
excavators, it may be impractical for operators and operator contractors exposing
their own pipes. The cost of excavation of CoServ pipe by CoServ's own crews
will increase significantly if CoServ is required to use hand digging or vacuum
methods. CoServ suggested that mechanical methods be left in as an approved
method for operator crews and operator contractors.
The Commission points out that in excavating in a tolerance zone, new §18.10(b)
does not mandate hand digging. The basic requirement of the rule is to use
"reasonable care." The rule lists some methods to consider, but does not limit
excavation within a tolerance zone to these methods. The rule also permits
other mechanical methods or other technical methods that may be developed
to be used with the approval of the underground pipeline operator. When CoServ
is excavating in the vicinity of its own pipelines, CoServ will be the entity
deciding which method to use.
AGC of Texas expressed its belief that the language in §18.10(b) is
not intended to require that the excavator secure the approval of the underground
pipeline operator when using mechanical methods that represent current standard
industry machinery or tools. AGC of Texas believes that §18.10 requires
that an excavator exercise reasonable care within the tolerance zone. The
language does include methods to consider, but is not intended to limit excavation
within the tolerance zone exclusively to these methods.
The Commission agrees in part and disagrees in part with the comments of
AGC of Texas. The Commission agrees that the standard set forth in §18.10
is that an excavator exercise reasonable care when excavating within a tolerance
zone. The Commission disagrees, however, with AGC's comment that an excavator
is not required to secure the approval of the operator when using mechanical
methods that represent current industry machinery or tools. The rule is intended
to require that an excavator secure the approval of the operator when using
a mechanical method other than vacuum extraction or pneumatic hand tools.
Other mechanical methods or other technical methods that may be developed
may be used only with the approval of the operator.
CenterPoint recommended amending the first sentence of §18.10(b) so
that it reads as follows: "When an excavation is to take place within the
specified tolerance zone, an excavator shall exercise such reasonable care
as may be necessary to prevent damage to (delete:
for the protection of) any underground pipeline in or near the excavation
area." In CenterPoint's view, this change clarifies that the purpose of the
reasonable care that an excavator must exercise when excavating in the tolerance
zone is to prevent damage to an underground pipeline. The suggested language
also has the effect of incorporating the definition of "damage" in §18.2.
The Commission agrees with CenterPoint's recommended change to §18.10(b)
and has adopted the rule with this clarifying language.
TxDOT recommended deleting "with the approval of the underground pipeline
operator," because the excavator should decide how to proceed. The Commission
disagrees with this comment. The Commission is moving toward a more standardized
use of the Best Practices, among which is increased and better communication
among the various entities involved in an excavation project.
Air Products proposed adding a subsection (c) to §18.10 to read as
follows:
"(c) The Operator may establish a larger
tolerance zone commensurate with easement operator privileges."
The
Commission disagrees with this recommendation regarding use of easements to
define a tolerance zone. If an operator wishes to establish a tolerance zone
larger than is prescribed in these new rules, that can be done with the agreement
of the excavator, pursuant to §18.9.
PHMSA commented regarding §18.11 that data collection and analysis
are essential to identifying trends in damage prevention and allocating resources
in response to those trends. Accordingly, PHMSA expressly endorsed the reporting
requirements set forth in §18.11. The Commission agrees with this comment.
With respect to §18.11(a), Air Products suggested limiting the damage
reports to those incidents
"exceeding $5000 or violations
of this rule resulting in near misses or dig rules"
caused by an excavator.
The Commission disagrees with this suggested limitation on reporting; the
Commission wants all reports so that staff will be able to evaluate the effectiveness
of these rules and whether changes may be needed to improve pipeline safety.
Equistar commented that it did not find any value in both the operator
and excavator having to submit formal reports to the Commission for the same
incident. Equistar believes that the rule changes are meant to hold the excavators
accountable for their performance. If this is true, then it would be better,
and more efficient, to require the excavator to submit a report to both the
Commission and the operator. Should the Commission see value in the report,
it could require the operator to file a response, no later than ten days following
receipt of an excavator's damage report to the Commission, with the operator's
analysis of the incident. The Commission disagrees with Equistar; the Commission
does find value in having the redundant reporting requirement. The Commission
staff will review, evaluate, and reconcile the information to compile more
comprehensive data about damage prevention.
TxOGA suggested making a clarifying addition to §18.11, relating to
reporting requirements, to include the discovery of damage: "An operator shall
submit the information to the Commission within 10 days of the incident or the discovery of damage
through TDRF. . ." TxOGA
encouraged the Commission to use penalty reviews and assessments in such a
manner to encourage reporting all minor damage to pipelines as these events
could ultimately lead to future catastrophic events. Pipeline operators want
to have excavators accept and support the proposed damage prevention rule
and related efforts by reporting all contact with a pipe without fear of punitive
fines.
WTG also recommended that the Commission require only operators to report
damages to their pipeline within ten days after discovering the damage. There
will be situations where damage will occur to an operator's pipeline and it
does not have actual knowledge of the incident at the time of the occurrence.
If the excavator does not immediately report the damages to the pipeline operator,
the pipeline operator will not be able to timely report to the Commission.
A "discovery" concept is more realistic in the industry and prevents an operator
from being exposed to potential violations and fines. WTG suggested modifying §18.11(a)
to read as follows: "(a) Each operator of an underground pipeline shall report
to the Commission all damages to its pipeline caused by an excavator. An operator
shall submit the information to the Commission within ten (10) days of obtaining actual knowledge of
the incident through
TDRF, which may be accessed at webapps.rrc.state.tx.us using its assigned
operator identification code."
CenterPoint also recommended changing the second sentence of §18.11(a)
to recognize that an operator may not be immediately aware of damage to its
facilities caused by an excavator, especially if the damage occurs only to
a pipeline's coating or tracer wire. This change would require reporting when
the operator has actual notice of the incident.
The Commission agrees with the comments of TxOGA, WTG, and CenterPoint
on this issue, and in particular with efforts to adopt policies that encourage
the ability for operators to take preventive action. As adopted, subsection
(a) of the rule incorporates the "discovery" standard, as well as a correction
to the URL published in the proposed rule. The correct URL for accessing the
TDRF is http://www.rrc.state.tx.us/formpr/index.html.
CoServ commented regarding the requirement to report to the Commission
all third-party damage within ten days via the Texas Damage Reporting Form.
The preamble stated prior year data showing a minimum of 1,000 reports of
pipeline damage and/or violations of safety rules. These appear to represent
only the incidents required to be reported to the Commission (under 16 Tex.
Admin. Code §8.210 and §8.301); the proposed regulations would require
reports on every incident. Texas Excavation
Safety System (TESS), one of three call centers in Texas, received more than
21,000 damage reports in 2006. Of that total, 3,600 were gas related, and
800 were unknown. CoServ concluded that under the proposed reporting rule,
these numbers would increase dramatically.
More specifically, CoServ focused on the definition of "damage" in §18.2(1)
as "including but not limited to defacing, scraping, displacement, penetration,
destruction, or partial or complete severance of an underground pipeline or
of any protective coating, housing, or other protective device of an underground
pipeline; weakening of structural or lateral support of an underground pipeline
that affects the integrity of the pipeline; or failure to properly replace
the backfill surrounding an underground pipeline." CoServ commented that not
all defacing and scraping affect the integrity of a pipeline. Manufacturers
have a tolerance that allows the pipe to effectively operate. CoServ suggested
adopting CGA's definition of damage as "any impact or exposure that results
in the need to repair an underground facility due to a weakening or the partial
or complete destruction of the facility, including, but not limited to, the
protective coating, lateral support, cathodic protection or the housing for
the line, device or facility." CoServ further asserted that "damage" such
as failure to properly backfill, scraping, and defacing will be impossible
to monitor and will increase operating costs without increasing safety. It
would require a utility representative on site anytime an excavator is digging
near gas facilities. This activity is reportable under the proposed rules,
and utilities can be penalized under §18.11 for failure to report damage.
CoServ also noted that under the proposed rules, damage must be reported
within ten days, but the rule does not specify the information required to
be reported. Certain information, such as repair costs, are usually not available
within ten days. Absent clarification, CoServ suggested a 30-day time line
for reporting damage.
The Commission points out that TESS receives all damage reports, not just
those for underground pipelines; the 1,000 reports that the Commission estimated
it would receive were for reports of all damage incidents, not just those
that are reportable under the current rules. In addition, the Commission anticipates
proposing amendments to the current reporting rules in 16 Tex. Admin. Code §§8.210
and 8.301 to make them consistent with the new rules in Chapter 18 and with
federal requirements. Further, the TDRF does not require reporting the damage
amount, and each report can be amended for up to 30 days following submission.
The Commission does want all reports of all damage to underground pipelines,
which is the reason for the particular definition of "damage" included in
these rules. The definition of "damage" in §18.2(1) is virtually identical
to the definition of that term found in Texas Utilities Code, §251.002(4).
With respect to §18.11, Atmos requested the opportunity to provide
comments on the damage reporting form once it is developed. Atmos noted, however,
that complete information on an event, including all cost information, will
rarely be available within ten days of an "incident," which is not a defined
term in this rule. Also, if an operator is not advised of an event involving
its pipeline, the operator will not be able to initiate, much less complete,
a report within ten days. For example, if coating damage or improper backfilling
by an excavator are reportable events, an operator will frequently not learn
of the event until sometime in the future when operational issues arise. Therefore,
Atmos submits that the proposed rule should be revised to provide that an
operator will begin initial reporting efforts related to an event within ten
days of learning of the event.
Additionally, several operators in the state have in place a policy that
if an excavator damages a facility coating and the excavator advises the operator
of that fact, that operator will repair the coating damage at no cost to the
excavator. This safety practice encourages proactive notification instead
of a potential undisclosed safety issue. Atmos submits that in such a circumstance,
no report should be submitted. Likewise, no penalty action should be taken
under §18.12 against an excavator who reports damage as required by proposed §18.11.
Further, it is unclear whether actions by an operator that inadvertently impact
its own facilities would require a report. Atmos would suggest that this issue
rarely arises and that the Commission should not require reporting.
The Commission points out that damage amounts are not required on the new
TDRF; the form matches the CGA's damage incident reporting tool ("DIRT"),
on which cost information is not required. The Commission has already made
clarifying changes in §18.11(a) to adopt a "discovery" standard for pipeline
reporting of damage. The primary use of this information is to assist the
Commission and the operators to develop better damage prevention techniques.
The Commission commends Atmos for its policies that encourage excavators to
promptly report damage to underground pipelines; however, failure to report
is not necessarily going to result in enforcement actions or penalties. The
Commission is aware that there are established working relationships between
excavators and operators, and agrees that the first priority is repair of
damaged pipelines.
Regarding new §18.11, TGA commented that because the operator is required
to report all damages to its pipelines caused by an excavator through the
TDRF system, the TDRF system should also include a means of reporting excavators
caught excavating on a pipeline without notifying a notification center. This
is addressed in Table 1, Line 3 as a specific line item, "failure to notify
notification center" for penalty purposes. The Commission disagrees with this
comment, because the TDRF is not primarily for enforcement of the Chapter
18 rules. TDRF is designed as a way to give the Commission more comprehensive
data regarding damage to underground pipelines and better ways to prevent
that damage. A violation such as a failure to notify a notification center
should be called in as a complaint or reported through the safety e-mail at
safety@rrc.state.tx.us.
Regarding §18.11(b), Marathon recommended inserting a requirement
that an excavator call "9-1-1" before notifying the operator if the damage
causes an imminent danger to life, property, or the environment. The Commission
agrees that it is important to notify the pipeline of damage and has incorporated
that requirement into new subsection (h) of §18.4 and amended wording
in §18.11(b). The necessary emergency response actions, however, are
not appropriately part of the new rules in Chapter 18. Presumably, excavators
will have trained their employees on the proper steps to take in the event
that a damage incident causes imminent danger to life, property, or the environment.
CenterPoint recommended amending §18.11(c) to read as follows: "Each
excavator that begins excavating after it fails to receive a positive response
to a second notice pursuant to §18.4(f) of this title, relating to Excavator
Obligation to Avoid Damage to Underground Pipelines shall report that fact
to the Commission through TDRF." This change is consistent with other of CenterPoint's
suggested changes regarding the reporting and penalty provisions of the new
rules. Also concerning §18.11(c), TxDOT recommended deleting "makes an
additional call to the notification center pursuant to §18.4(e) of this
title, relating to Excavator Obligation to Avoid Damage to Underground Pipelines,
because the excavator . . . "
The Commission disagrees with the suggestion to limit reports of operator
failure to respond to only the failure to respond to the second notice. The
Commission wants reports of both failures of an operator to respond in order
to capture more comprehensive data about the notification system and whether
changes are necessary to improve pipeline safety and has adopted clarifying
changes in both §18.5(c) and §18.11(c).
The Coalition suggested new text for §18.12, with proposed new §18.12
renumbered as §18.13. The new §18.12 would be entitled "Falsely
Reporting an Emergency," and the text would read as follows:
"No person shall falsely report an emergency to a one call notification center,
pipeline operator or locator in order to expedite the locating and/or marking
of pipelines."
The Commission disagrees with this recommendation. After
having reconsidered its proposal to penalize the false reporting of an emergency
locate request. The Commission has determined that, ultimately, it is within
the purview of the Texas One Call Board to determine and enforce standards
for emergency locate requests. The false emergency locate requests are clearly
a resource issue for operators, but not of the same magnitude, in terms of
safety, as failure to locate, failure to make a positive response, or failure
to give notice of intent to excavate. The Commission has removed the penalty
proposed in Table 1, line 2.
By far, the greatest number of comments on the proposed new rules in Chapter
18 concerned new §18.12, the penalty guidelines. In general, operators
expressed fear of being subject to exorbitant fines, as well as concern that
the penalty provisions would create a disincentive to report pipeline damage
incidents.
PHMSA's comments expressed strong support the Commission's proposal to
adopt an enforcement system that requires all persons to comply with the rules,
including State and local government entities that engage in excavation activities.
The Commission's approach is consistent with CGA Best Practices and with the
new civil penalty provisions of federal law, which apply to any person who
engages in excavation activity.
PHMSA also commented that the fiscal note (including the additional personnel)
appears realistic in view of the uncertainty associated with predicting the
number of complaints and/or violations that will have to be investigated under
the proposed rules. PHMSA noted that the recently adopted PIPES Act authorizes
increased Federal funding of State pipeline safety programs, including a new
grant program intended to encourage the development and enforcement of effective
State programs for preventing construction-related damage.
In PHMSA's opinion, experience has taught that consistent imposition of
civil penalties for failure to use one call systems is a key element of an
effective damage prevention program. For that reason, PHMSA views the penalty
guidelines set forth in proposed §18.12 as particularly commendable.
While the amounts may be adjusted based on comments or experience, the overall
concept of establishing guidelines but allowing the Commission the discretion
to assess penalties based on the facts of each situation, has been proven
effective in other States. PHMSA noted in particular the ability to impose
penalties administratively (at the agency level) without the transaction costs
and delays associated with the more traditional system of involving district
attorneys and prosecutors. The Commission appreciates PHMSA's support of the
rules as proposed and agrees with PHMSA's comments.
CenterPoint stated that the new rules would create a comprehensive regulatory
scheme governing the process of notifying pipeline operators of intended excavations
and insuring that those excavations are properly marked or the excavator is
aware that no marking is required. They would first impose an obligation on
excavators to utilize the Texas one call system to notify an operator of an
intended excavation so it can positively respond to the notice as defined
in the rules. However, CenterPoint commented, the rules correctly recognize
that the excavator's responsibility to call does not end after its first call
to a notification center. If an operator has not been able to positively respond
within 48 hours, the excavator has an obligation to make a second call to
the operator. The operator then must respond to this second call within four
(4) hours. Only when the operator fails to respond to the second call may
the excavator commence digging (see proposed new §18.3(e) and (f)).
CenterPoint commented that this regulatory scheme will have failed to achieve
its goals in two instances: when an operator fails to respond to a second
call and when damage to an underground pipeline occurs because of an excavation.
CenterPoint believed that the reporting and enforcement mechanisms of the
rule should focus on reducing these two risks. In order to accomplish this
objective, CenterPoint suggested that excavators should be required to notify
the Commission of the failure of an operator to positively response to a second
notice rather than a first notice. This violation should carry the $2,500
fine presently assigned to a failure to respond to a first notice in item
no. 11 of the penalty schedule. This would not prevent the Commission from
penalizing the failure to respond to first notices, but would help the Commission
concentrate its resources on those violations that clearly create the most
immediate danger to underground pipelines. It would also reduce duplicative
reporting to the Commission. Under the current reporting mechanism, the Commission
could receive as many as four reports for every instance of damage, thus multiplying
its administrative burden.
The Commission reiterates that it wants reports of all failures to comply,
including failures to provide a positive response to both a first notice and
a second notice, and has made clarifying changes in the adopted rules as explained
in previous paragraphs.
WTG commented that while the language of §18.12(a) is good, it is
concerned that this subsection concedes the fact that some fine will be accessed
in all situations. WTG is concerned that the amount of fines, while enhancing
the coffers of the State of Texas general fund and ultimately benefitting
the Commission's through its budget process may be sending the wrong signal
to excavators and pipeline operators. A new rule takes time to be understood
and followed. The assessment of fines immediately will encourage non-reporting
and non-compliance. WTG recommended that no fines be assessed for the first
year to give everyone a reasonable opportunity to be in compliance. In the
alternative, WTG favored a permitting process for excavators instead of assessing
fines. WTG also liked eliminating the word "penalty" altogether and substituting
"fee" throughout the rule. In WTG's view, the rule as written has a criminal
aspect to it that is unwarranted. If the State of Texas needs money, WTG commented
that it should be called a fee and not make everyone out to be criminals.
The Commission disagrees with WTG's assertion that a fine will be assessed
for every violation. Subsection (e) clearly states that depending upon the
nature of and the consequences resulting from a violation of this chapter,
the Commission may impose a non-monetary penalty, such as requiring attendance
at a safety training course, or may issue a warning. Further, the Commission
has discretion to impose a penalty, monetary or otherwise, or not. The goal
of the Commission is not to enhance the coffers of the State and benefit the
Commission in its budget process; the very nature of penalties means that
they are an uncertain method of financing any on-going program. If the Commission
achieves its goal of increasing compliance every year, there will be few or
no fines assessed, certainly not in amounts sufficient to fund the safety
programs. The Commission agrees that sometimes a new rule takes time to be
understood and followed, but the Commission disagrees that it will take time
for these new rules to be understood and followed, because excavators and
pipelines have been required to use the One Call system since 1999. The Commission
disagrees with WTG's recommendation that no fines be assessed for the first
year to give everyone a reasonable opportunity to be in compliance, because
the Texas One Call system has been in place for nearly ten years and because
the statutory authority under which the new rules in Chapter 18 are being
adopted became effective nearly two years ago. The Commission disagrees with
WTG's suggestion that there be a permitting process for excavators instead
of assessing fines, because the Commission does not have statutory authority
to issue permits to excavators. Further, the issuance of a permit is no guarantee
that the permit holder will comply with the rules, just as the penalty system
does not offer any such guarantee. The Commission disagrees with WTG's suggestion
the word "penalty" be replaced with the word "fee" because the Commission
has authority under Texas Natural Resources Code, §81.0531, and Texas
Utilities Code, §121.206, to assess a civil penalty for violations of
statutes and rules pertaining to safety, not to impose a fee. The Commission
disagrees that the rule "makes everyone out to be a criminal." The penalties
are civil, not criminal. The Commission intends to focus its efforts on compliance
but recognizes that there is some deterrent effect to being able to impose
monetary penalties for violations.
SM&P commented that due to the number of locate tickets for which operators
will be required to respond, the penalties proposed by the Commission are
punitive in nature and will risk compromising the integrity of the utility
locate system. In 2006 TESS received 1,891,277 locate requests resulting in
9,498,579 locate tickets. SM&P believed that the suggested rules and the
fines associated with them will have an undesirable destabilizing effect on
the safety and effectiveness of utility locating. In SM&P's view, the
Commission's proposed definition of persons would be unduly burdensome to
larger operators and locating companies who would have a disproportionate
amount of tickets compared to others over the course of a year. SM&P believed
that the fines listed in the Penalty Calculation Worksheet should be removed
from the proposed rule changes. In the alternative SM&P believed it would
be better to suspend the fines and their enhancements for two years after
the rules take effect to allow time for all stakeholders to educate, train
and develop effective processes as needed.
The Commission agrees that the penalty amounts are punitive; that is their
purpose. The Commission disagrees that monetary penalties risk compromising
the integrity of the utility locate system or will have a destabilizing effect
on the safety and effectiveness of utility locating. The Commission recognizes
that an entity that works a large number of locate tickets would have a higher
likelihood of violating a rule and potentially being subject to a penalty.
However, an entity of any size could violate the rules in a way that results
in injury or death. Further, in §18.12(b)(6), the Commission has added
as factors the Commission may consider the number of locate requests received
and responded to by an operator and the number of location notifications given
by an excavator in the previous year.
Texas Natural Resources Code, §81.0531, and Texas Utilities Code, §121.206,
require the Commission by rule to adopt guidelines to be used in determining
the amount of the penalty for a violation that relates to pipeline safety.
The guidelines are required to include a penalty calculation worksheet that
specifies the typical penalty for certain violations, circumstances justifying
enhancement of a penalty and the amount of the enhancement, and circumstances
justifying a reduction in a penalty and the amount of the reduction. By statute,
the guidelines must take into account the permittee's history of previous
violations, including the number of previous violations; the seriousness of
the violation and of any pollution resulting from the violation; any hazard
to the health or safety of the public; the degree of culpability; the demonstrated
good faith of the person charged; and any other factor the Commission considers
relevant.
Finally, the Commission points out that the State of Texas leads the nation
in the number of hits per miles of pipeline. The standard federal penalties
are much higher--on the order of $25,000 per violation, up to $100,000 per
day. The Commission expects that the penalty provision will focus the attention
of those who are required to comply with the rules, and declines to remove
the penalty provision from the rules.
CoServ commented that CGA recently revealed that the overwhelming majority
of accidents are the result of unsafe practices by excavators, but that under
proposed new §18.12, the suggested penalties would hit utilities harder.
Utilities must respond to a far greater number of locate ticket requests than
excavators. In 2006, TESS received 1,891,277 locate requests resulting in
9,498,579 locate tickets. According to TESS, the top excavator who called
for locates made 69,514 requests in 2006. CoServ recommended that the Commission
take the following actions:
1. Suspend the penalty enhancements for the first two years the rules are
in effect. This would provide all stakeholders an education and training period
so that appropriate and reliable processes can be developed, implemented,
tested and, as necessary, refined.
2. Make the penalty enhancements proportional to the number of locate requests.
Gas utilities receive locate tickets from hundreds of different excavators,
which results in a far greater number of locate tickets than notifications
issued by an individual excavator. As written, the enhancement provision would
result in far greater fines against operators, when the evidence clearly shows
that third-party excavators are the principal cause of damage. Enhancements
of the penalties could be based upon a percentage or some other means that
would recognize the enormous disparity in ticket volumes.
3. Ensure that the rules follow CGA Best Practices, which suggest ideal
characteristics for enforcement authorities to ensure that all claims of damages
are investigated without bias or the perception of bias. It also suggests
that stakeholders be involved in periodic reviews of the damage prevention
program.
4. Provide for an appeals mechanism in the penalty provisions, such as
those in place in Virginia. The state has an advisory committee, made up of
stakeholders, that has partnered with its state utility regulatory agency.
The advisory committee hears cases sent by the state authority after it investigates
the claims. The advisory committee sees the evidence and listens to testimony
by all parties involved and renders a decision. CGA discusses this program
in its Best Practices.
5. Restructure the proposed penalty structure to allow a utility to work
with responsible excavators who call for locates and who report damage when
it occurs. Many contractors are unlikely to report damage if they know they
will be fined. Instead of reporting all incidents directly to Commission,
the following reporting structure should be adopted:
a. Excavators must report all "damage"--as defined by CGA--to the utility
or a call center. If reported to a call center, the call center notifies the
utility.
b. Utilities must report all damage as required by 49 CFR Part 191 to the
Commission; utilities should have discretion about whether to report damage
that does not fall under this requirement.
c. Excavators will not be fined if they damage a line while following the
rules and report the damage to the utility or a call center.
d. The most dangerous situation involves an excavator who cuts a line and
does not report the damage or covers up the damage. CoServ suggested a $5,000
fine for excavators that fail to report damage described in "a" above.
6. Drop the "Failure to comply with Chapter 18" penalty. Excavators and
utilities will be penalized in other ways due to the proposed system. There
is no need for this penalty under the proposed rules.
7. Make the fines for failure to make a positive response ($2,500) and
failure to notify a call center of plans to excavate ($1,000) the same amount.
The Commission disagrees with CoServ's recommendation to suspend the penalty
enhancements for the first two years the rules are in effect. The Commission
points out that the One Call program has been in place since 1999, which means
that excavators and operators have had nearly ten years to become educated
on the need to locate underground facilities before excavating and the procedures
for giving notice through the notification centers. The Commission disagrees
with suggestions that would have the effect of further delaying implementation
of appropriate and reliable pipeline safety procedures that have been in place
in other states.
The Commission disagrees that penalty enhancements necessarily should be
proportional to the number of locate requests. Just because gas utilities
receive locate tickets from hundreds of different excavators which may result
in a far greater number of locate tickets than notifications issued by an
individual excavator doesn't mean that rates of compliance will be lower.
The Commission recognizes that an entity that works a large number of locate
tickets would have a higher likelihood of violating a rule and potentially
being subject to a penalty. However, an entity of any size could violate the
rules in a way that results in injury or death. In §18.12(b)(6), the
Commission has added as factors the Commission may consider the number of
locate requests received and responded to by an operator and the number of
location notifications given by an excavator in the previous year.
The Commission disagrees that as written, the enhancement provision would
necessarily result in far greater fines against operators. The Commission
also disagrees that enhancements of the penalties necessarily should be based
upon a percentage or some other means that would recognize the enormous disparity
in ticket volumes. The Commission has discretion to impose a non-monetary
penalty, such as requiring attendance at a safety training course, or to issue
a warning. Further, the Commission has full discretion to impose a penalty,
monetary or otherwise, or not.
The Commission disagrees with CoServ's recommendation that the rules should
follow CGA Best Practices regarding ideal characteristics for enforcement
authorities to ensure that all claims of damages are investigated without
bias or the perception of bias, because it is unnecessary. The Commission
already has in place procedures and practices for investigating incidents
and accidents, and for bringing enforcement actions, if necessary. There is
also no barrier to stakeholders offering their views regarding the damage
prevention program, and no prohibition on any interested person filing a petition
for rulemaking to change the rules.
The Commission disagrees with CoServ's comment that the penalty provisions
should also provide an appeals mechanism, because it is unnecessary. The penalty
provisions in new §18.12 apply in enforcement proceedings, in which the
due process standards of the Administrative Procedure Act and the Commission's
rules apply. There is no statutory authority under which the Commission could
delegate to an industry advisory committee the authority to preside over enforcement
cases.
The Commission disagrees that the proposed penalty structure does not allow
a utility to work with responsible excavators who call for locates and who
report damage when it occurs. The Commission specifically disagrees with the
premise of CoServ's comments that fines will always be imposed. As stated
in previous paragraphs, the Commission has discretion to impose a penalty,
monetary or otherwise, or not, or to take into account the listed factors
in determining the amount of any monetary penalty.
The Commission disagrees in part with CoServ's recommendation that excavators
must report all "damage," as defined by CGA, to the utility or a call center.
If reported to a call center, the call center notifies the utility. The Commission
adopts new §18.4(h) and 18.11(b) with clarifying language that specifies
reporting of pipeline damage to the operator through the notification centers.
The Commission defines "damage" in new §18.2(1). The Commission also
disagrees with CoServ's recommendation that utilities must report all damage
as required by 49 CFR Part 191 to the Commission, and that utilities should
have discretion about whether to report damage that does not fall under this
requirement, because the requirements of Chapter 18 apply to more pipelines
than only utilities. Further, the Commission wants reports of all pipeline
damage in order to compile comprehensive data regarding damage incidents and
the effectiveness of the Commission's new rules in Chapter 18.
The Commission disagrees with CoServ's suggestion that excavators not be
fined if they damage a line while following the rules and report the damage
to the utility or a call center; however, the Commission points out that such
an event might or might not be the subject of an enforcement action, and that
even if it is, the fact that the excavator followed the rules and reported
the damage would be considered under "demonstrated good faith," and there
might not be a monetary penalty associated with it.
In response to and agreement with other comments, the Commission has made
all recommended penalty amounts $1,000. The Commission agrees that it is important
not to create disincentives to excavator reporting of pipeline damage.
The Commission disagrees with CoServ's suggestion to drop the "failure
to comply with Chapter 18" penalty. This provision is a restatement of the
Commission's authority to bring an enforcement action for any violation of
the Chapter 18 rules, not just the specific conduct listed in Table 1.
TxDOT commented with respect to §18.12(a) that it is not clear that
fines can be assessed in the manner described. The Commission disagrees with
the comment. Texas Natural Resources Code, §81.0531, and Texas Utilities
Code, §121.206, require the Commission to adopt by rule guidelines to
be used in determining the amount of the penalty for a violation that relates
to pipeline safety. The guidelines are required to include a penalty calculation
worksheet that specifies the typical penalty for certain violations, circumstances
justifying enhancement of a penalty and the amount of the enhancement, and
circumstances justifying a reduction in a penalty and the amount of the reduction.
The guidelines must take into account the permittee's history of previous
violations, including the number of previous violations; the seriousness of
the violation and of any pollution resulting from the violation; any hazard
to the health or safety of the public; the degree of culpability; the demonstrated
good faith of the person charged; and any other factor the Commission considers
relevant.
Devon Energy commented that the goal of Chapter 18 is to protect the public
by reducing damage to underground pipelines. The proposed rule includes a
series of penalties for violations of Chapter 18 as a means of reaching this
goal. Devon agreed that operators and excavators who do not comply with Chapter
18 should be subject to financial penalties.
Devon's first concern was that the penalties, as presently structured,
may be a disincentive to report damage to underground pipelines. Devon noted
that there is a proposed penalty for "failure to report damage by third-party,"
however, there is no specific penalty for an excavator failing to report damage.
Item 1 in Table 1 (failure to comply with Chapter 18) is generic enough to
cover any violation of Chapter 18, but in Devon's view, excavator self-reporting
is important enough to warrant a listed violation. No operator can monitor
all of its underground facilities 100 percent of the time. Operators, must
to some extent, depend on excavators to report damage. When an operator knows
about damage, the operator will repair it and prevent any further threat to
public safety. Unreported damage can become a threat to the public months
or years after the initial incident. Devon recommended that excavators be
required to report damage to a pipeline immediately to Texas One Call. "Immediately"
should be interpreted as two hours or less. Texas One Call would then treat
the call as it does emergency locate requests. Operators would have up to
4 hours to respond to the "damage" ticket. Furthermore, Devon suggested, the
excavator should not be permitted to cover the exposed pipeline without approval
of the operator.
Devon recommended that failure to report damage to a pipeline be subject
to a penalty. Because failure to report could create a threat to the public
at some unknown time in the future and because it undermines the entire damage
prevention process, in Devon's view it should be subject to severe penalties.
It could be argued that determining if someone did not self-report may be
difficult. However, Devon maintained that failure to report is too important
to be ignored, and that Chapter 18 allows any third-party to make reports,
which should encourage self-reporting.
Devon further commented that penalties need to be carefully structured
to enhance the goal of Chapter 18. The question should be asked: "besides
failure to self report, what violations pose the greatest potential threat
to public safety?" Two tiers of violations should be developed. Tier I violations
would represent those behaviors that have the greatest potential impact on
public safety. Tier II violations would include those that involve a failure
to comply with Chapter 18 but have less potential impact on public safety.
The Tiered Violation approach provides other opportunities to promote damage
prevention. First, the penalties should be weighted so that Tier I violations
would incur the largest fines. Tier II penalties would be less punitive and
aimed more at educating excavators and operators on successful damage prevention
techniques, for example, the proper use of white-lining.
Devon continued that the failure of an excavator to report damage immediately
to Texas One Call should be a Tier I violation, because the operator needs
to know about the damage so that it can effect repairs. The failure of an
excavator to report damage via the Texas Damage Prevention Form does not pose
a potential threat to the public, so it should be a Tier II violation.
In Devon's proposal, Tier II Violations could be structured so an excavator
or operator who improves its damage prevention program will be given "credit"
for its efforts. To measure improvement, Devon suggested calculating a compliance
rate on the most recent complete calendar year. Devon's position is that rates
of compliance, rather than a simple count of violations, are needed to fairly
reflect an excavator's or operator's efforts for improvement. Some excavators
and operators handle hundreds of One Call locates or locate requests per day
while others may be involved in only a few dozen each calendar year.
Devon found the proposed structure of recommended penalties to be biased
against excavators and operators that handle large volumes of One Call tickets.
As an example, Devon posited two operators, A and B, who both had 50 identical violations in a calendar year. Operator
A
handles 100,000 locate requests
per year for a compliance rate of 99.95 percent, but Operator
B
handles 1000 locate requests per year for a compliance rate of 95
percent. Clearly Operator
A
has a better damage prevention program than Operator
B
but each
would be subjected to the same penalties. Item 25 of Table 1 does provide
for a "reduction for demonstrated good faith of person charged" but by using
compliance rates, Devon argued, "good faith" could be quantified.
For the Tier II compliance rates to work, Devon commented, violations must
have a specified life span. As proposed, Chapter 18 does not specify how long
a violation can effect the penalty enhancements in Table 1. Devon suggested
a one-year life span for Tier II violations and a three-year life span for
Tier I violations, because of their potential to impact public safety. Tier
I violations could be calculated into the compliance rate but they would have
to be weighed to reflect their severity over Tier II violations. Devon concluded
that it would be simpler to omit them from the compliance rate calculation
at this time and calculate rates only for excavators with Tier II violations.
Devon's comments continued that besides quantifying "good faith," the Tier
II scheme affords an opportunity to set goals for improvement to Texas' damage
prevention efforts. A compliance percentage could be determined as needed
for an operator or excavator by the following formula:
Rate = (1 - (number of Chapter 18 violations)/(number
of ticket requests made and/or tickets received))*100
The Commission could then establish goals in coming years to improve the
rate by a specified amount. Excavators and operators who meet the goals would
be eligible for penalty reductions.
At this point, Devon conceded, there are insufficient data to determine
existing compliance rates. If this rule is implemented in September of 2007,
Devon suggested that all operators and excavators be assumed to a have compliance
rates that meet the Commission's goal for the remainder of 2007. Data collected
during that period could be used to determine a rate for 2007 that would be
used to set goals for 2008. In the penalty structure as proposed, Operators A and
B
would be
subject to penalty enhancements of five times the penalty amount because they
each had more than 10 violations. In Devon's proposal, all operators and excavators
are assumed to be in compliance with the established damage prevention goals
for the remainder of 2007 and would be eligible for penalty reductions.
Devon suggested that this time period could be used to educate all affected
parties on how this rule will work. In particular, excavators and operators
could be shown that when they meet Commission compliance goals their penalties
are reduced by "x" amount. Also it would be made clear that there are no reductions
for Tier I violations.
Devon made additional suggestions with respect to the proposed penalty
provisions. Devon recommended that all penalty amounts for violations listed
on lines 1 through 16 of the table be $500. These would be the Tier II violations.
Enhancements would be Tier I violations, and would carry monetary penalties
of $5000 to $25000.
Devon also commented that the recommended penalties shown on Proposed Table
1 showed that the penalty for "pipeline operator did not provide positive
response" was higher than other penalties, while the penalty for "excavator
failed to protect locate markings" was lower than other penalties. Devon saw
no justification for these differences. Devon recommended a penalty amount
of $500 rather than $1000 because the reason for Tier II penalties is more
educational than punitive.
Devon suggested a qualifying condition, "other than listed conduct," to
the penalty listed on line 1, so that it would not cause an additional penalty
to be added to every incident.
Devon recommended a reduction of 25-75 percent for meeting the compliance
rate as Line 18. The range of 25-75 percent allows for the reduction to reflect
by how much an operator or excavator exceeds the compliance rate goal for
a year.
Devon commented that an increase in the penalty amount, in the range of
25-250 percent, be calculated for exceeding the compliance rate and included
on Line 20, as a substitute for the penalty enhancements. Devon contended
that this range is sufficient to encourage excavators and operators to develop
more effective damage prevention programs. Additionally, this reserves larger
fines for the more serious Tier I Conduct.
Devon would substitute "Tier I Conduct" for penalty enhancements. Devon
would add two violations from the proposed Table 1--"Impact to a residential
or public area" and "Reckless conduct of person charged"--to Devon's proposed
excavator failure to self-report to Texas One Call. The proposed three-year
life span would allow recent history of Tier I penalties to determine if a
fine is in the low or high end of the $5,000 to $25,000 range. Devon suggested
that a longer life span for Tier I penalties could interfere with incentives
to promote continual improvement of damage prevention programs, thus Devon
would reduce penalties for what are now labeled Tier II conduct to $500.
Devon recommended that the original suggested penalty for Item 16 be changed
from "failure to report damage by third-party" to "failure to report damage
to the TDRF." This will include third-party damage and provide a smaller penalty
for a failure to report to the TDRF than to the Texas One Call. Devon would
also move "reduction for settlement before hearing" lower on the table in
order to include penalties associated with both Tier I and Tier II violations.
The Commission agrees that excavators failing to report damage is significant.
Line 16 on Table 1 reads "failure to report damage by third party," which
the Commission recognizes could be ambiguous. The Commission has changed this
to distinguish between excavator and pipeline duties to report damage to underground
pipelines.
The Commission agrees that unreported damage can become a threat to the
public months or years after the initial incident. The Commission agrees also
that an excavator should report pipeline damage directly to a notification
center, within two hours or less, which would then treat the call as an emergency
line locate request. Operators would have up to four hours to respond to the
"damage" ticket. Furthermore, Devon suggested, the excavator should not be
permitted to cover the exposed pipeline without approval of the operator.
Section 18.11(b) has been adopted with amended language consistent with this
recommendation. The Commission has made a conforming change in the adopted
versions of §18.4, by adding subsection (h) requiring an excavator to
notify an operator of damage to a pipeline through a notification center,
and of §18.5, by adding a new subsection (d) that requires an operator
receiving notice of damage to an underground pipeline to respond within four
hours.
The Commission neither agrees nor disagrees with Devon's suggestions regarding
the structure of penalties. The Commission recognizes the value in establishing
a risk-based approach to penalties, and in having some objective means of
evaluating "good faith." However, the Commission does not envision the penalty
provisions as the centerpiece of the rules in Chapter 18. The Commission will
be reviewing and analyzing the data reported through the TDRF system to determine
whether the Chapter 18 standards have been clearly stated and effectively
communicated. For now, the Commission will use the penalty matrix substantially
as proposed; this is nearly identical to the penalty matrix adopted in 16
Tex. Admin. Code §8.245 (relating to Penalty Guidelines for Pipeline
Safety Violations) for natural gas pipelines, and it has worked well.
Texas Gas expressed concern that §18.12 and the accompanying penalty
guidelines set out in Table 1 disproportionately impact operators. As an initial
matter, while the penalty guidelines recommend $1,000 for most infractions,
the guidelines recommend $2,500 for "failure to provide positive response."
By its nature, this infraction only applies to an operator that has the obligation
to provide a positive response to a line locate request. The rule provides
no justification why this particular infraction should merit a fine 150 percent
higher than other infractions. For instance, infractions that are specific
to excavators, such as "failure to notify notification center" or "failure
to include method for positive response," merit only a $1,000 fine under the
guidelines, even though notifying a notification center and providing a method
for responding are necessary preconditions to an operator providing a positive
response. Moreover, the guidelines recommend only $1,000 for falsely reporting
an emergency line locate request, even though this infraction goes to fraudulent
behavior and not mere negligence. Texas Gas suggested that the suggested penalty
for "failure to provide positive response" should be $1,000, consistent with
the suggested penalties for the other infractions listed on Table 1.
Texas Gas noted that the only other infraction listed on Table 1 that does
not have a suggested penalty of $1,000 is for a failure to protect locate
markings, which has a suggested penalty of $500. Since the ultimate aim of
the rules is to locate and mark underground pipelines before excavation, Texas
Gas is unclear why conduct which may negate the entire focus of the rules
by failing to maintain locate markings before excavation is of apparent diminished
importance to the Commission.
The Commission has agreed with other comments recommending that the penalty
for failure to provide a positive response should be reduced to $1,000, and
agrees that the penalty for failure to protect line markings should also be
set at $1,000. The Commission points out, however, that the primary reason
for proposing a $2,500 penalty for failure to provide a positive response
was that there were so many instances of this occurring. The Commission further
points out that the penalty amounts shown in the table are only guidelines
to be considered in determining the amount of administrative penalties for
violations of the requirements of Chapter 18. The guidelines in no way limit
the Commission's authority and discretion to assess administrative penalties
in any amount up to the statutory maximum when warranted by the facts in any
case. The amount of any penalty requested, recommended, or finally assessed
in an enforcement action will be determined on an individual case-by-case
basis for each violation, taking into consideration the factors set out in §18.12(b).
TPA addressed several areas of the fines and penalties section of the proposed
rule including the parity of fines, the schedule of fines, and fining individuals
for reporting false emergencies. In reviewing the proposed rule, and specifically
the fines and penalties section, TPA noted that the proposed fine for failing
to make a positive response was significantly higher than any other proposed
fine. TPA requested that the suggested fine be adjusted to be in alignment
with the all other suggested penalties. TPA suggested that all penalties be
equal until greater data are collected and justification made to increase
or decrease the recommended fines according to the activities that result
in the greatest known risk or activity that endangers the safety of the public
or workers and the integrity of the pipeline itself.
Further, TPA expressed concern over the manner in which fines and penalties
will increase as the number of violation occurs. Larger pipeline companies
can receive tens of thousands, and even hundreds of thousands, of locate requests
each year. Under the proposed rule, a pipeline company could receive millions
of dollars in fines even if it had a 99.99 percent accuracy with regard to
the number of potential excavations near buried pipeline facilities successfully
responded to during the course of a year. While a larger excavation firm may
only have to several dozen calls per year, the potential damage to a pipeline
facility is far greater for those each of those calls. And yet, the potential
fines for the failure to follow the proposed rule are substantially less than
that of the pipeline operator. TPA respectfully requested that the Commission
provide an alternative penalty structure for operators, and, specifically,
an alternative structure for penalty enhancements for operators, when the
rule is considered for final adoption.
Last, TPA requested that the Commission address the penalty provision for
anyone who falsely reports an emergency. One of the greatest issues pipeline
operators face is responding to false emergencies that are actually made in
order to accelerate a pipeline operators response to a locate request. While
a provision in the penalty section covers falsely reporting an emergency,
the proposed rule does not specifically prohibit such actions by an excavator.
TPA is concerned that there is no specific violation that can be cited in
order to penalize an excavator for such actions.
The Commission disagrees with the recommendation to have a separate penalty
structure for operators. The Commission agrees that, at least initially, all
recommended base penalty amounts will be $1,000. The Commission does not anticipate
that fines will be in the "millions of dollars," unless these problems are
far more widespread than has been documented. The Commission views the reporting
requirements as far more valuable in terms of analyzing how well the new rules
in Chapter 18 are working. The Commission has also added "number of locate
calls received" and "number of locate notices given" as factors to be considered
in determining enhancements or mitigation of recommended penalties. Finally,
the Commission has reconsidered its proposal to penalize the false reporting
of an emergency locate request. The Commission has determined that, ultimately,
it is within the purview of the Texas One Call Board to determine and enforce
standards for emergency locate requests. The false emergency locate requests
are clearly a resource issue for operators, but not of the same magnitude,
in terms of safety, as failure to locate, failure to make a positive response,
or failure to give notice of intent to excavate. The Commission has removed
the penalty proposed in Table 1, line 2.
The Coalition also requested that the Commission address four issues relating
to the fines and penalties section of the rulemaking. The issues relate to
the parity of violations, falsely reporting an emergency, the penalty schedule
for multiple violations, and fining excavators for failing to report certain
types of violations.
The first issue relates to the recommended fine attributable to the failure
to provide a positive response under §18.5. While the Coalition agreed
that any operator failing to provide a positive response would not be in compliance
with the provisions of this rulemaking, the Coalition questioned the amount
of the recommended penalty of $2,500 in the proposed rule. There are many
other violations listed on the "Suggested Penalties" table; however, no other
violation is associated with the same level of monetary penalty as that for
positive response. The Coalition questioned the parity of positive response
and that of several other violations including the failure to notify a notification
center and the failure to wait the required time before digging. The Coalition
respectfully requested that this parity be addressed. This can be accomplished
by either adjusting the fine for similar violations to the same level cited
for positive response, or reducing the recommended fine for positive response
to the level of similar violations.
The Coalition also sought additional clarification from the Commission
with regard to violations relating to falsely reporting an emergency to a
pipeline operator. The definition of "emergency" is established in the definition
section of the proposal. And line 2 of the "Suggested Penalties" worksheet
states that falsely reporting an emergency line locate request is indeed a
violation. However, there is no provision found within the rule that actually
prohibits an excavator or other party from falsely reporting an emergency
in order to expedite the marking of facilities by an operator. The reporting
of emergency situations is a huge problem for underground facility owners.
False emergencies take substantial time and resources away from marking those
facilities that have been correctly requested by excavators as part of the
one call notification process. The Coalition requested that a provision be
added to specifically address falsely reporting an emergency for clarification
and enforcement purposes.
The Coalition also requested that the final rule be adjusted to address
concerns with the manner in which fees and penalties are escalated when violations
occur. While the Coalition supports increasing the fees for violations outlined
in §18.12(b), the Coalition believes the penalties for repeat violations
have the potential to be unfair to operators who receive significantly higher
volumes of locate requests and/or significant miles of pipeline. For example,
some pipeline operators process hundreds of thousands of tickets per year;
while some large-scale excavators may only request several hundred locates
per year. The higher volume pipeline operators potentially will be subject
to substantially higher absolute levels of fines due to the penalty amounts
being multiplied if even two incidents occur. While pipeline operators strive
to ensure a perfect record, violations will occur. The Coalition requested
that some alternative manner or schedule be evaluated and established for
fining those with higher volumes of locate tickets or requests.
Last, the Coalition does not believe that an excavator should face fines
and penalties for failing to report damage to an underground pipeline, suggesting
that this would create a disincentives for any stakeholder, in particular
the excavators, from being an active part of the process.
The Commission agrees that, at least initially, all recommended base penalty
amounts will be $1,000. The Commission points out, however, that the penalty
amounts shown in the table are only guidelines to be considered in determining
the amount of administrative penalties for violations of the requirements
of Chapter 18. The guidelines in no way limit the Commission's authority and
discretion to assess administrative penalties in any amount up to the statutory
maximum when warranted by the facts in any case. The amount of any penalty
requested, recommended, or finally assessed in an enforcement action will
be determined on an individual case-by-case basis for each violation, taking
into consideration the factors set out in §18.12(b). The Commission has
also added "number of locate calls received" and "number of locate notices
given" as factors to be considered in determining enhancements or mitigation
of recommended penalties. The Commission has reconsidered its proposal to
penalize the false reporting of an emergency locate request. The Commission
has determined that, ultimately, it is within the purview of the Texas One
Call Board to determine and enforce standards for emergency locate requests.
The false emergency locate requests are clearly a resource issue for operators,
but not of the same magnitude, in terms of safety, as failure to locate, failure
to make a positive response, or failure to give notice of intent to excavate.
The Commission has removed the penalty proposed in Table 1, line 2.
The Commission disagrees with the premise of the Coalition's recommendation
that an excavator not face fines and penalties for failing to report damage
to an underground pipeline, because nothing in new §18.12 requires that
a monetary penalty be imposed for any violation. To the contrary, the rule
expressly provides that the Commission may impose a non-monetary penalty,
such as requiring attendance at a safety training course, or may issue a warning,
depending upon the nature of and the consequences resulting from the violation.
The Commission recognizes that having penalty provisions does not guarantee
compliance with the rules, but also recognizes that there is some deterrent
effect to being able to impose monetary penalties for violations.
CenterPoint commented that while the penalty scheme in proposed §18.12
appears to be based on the Penalty Guidelines for Pipeline Safety Violations
contained in 16 TAC §8.245, the enhancement of penalties based on repeat
violations would have the effect of unfairly penalizing CenterPoint and other
large local distribution companies that handle hundreds of thousands of locates
annually. In addition, the range of the enhancement based on impact to a residential
or public area is significantly higher than the $1,000 - $15,000 level established
in §8.245. CenterPoint thus also supports the comments of Atmos, Texas
Gas Services, and the Texas Pipeline Association regarding the penalty structure
and urges the Commission to reexamine it in light of these comments. The Commission
has considered all the comments regarding the penalty structure, and, in response,
has made some clarifying changes in the adopted rules.
WTG commented that §18.12(b)(1) is too broad. First, WTG questioned
which violation will be considered under this part. WTG asked whether the
Commission is talking about only violations of this rule or whether violations
of any other laws, regulations, or rules would be taken into consideration.
WTG inferred that the Commission intends to consider only previous violations
of Chapter 18 and not anything else, and so WTG recommended that subsection
(b)(1) be restricted only to violations of Chapter 18 rules.
Second, WTG noted that there is no time limit on previous violations. WTG
recommended that a time limit be established so that any violation that occurred
more than four years will not be considered.
Third, WTG asked whether the rule would ever be interpreted to make a current
owner of pipeline properties responsible for the actions of previous owners.
WTG asked, for example, whether it would be responsible for higher penalties
and enhancements because of a previous owner's violations on a pipeline that
WTG might acquire. WTG inferred that the Commission does not intend this type
of consequence, and therefore recommended that some guidance be given in the
rule to eliminate this possibility.
The Commission agrees with the recommendation to use only prior violations
of Chapter 18 rules in calculating any penalty enhancements under new §18.12;
that has always been the intent. However, the Commission disagrees with limiting
prior violations to those within the prior four years. The Commission will
consider all prior violations, but the time period over which those have occurred
would also be taken into account. For example, an entity that had two prior
violations in the past five years would be viewed differently from an entity
that had two prior violations in the past six months. Finally, the Commission
agrees that a current owner is not responsible for the conduct of a prior
owner. The Commission declines to make any changes in the text of the adopted
rule, however, because the rule is already written to apply to the conduct
of "the person charged."
With respect to §18.12(b)(2), API and AOPL commented on the factors
set out that are used to determine recommended penalty amounts. API and AOPL
commented that the threshold for consideration should be revised so that even
damage to a pipeline (or other underground appurtenance) is considered in
the penalty equation. For the rule to speak in terms of pollution resulting
from a violation is to imply that a release incident has occurred, which most
likely would be in the case of a pipeline transporting hazardous liquids.
Yet damage to a gas or liquid pipeline very well may result in significant
costs for examination and repairs when reported to the pipeline operator,
or may create a condition conducive to long-term deleterious effects to the
pipeline if not reported. A mere scrape to pipeline coatings may initiate
damaging corrosion on a steel pipeline. API and AOPL urged that the penalty
consideration factor must prompt consideration of damage to a pipeline to
a degree less than damage that causes a release and thus pollution. API and
AOPL believe that the rule may then result in a greater deterrent effect upon
those who might otherwise be inclined to take their economic and safety chances
while excavating. API and AOPL encouraged the Commission to revise this rule
to include damage to a pipeline as a penalty consideration factor in §18.12(b)(2).
The Commission recognizes that not every pipeline damage incident will
cause a spill or release resulting in pollution, but certainly some will.
That is just one factor among others that the Commission, by statute, must
consider. The Commission must weigh whether the requirement to report all
damage (and the resulting penalty for failure to do so) may create a disincentive
for excavators to report damage to the operator and to the Commission. For
the present, however, the Commission finds that §18.12, as adopted, will
provide fair notice of the recommended penalties that could be sought in an
enforcement proceeding.
WTG also commented that in §18.12(b)(2), "seriousness" is too subjective
to be used as a standard, and suggested that the Commission substitute "amount
of damage to the pipeline" instead. In WTG's opinion, this would be more objective
and allow for better assessment of penalties or fees.
The Commission disagrees with this comment. Texas Natural Resources Code, §81.0531,
and Texas Utilities Code, §121.206, require the Commission by rule to
adopt guidelines to be used in determining the amount of the penalty for a
violation of a provision of Title 3 of the Natural Resources Code, or a rule,
order, license, permit, or certificate that relates to pipeline safety. The
guidelines must include a penalty calculation worksheet that specifies the
typical penalty for certain violations, circumstances justifying enhancement
of a penalty and the amount of the enhancement, and circumstances justifying
a reduction in a penalty and the amount of the reduction. By statute, the
guidelines must also take into account: (1) the permittee's history of previous
violations, including the number of previous violations; (2) the seriousness
of the violation and of any pollution resulting from the violation; (3) any
hazard to the health or safety of the public; (4) the degree of culpability;
(5) the demonstrated good faith of the person charged; and (6) any other factor
the Commission considers relevant. Because "seriousness of the violation"
is a statutory standard, the Commission has determined that it is appropriate
to be included in the rule. Certainly the amount of damage to a pipeline would
be one measure of "seriousness," as would the amount of damage to other property,
and whether there is any personal injury and/or loss of life.
In §18.12(b)(4), WTG objected to the use of "degree of culpability"
as not suitable in this rule. "Culpa" is a civil law term meaning "actionable
negligence" (Bryan A. Garner A Dictionary of Modern Legal Usage, Second Edition,
Oxford University Press, 1995). WTG opposed the use of any word so strong
as to input actionable negligence on their part. The civil liability consequences
are too extensive. WTG recommended that subsection (b)(4) be eliminated from
the rule. The Commission could substitute "reasonable care" for "culpability."
It is not necessary to saddle anyone with the extra liability in a civil lawsuit
by using "culpability." As noted in the Commission's response to WTG's previous
comment, "degree of culpability" is one of the factors the Commission is required
by statute to consider in determining the amount of any penalty for a violation
of a provision of this title or a rule, order, license, permit, or certificate
that relates to pipeline safety. Because "degree of culpability" is a statutory
standard, the Commission has determined that it is appropriately included
in the rule.
Air Products recommended deleting §18.12(c), but did not explain its
reasons. TxDOT commented that because this subsection removes a person's opportunities
once a hearing is convened, it reads like a coercive measure used to discourage
someone from fighting a penalty. Additionally, the referenced reduction enhancements
are not defined. The Commission disagrees with deleting this provision because
it is the policy of the agency to promote settlement in enforcement matters.
The reduction is applied only to the basic monetary penalty amount requested
and not to any requested enhancements; it is found on line 18, before the
lines for penalty enhancements on lines 20 through 25. The next-to-last item,
however, is for any reduction in the penalty amount for the demonstrated good
faith of the person charged. "Good faith" is explained in §18.12(d).
The Smalley Foundation encouraged the generous application of non-monetary
penalties such as safety training classes for first-time or nominal offenders,
recognizing that most pipeline damage is caused by third parties. However,
the Smalley Foundation trainers are out in the field, so to speak, and they
are also aware that many excavators who cause such damage--especially novice
or small business owners--fail to report their mistakes due to fear or misinformation
concerning the consequences. In the opinion of the Smalley Foundation, mandatory
attendance at safety training classes, rather than a fine, is a better solution
for these offenders. Also, such classes have a collateral effect, in that
it will help spread accurate information to other persons and excavators in
particular. Thus, the Foundation especially favored the provision in the rules
allowing for this educational option. The Commission agrees that improved
education is a benefit with respect to underground pipeline damage prevention.
WTG commented that the penalty amounts shown on Table 1 are too high and
clearly show that a penalty will be imposed for every violation. WTG recommended
that suggested penalty column of the Penalty Calculations Worksheet be eliminated.
The suggested penalties establish a minimum penalty and eliminate the factors
stated in the penalty guidelines of subsection (b). There will be occasions
that lesser penalties could be accessed after review of the individual case,
but suggested penalties creates a minimum penalty that the Commission should
avoid. It is only fair to pipeline operators and excavators that the guidelines
not end up as an administrative tool to automatically determine the fine without
regard to the actual facts and circumstances of the case. WTG believes it
would be wiser to eliminate the suggested penalty column and let the precedent
of penalty cases be the guidelines for assessing penalties.
The Commission disagrees with these comments. New §18.12 complies
with the requirements of Texas Natural Resources Code, §81.0531, and
Texas Utilities Code, §121.206, as explained in previous paragraphs.
The recommended penalty amounts are only that; the Commission retains full
discretion to assess administrative penalties in any amount up to the statutory
maximum when warranted by the facts in any case, or to impose a non-monetary
penalty in the form of a warning or a requirement to attend training. An entity
that objects to a penalty or disputes the facts of an alleged violation would
have an opportunity for an evidentiary hearing pursuant to the Administrative
Procedure Act and the Commission's Practice and Procedure rules. The Commission
declines to make the changes suggested by WTG because Table 1 is structured
as required by the referenced statutory provisions.
WTG also expressed concern about line item no. 11 "failure to provide adequate
response" on the calculation worksheet and the amount of $2,500 which is the
highest recommended penalty. This is a punitive number directed solely at
pipeline operators. Although §18.5 refers to excavators in the title,
the actionable provision is subsection (a), which is directed at operators,
and the rule does not require an excavator to make a positive response. If
this penalty is also directed towards excavators, the worksheet should say
so.
The Commission, in agreement with other comments, has already made all
recommended penalty amounts equal at $1,000, at least initially. The obligation
to make a positive response does belong to operators, and failure to do so
is a serious violation. New §18.5 refers to excavators in the title because
the rule requires both an operator and an excavator to retain a record of
the positive response; however, an excavator's failure to retain such a record
is clearly a much less serious violation of the rule than would be an operator's
failure to make a positive response.
With respect to §18.12, Atmos submitted that the penalty guidelines
lack parity between the operator and the excavator. While Atmos strives daily
to mark its facilities accurately and promptly, with the volume of locate
activity Atmos is required to undertake, it is likely that over the course
of weeks and months, numerous line location issues will arise. For example,
in 2006 Atmos performed over 1,100,000 lines locates in Texas. Based upon
an internal analysis of damage claims related to those line locates and applying
the proposed penalty structure, Atmos estimates that in 2006 it could have
been assessed penalties for more than $1,600,000. While it is unclear from
the proposed penalty schedule whether the triple, quadruple, and quintuple
penalty enhancers (lines 23 through 25 as proposed; lines 22 through 24 as
adopted) must relate to the line location event at hand or are cumulative
of all prior violations by the excavator or operator, if the enhancers are
cumulative of prior violations, the Atmos potential penalty assessment for
2006 would be nearly $7,000,000. Atmos understands that the purpose of penalties
is to incent behavior, but the effect of the penalties at these levels will
be to cripple an industry.
One behavior that Atmos identified as needing to be addressed aggressively
is the liberal use of the "emergency" line locate request. Atmos suggested
that a methodology be established for reporting a locate request that is designated
as an emergency, but which is not an emergency in view of the operator. There
is a suggested penalty for this inappropriate action, but no corresponding
reporting mechanism.
Atmos questioned why the failure to provide a positive response carries
a suggested penalty that is two and one-half times as much as than the failure
to mark a facility properly or the failure to dig with care when most assuredly
the failure to mark and the failure to dig with care create far greater safety
concerns.
Finally, Atmos suggested that the suggested penalties be reduced to 50
percent of the proposed level. For small excavators, a $1,000 penalty could
seriously impact the excavator's business. If experience shows that the level
of penalties is an insufficient motivator towards compliance, the Commission
can always amend the rule to provide for higher penalties.
The Commission disagrees with Atmos's comments. New §18.12 does not
require the imposition of a monetary penalty for every violation. In response
to previous comments, the Commission adopts §18.12 with identical recommended
penalties for all violations ($1,000), but would point out that the reason
for proposing an penalty of $2,500 for failure to provide a positive response
is that those failures are so widespread, a situation that might also explain
the perceived over-use of emergency line locate requests. The Commission is
not adopting the new rules in Chapter 18 in order to penalize every violation
it finds. To the contrary, the centerpiece of the new rules is the reporting
mechanism, which the Commission expect will provide better data to evaluate
the efficacy of the rules in Chapter 18.
Finally, the Commission has reconsidered its proposal to penalize the false
reporting of an emergency locate request. The Commission has determined that,
ultimately, it is within the purview of the Texas One Call Board to determine
and enforce standards for emergency locate requests. The false emergency locate
requests are clearly a resource issue for operators, but not of the same magnitude,
in terms of safety, as failure to locate, failure to make a positive response,
or failure to give notice of intent to excavate. The Commission has removed
the penalty proposed in Table 1, line 2.
CenterPoint recommended adding a new penalty to address situations where
the excavator does not accurately identify the location of its excavation
as required by Section 18.3. The Commission disagrees with this recommendation
because it is unnecessary.
CenterPoint suggested that renumbered enhancement item nos. 24-27 (adopted
as 23-26) be reexamined and revised to insure that they do not unfairly penalize
large operators such as CenterPoint. The Commission disagrees with making
this change because of having added to §18.12(b)(6) as a factor to be
considered the number of line locate requests received each year.
TGA commented on Table 1, Line 1, the recommended penalty of $1,000 for
failure to comply with Chapter 18. TGA stated that assuming that
any
damage to a pipeline would be addressed under Line No. 1 B "Failure to comply with Chapter 18,"
the Commission
must exercise discretion in assessing penalties to excavators who report the
damage to the operator. Currently, many excavators who inadvertently damage
a located pipeline contact the operator who then makes the appropriate repair
to the damage. Should penalties be enforced for those damages, the results
could be the unintended consequence of reducing the number of damages reported
to the operator. If the damages are not reported and therefore not repaired,
the results could be significantly worse. Covering up a small damage to avoid
a penalty would result in a continuing potential for an incident or accident,
negating the very rationale for this rule.
The Commission agrees that there is a balance to be struck between enforcing
the provisions of Chapter 18 and creating disincentives for excavators to
report damage to an operator so that the operator can make a timely repair.
The Commission has stated, in response to other comments, that not every violation
of the Chapter 18 rules will necessarily result in an enforcement action,
and not every enforcement action will necessarily result in monetary penalties.
The Commission acknowledges and encourages the cooperative relationships that
operators and excavators have developed that promote timely reporting and
prompt repair of damage to underground pipelines.
Air Products commented that the penalty in Table 1, Line 3, failure to
notify notification center, should have a penalty of $2,500, instead of the
$1,000 that was proposed. The Commission disagrees, having adjusted all recommended
penalties in Table 1 to $1,000 in response to other comments.
Air Products also asked how the penalty shown in Table 1, line 5, failure
to use white-lining where appropriate, was to be judged, then recommended
a zero penalty amount. The Commission disagrees with the suggestion to reduce
the recommended penalty to zero, and offers the following clarification to
the requirement in §18.3 regarding use of white-lining. If an operator
is unable to determine from a locate ticket where an excavation is going to
take place, then the excavator would be required to use white-lining. If the
operator is still unable to determine where to place the location markings,
then that may be an indication that the excavator has failed to use white-lining
where it was necessary.
Air Products commented that there should not be a penalty for failure to
report damage by third party (Table 1, line 16) because, operators will be
motivated naturally to provide notification. The Commission disagrees. The
Commission wants reports of all damage to underground pipelines in order to
be able to analyze which types of damage are most common, whether the rules
in Chapter 18 are adequate to notify excavators and operators of safe practices,
and whether and what additional steps might be taken to improve pipeline safety.
Air Products recommended eliminating line 18 on Table 1, the reduction
for settlement before hearing: up to 50 percent of the amount shown on line
17, but did not explain the reason for this recommendation. The Commission
disagrees with it; it is the policy of the Commission to encourage settlement
of enforcement actions.
Texas Gas expressed concern with the penalty enhancements found on lines
22 through 25 of Table 1. These penalty enhancements double, triple, quadruple
and even quintuple penalty amounts for repeat infractions. Presumably these
enhancements are intended to create incentives for excavators and operators
to carefully follow the rules, and Texas Gas applauds this intent. Texas Gas
worried, however, that including these categories in a worksheet for calculating
fines runs the risk of multiplying penalties for repeat infractions as a matter
of course, without regard to the culpability of the underlying conduct. Texas
Gas operates 15,412 miles of pipelines and services throughout the state and
receives on average more than 145,000 line locate requests in a given year.
Given the sheer volume of line locates, even a scrupulously prudent and attentive
operator will surely run afoul of one or more rules on multiple occasions.
For instance, even if Texas Gas successfully complies with all rules on 99.9
percent of line locate requests, this still leaves 145 infractions. Texas
Gas does not believe it is reasonable to double, triple, or even quintuple
the penalties as a matter of course for mistakes that cannot be reasonably
prevented. The enhancements cannot change Texas Gas' conduct to any greater
extent, and therefore have no policy justification and instead act as a hidden
tax on the utility. Texas Gas therefore recommends deleting those penalty
enhancements from the penalty worksheet.
To the extent an enhancement for repeat infractions is merited, whether
for excavator or operator, the rules already specify that consideration be
given to "the person's history of previous violations, including the number
of previous violations" (proposed §18.12(b)(1)). Thus, the Commission
is authorized to enhance a penalty for repeat offenders when the circumstances
of the infraction merit the enhancement. Given that the rule already contemplates
a subjective analysis of a party's compliance history, Texas Gas objects to
the inclusion of specific language in the penalty calculation worksheet enhancing
penalties for repeat infractions.
With respect to the penalty enhancements shown on Table 1, lines 22-25,
Texas Gas commented that operators who receive locate tickets from several
excavators have a geometrically-larger number of locates than the individual
excavators have notifications of excavations to the notification center. The
penalties for both the operator and the excavator are based on arithmetic
progressions. Therefore the operator stands to have a larger number of penalties
than the excavator for the same number of violations. If the enhancement portion
of the penalties could be based upon a percentage or some other means that
would equalize the number of actions (notifications or locates), the enhancement
section of the rule would be more equitable between the operators and the
excavators.
The Commission disagrees with this comment. The rule itself does not mandate
penalties for every violation of the Chapter 18 rules; nor does it require
monetary penalties for violations. The Commission has added to §18.12(b)(6)
as a factor to be considered the number of line locate requests received each
year. The rate of compliance will also be a component of "demonstrated good
faith," a mitigating consideration under §18.12(b)(5). Finally, Texas
Natural Resources Code, §81.0531, and Texas Utilities Code, §121.206,
expressly require the Commission to adopt, by rule, guidelines to be used
in determining the amount of the penalty for a violation of a provision a
rule, order, license, permit, or certificate that relates to pipeline safety.
The guidelines are expressly required to include a penalty calculation worksheet
that specifies the typical penalty for certain violations, the circumstances
justifying enhancement of a penalty and the amount of the enhancement, and
the circumstances justifying a reduction in a penalty and the amount of the
reduction. By statute, the guidelines must take into account the permittee's
history of previous violations, including the number of previous violations;
the seriousness of the violation and of any pollution resulting from the violation;
any hazard to the health or safety of the public; the degree of culpability;
the demonstrated good faith of the person charged; and any other factor the
Commission considers relevant.
Air Products asked the time period over which the previous violations would
be considered. The Commission will consider all prior violations, but the
time period over which those have occurred would also be taken into account.
For example, an entity that had two prior violations in the past five years
would be viewed differently from an entity that had two prior violations in
the past six months.
SM&P believed that the suggested rules and the fines associated with
them will have an undesirable destabilizing effect on the safety and effectiveness
of utility locating. This is particularly the case in reference to fine amounts
shown on Table 1, lines 21-25, which escalate fines to levels which would
become prohibitively burdensome. In SM&P's view, the Commission's proposed
definition of "persons" would be unduly burdensome to larger operators and
locating companies who would have a disproportionate amount of tickets compared
to others over the course of a year. SM&P believed that the fines listed
in the Penalty Calculation Worksheet should be removed from the proposed rule
changes. In the alternative, SM&P recommended that the penalties shown
on lines 4, 6, and 7 should be removed, consistent with other comments made
by SM&P, and the recommended penalty on line 1 should be removed as redundant.
The Commission reiterates the response made to similar comments by Texas Gas
and Air Products in previous paragraphs.
As adopted, new §18.1, relating to scope, applicability, and general
provisions, sets forth the statutory basis for the new rules in Chapter 18.
The chapter implements the authority of the Commission under Texas Natural
Resources Code, §117.012, and Texas Utilities Code, §121.201 (as
amended by House Bill 2161, Acts 2005, 79th Leg., R.S., ch. 267, §§6
and 13, eff. Sept. 1, 2005), and under Texas Health and Safety Code, §756.106
(as added by Senate Bill 9, Acts 2005, 79th Leg., R. S., ch. 1337, §19,
and editorially renumbered as Health and Safety Code, §756.126). Except
as provided in subsection (d) of this section, this chapter applies to all
persons engaged in or preparing to engage in the movement of earth in the
vicinity of an intrastate underground pipeline containing flammable, toxic,
or corrosive gas, a hazardous liquid, or carbon dioxide.
The requirements of the new rules in Chapter 18 are based on the presumption
that an excavator will notify a notification center pursuant to, and that
a pipeline operator will respond in accordance with, the provisions of Texas
Utilities Code, Chapter 251, and the requirements of the notification center.
However, compliance with the provisions of Texas Utilities Code, Chapter 251,
and the requirements of a notification center does not necessarily constitute
compliance with the requirements of this chapter.
Persons that are exempt from the provisions of Texas Utilities Code, Chapter
251, are required to comply with this chapter, unless the person is exempt
under the subsection (d) of §18.1. Subsection (d) declares that this
chapter does not apply to: (1) the exemptions in Texas Utilities Code, §251.003;
(2) the movement of earth that does not exceed a depth of 16 inches; or (3)
surface mining operations. The Commission adopts new subsection (d) with additional
exemptions for specific TxDOT activities, having found that the exemptions
are in the public interest and are not likely to cause harm to the safety
and welfare of the public. The following activities when performed by an employee
of TxDOT within TxDOT right-of-way, are exempt from the requirements of Chapter
18: sampling and repair of pavement, base, and subgrade; repair of roadway
embankment adjacent to pavement structure; reshaping of unpaved shoulders
and drop-offs; installation and maintenance of guardrails, cable barriers,
delineators, vehicle attenuators, sign posts, mailboxes, and cables for traffic
signals and luminaries; cleaning of ditches; and removal of silt from culverts.
Additionally, hand digging by an employee or contractor of TxDOT for TxDOT's
archeological program is exempt.
Additional general provisions in new §18.1 include an express statement
that this chapter applies to movement of earth by tillage that exceeds a depth
of 16 inches. Unless otherwise specified, all time periods used in this chapter
are to be calculated from the time the original notification is given to the
notification center. Also, unless otherwise specified, all time periods that
are stated in days shall mean working days. Unless an excavator and an operator
otherwise expressly agree in accordance with the requirements set forth in
new §18.3, the life of a line locate ticket shall is 14 days. Finally,
unless otherwise expressly stated in Chapter 18, each excavator and each operator
shall retain required records for at least four years. At a minimum, each
operator and each excavator must retain locate tickets and positive response
notifications. Retention at a notification center is an acceptable method
of retention for locate tickets.
As adopted, new §18.2, relating to definitions, includes clarifying
amendments to the proposed definition for "emergency," which is defined as
a situation that endangers life, health, or property or a situation in which
the public need for uninterrupted service and immediate re-establishment of
service if services are interrupted compels immediate action. This is consistent
with the definition found in Texas Utilities Code, Chapter 251.
The Commission adopts the definition of the term "notification center"
with a clarifying amendment to mean a legal entity established and operated
pursuant to Texas Utilities Code, Chapter 251, Subchapter C.
The Commission adopts the definition of "positive response" with clarifying
amendments to remove the word "planned" from the description of excavations
in the vicinity of underground pipelines; to include specific reference to
use of fax, phone, e-mail, pager, or written correspondence; and to remove
the phrase "other shared or transmitted information."
The Commission adopts the definition of "tillage" with a minor modification
to remove the phrase "into a desired condition."
The Commission adopts the definition of "tolerance zone" with a clarifying
amendment that removes the word "width" and substitutes the term "nominal
diameter."
The Commission adopts all other definitions as proposed.
The Commission adopts new §18.3, relating to excavator notice to notification
center, with clarifying changes. An excavator must request the location of
underground pipelines at each excavation site by giving notice to the notification
center as required by Texas Utilities Code, Chapter 251, and must include
in the notice the method or methods by which the excavator will receive a
positive response. When an excavation site cannot be clearly identified and
described on a line locate ticket, the excavator must use white-lining to
mark the excavation area prior to giving notice to the notification center
and before the locator arrives on the excavation site. If an excavation project
is too large to mark using white-lining or is so expansive that a full description
cannot be provided on a line locate ticket, then the operator and the excavator
are required to conduct a face-to-face meeting to discuss the excavation activities
and to establish protocols for (1) the interval between each notice to the
notification center; (2) the scope of each line locate ticket; (3) the life
of each line locate ticket; and (4) the schedule of work on the excavation
and the chronological order in which applicable locate tickets are to be marked.
If an excavation project is not completed at the time a line locate ticket
expires, the excavator must refresh the ticket by giving the notice described
in subsection (a) of this section, but the request to refresh must be limited
to the area yet to be excavated. An excavator and an operator may agree that
the life of a line locate ticket is more than 14 days provided that the agreement
is in writing and the agreement is signed and dated by both the excavator
and the operator. Both the excavator and the operator must retain a copy of
any such agreement.
The Commission adopts new §18.4, relating to excavator obligation
to avoid damage to underground pipelines, with clarifying changes in subsection
(d) and (f) and a new subsection (h). An excavator must comply with the requirements
of §18.3, relating to excavator notice to notification center. An excavator
must also comply with the requirements of Texas Health & Safety Code,
Subchapter H, relating to Construction Affecting Pipeline Easements and Rights-of-Way,
and must plan an excavation in such a manner as to avoid damage to and minimize
interference with all underground pipelines in the vicinity of the excavation
area and take all reasonable steps to protect underground pipelines from damage.
An excavator shall wait the time required by Texas Utilities Code, Chapter
251, before beginning excavation.
Prior to excavation, an excavator must confirm that a copy of a valid locate
ticket for the location is in the possession of the excavator's designated
representative and can be obtained from the representative or can be provided
within one hour of a request from the operator or the Commission. Prior to
excavation, an excavator must verify that it is at the correct location as
specified on the locate ticket; verify white-lining; and, to the best of the
excavator's ability, make a visual check for any unmarked underground pipelines.
Checking for unmarked underground pipelines includes, but is not limited to
looking for additional pipeline line markers, such as painted fence post-type
markers, aboveground pipeline valves, meter sets, regulator stations, or rectifier
units. An excavator may not begin excavating until a second notice is given
to the notification center for the area if (1) the excavator has knowledge
of the existence of an underground pipeline and has received an "all clear"
or a "no conflict" response from an operator; (2) the excavator observes clear
evidence (such as a line marker or an above-ground fixture) of the presence
of an unmarked underground pipeline in the area of the proposed excavation,
and has received an "all clear" or a "no conflict" response from an operator;
(3) there is no positive response for the excavation area; or (4) the positive
response is unclear or obviously erroneous (for example, for a different location
or for a different type of underground facility). If an excavator has given
a second notice in accordance with this section and there is no positive response
within four hours, the excavator may begin excavating. An excavator must protect
and preserve locate markings from the time the excavator begins work until
markings are no longer required for the proper and safe excavation in the
vicinity of all underground pipelines. Finally, each excavator that damages
an underground pipeline must notify the operator of the damage through the
notification center immediately but not later than two hours following the
damage incident, and may not cover the exposed pipeline without approval of
the operator.
The Commission adopts new §18.5, relating to operator and excavator
obligations with respect to positive response, with clarifying changes in
subsection (c) and a new subsection (d). Upon being contacted by the notification
system, an operator must provide a positive response within the time frames
specified in Texas Utilities Code, Chapter 251, by either (1) marking the
operator's underground pipelines in accordance with the requirements of Texas
Utilities Code, Chapter 251, and this chapter; or (2) notifying the excavator
that the operator has no underground pipelines in the vicinity of the proposed
excavation area. The operator must provide this "all clear" or "no conflict"
notice using the method or methods that the excavator specified. Both the
excavator and the operator must make a record of the positive response regarding
each line locate ticket received.
An excavator that gives a second notice to the notification center because
an operator failed to provide a positive response to an excavator must report
that fact to the Commission through TDRF as set forth in new §18.11.
An excavator must also report an operator's failure to provide a positive
response to a second call to the Commission through TDRF. An operator that
receives a notice of damage to its underground pipeline through a notification
center pursuant to §18.11(b) must respond within four hours.
The Commission adopts new §18.6, relating to general marking requirements,
with clarifying changes in subsections (b) and (c). At a minimum, all markings
must conform to the requirements of American Public Works Association (APWA)
Uniform Color Code (ANSI Standard Z535.1, Safety Color Code). Markings must
be valid for an excavation site for 14 days from the time a positive response
is given, unless the markings were placed in response to an emergency and
the emergency condition has ceased to exist. If a line locate ticket has been
refreshed, then the operator must either ensure that markings are still visible
and valid or must re-mark. If the use of line marking may permanently damage
property (driveways, landscaping, historic locations to the extent boundaries
are known), a locator must use spot marking or another suitable marking method
or methods.
The Commission adopts new §18.7, relating to excavator marking requirements,
with clarifying changes in subsection (a). Prior to giving notice pursuant
to new §18.3, an excavator must mark, if applicable according to §18.3(c),
the specific excavation area using white paint flags, or stakes, whichever
is most visible for the terrain. An excavator must mark the area of excavation
using intervals that show the direction of the excavation.
The Commission adopts new §18.8, relating to operator marking requirements.
A locator must use all information necessary to mark underground pipelines
accurately, and must mark the approximate center line of an underground pipeline.
If, in the process of marking an underground pipeline, a locator discovers
a customer-owned underground pipeline, the locator is required to make a reasonable
effort to advise the excavator of the presence of the customer-owned underground
pipeline. Where a proposed excavation crosses an underground pipeline, markings
must be at intervals that clearly define the route of the underground pipeline,
to the extent possible. A locator must mark underground pipelines by means
of stakes, paint, flags, or a combination of two or more of these. The terrain,
site conditions, and type and extent of the proposed excavation must be considered
in determining the most suitable means for marking underground pipelines.
In addition, a locator must mark at sufficient intervals to indicate clearly
the approximate horizontal location and direction of the underground pipeline
or pipelines. The distance between any two marks indicating the same line
must not exceed 20 feet; however, a shorter distance between marks may be
necessary because of site conditions or directional changes of the underground
pipeline. Markings of an underground pipeline greater than six inches in nominal
outside dimension must include the size in inches at every other mark. A locator
must extend all markings, if practical, at least one additional mark beyond
the boundaries of the specific location of the proposed work as detailed on
the line locate ticket. A locator must make paint marks approximately eight
to ten inches in length and one to two inches in width except when spot marking
is necessary, and must make a minimum of three separate marks for each underground
pipeline marking.
The Commission adopts new §18.9, relating to options for managing
an excavation site in the vicinity of an underground pipeline, with clarifying
changes in subsection (a). After complying with the notice requirements of
new §18.3, an excavator and an operator may jointly establish the protocols
applicable to an excavation site in the vicinity of underground pipelines
based on the particular characteristics of each job. The protocols applicable
to an excavation site may designate the contact person or persons for each
entity working at an excavation site; establish the required mode or modes
of communication among all entities working at an excavation site, e.g., telephone
or other electronic means or face-to-face meetings at prescribed times or
intervals; provide the method for coordinating work activities among all entities
working at an excavation site; provide for the ownership and/or possession
of the locate ticket or tickets; declare which entity or entities must have
the locate ticket or locate ticket number before beginning work; state the
life of a locate ticket and the circumstances that require refreshing the
locate ticket; state the schedule of work on the excavation and, if applicable,
the chronological order in which applicable locate tickets are to be located;
designate the extent of the tolerance zone, provided that it may not be less
than half the nominal diameter of the underground pipeline plus a minimum
of 18 inches on either side of the outside edge of the underground pipeline
on a horizontal plane, and the type of excavation permitted within the tolerance
zone; and provide for any other agreement with respect to excavation activities
and/or marking requirements that will or will tend to ensure the proper and
safe excavation in the vicinity of an underground pipeline. If an excavator
and an operator jointly establish protocols pursuant to this section, both
the excavator and the operator must make and retain a record of the agreement.
The Commission adopts new §18.10, relating to excavation within tolerance
zone, with a clarifying change to subsection (b). An excavator must comply
with the requirements of Texas Health & Safety Code, Subchapter H, relating
to Construction Affecting Pipeline Easements and Rights-of-Way. When excavation
is to take place within the specified tolerance zone, an excavator must exercise
such reasonable care as may be necessary to prevent damage to any underground
pipeline in or near the excavation area. Methods to consider, based on certain
climate or geographical conditions, include hand digging when practical, soft
digging, vacuum excavation methods, pneumatic hand tools. Other mechanical
methods or other technical methods that may be developed may be used with
the approval of the underground pipeline operator. Hand digging and non-invasive
methods are not required for pavement removal.
The Commission adopts new §18.11, relating to reporting requirements,
with clarifying changes. Each operator of an underground pipeline must report
to the Commission all damage to its pipelines caused by an excavator. Within
10 days of the damage incident or of the operator's actual knowledge of the
damage incident, an operator is required to submit the information to the
Commission through TDRF, which may be accessed at http://www.rrc.state.tx.us/formpr/index.html
using its assigned operator identification code.
Each excavator that damages an underground pipeline must notify the operator
of the damage through the notification center within two hours following the
damage incident. The excavator must also submit report of the damage incident
to the Commission using TDRF, within 10 days of the incident. Each excavator
that makes an additional call to the notification center because the excavator
did not receive a positive response to an initial notice must report that
fact to the Commission through TDRF. An excavator must also report an operator's
failure to provide a positive response to a second call to the Commission
through TDRF.
An emergency response official, a member of the general public, or another
person aware of damage to an underground pipeline is encouraged to submit
an incident form using TDRF. Entries can be made through the general public
or emergency response official sign-in.
The Commission adopts new §18.12, relating to penalty guidelines,
with clarifying changes in subsection (b) and to Table 1, and the deletion
of the last sentence of subsection (e) because of changes made in subsection
(b)(1). The penalty amounts shown in the table in this section are provided
solely as guidelines to be considered by the Commission in determining the
amount of administrative penalties for violations of the requirements of this
chapter. The establishment of these penalty guidelines in no way limits the
Commission's authority and discretion to assess administrative penalties in
any amount up to the statutory maximum when warranted by the facts in any
case. The amount of any penalty requested, recommended, or finally assessed
in an enforcement action will be determined on an individual case-by-case
basis for each violation, taking into consideration the following factors:
(1) the person's history of previous violations or formal warnings, including
the number of previous violations or formal warnings; (2) the seriousness
of the violation and of any pollution resulting from the violation; (3) any
hazard to the health or safety of the public; (4) the degree of culpability;
(5) the demonstrated good faith of the person charged; and (6) any other factor
the Commission considers relevant, including but not limited to the number
of locate requests received and responded to by an operator and the number
of location notifications given by an excavator in the previous year.
The recommended monetary penalty for a violation may be reduced by up to
50 percent if the person charged agrees to a settlement before the Commission
conducts an administrative hearing to prosecute a violation. Once the hearing
is convened, the opportunity for the person charged to reduce the basic monetary
penalty is no longer available. The reduction applies to the basic monetary
penalty amount requested and not to any requested enhancements.
In determining the total amount of any monetary penalty requested, recommended,
or finally assessed in an enforcement action, the Commission may consider,
on an individual case-by-case basis for each violation, the demonstrated good
faith of the person charged. Demonstrated good faith includes, but is not
limited to, actions taken by the person charged before the filing of an enforcement
action to remedy, in whole or in part, a violation of the rules in this chapter
or to mitigate the consequences of a violation of the rules in this chapter.
Depending upon the nature of and the consequences resulting from a violation
of this chapter, the Commission may impose a non-monetary penalty, such as
requiring attendance at a safety training course, or may issue a warning.
In Table 1, the Commission has established recommended penalty amounts
of $1,000 for all violations of the rules in Chapter 18, has removed the proposed
penalty for a false report of emergency line locate request, and has made
minor wording clarifications in specific items.
The Commission adopts the new sections pursuant to Texas Natural Resources
Code, §§81.0531 and 117.012, and Texas Utilities Code, §§121.201
(as amended by House Bill 2161, Acts 2005, 79th Leg., R.S., ch. 267, §§6
and 13, eff. Sept. 1, 2005), and 121.206. As amended, Texas Natural Resources
Code, §117.012, provides that the Commission shall adopt rules that include
safety standards for and practices applicable to the intrastate transportation
of hazardous liquids or carbon dioxide by pipeline and intrastate hazardous
liquid or carbon dioxide pipeline facilities, including safety standards related
to the prevention of damage to such a facility resulting from the movement
of earth by a person in the vicinity of the facility, other than movement
by tillage that does not exceed a depth of 16 inches. As amended, Texas Utilities
Code, §121.201(a)(1), states that the Commission may by rule prescribe
or adopt safety standards for the transportation of gas and for gas pipeline
facilities, including safety standards related to the prevention of damage
to such a facility resulting from the movement of earth by a person in the
vicinity of the facility, other than movement by tillage that does not exceed
a depth of 16 inches. In addition, by adopting the new rules in Chapter 18,
the Commission is implementing the authority delegated by and under Texas
Health and Safety Code, §756.106 (as added by Senate Bill 9, Acts 2005,
79th Leg., R. S., ch. 1337, §19, and editorially renumbered as Health
and Safety Code, §756.126). This new provision states that the Commission
shall adopt and enforce safety standards and best practices, including those
described by 49 U.S.C. §6105 et seq., relating to the prevention of damage
by a person to a facility under the jurisdiction of the Commission. With some
stated exceptions, the proposed new rules would apply to all persons engaged
in or preparing to engage in the movement of earth in the vicinity of an intrastate
underground pipeline containing flammable, toxic, or corrosive gas, a hazardous
liquid, or carbon dioxide. Texas Natural Resources Code, §81.0531, and
Texas Utilities Code, §121.206, require the Commission by rule to adopt
guidelines to be used in determining the amount of the penalty for a violation
of a provision of a statute or a rule that relates to pipeline safety. The
guidelines must include a penalty calculation worksheet that specifies the
typical penalty for certain violations, circumstances justifying enhancement
of a penalty and the amount of the enhancement, and circumstances justifying
a reduction in a penalty and the amount of the reduction. The guidelines must
also take into account: (1) the permittee's history of previous violations,
including the number of previous violations; (2) the seriousness of the violation
and of any pollution resulting from the violation; (3) any hazard to the health
or safety of the public; (4) the degree of culpability; (5) the demonstrated
good faith of the person charged; and (6) any other factor the Commission
considers relevant.
Texas Natural Resources Code, §§81.0531 and 117.012; Texas Utilities
Code, §§121.201 and 121.206; and Texas Health and Safety Code, §756.126,
are affected by the proposed new rules.
Statutory authority: Texas Natural Resources Code, §§81.0531
and 117.012; Texas Utilities Code, §§121.201 and 121.206; and Texas
Health and Safety Code, §756.126.
Cross-reference to statute: Texas Natural Resources Code, §§81.0531
and 117.012; Texas Utilities Code, §§121.201 and 121.206; and Texas
Health and Safety Code, §756.126.
Issued in Austin, Texas, on May 30, 2007.
§18.1.Scope, Applicability, and General Provisions.
(a) This chapter implements the authority of the Railroad Commission
of Texas (Commission) under Texas Natural Resources Code, §117.012, and
Texas Utilities Code, §121.201 (as amended by House Bill 2161, Acts 2005,
79th Leg., R.S., ch. 267, §§6 and 13, eff. Sept. 1, 2005), and under
Texas Health and Safety Code, §756.106 (as added by Senate Bill 9, Acts
2005, 79th Leg., R. S., ch. 1337, §19, and editorially renumbered as
Health and Safety Code, §756.126). Except as provided in subsection (d)
of this section, this chapter applies to all persons engaged in or preparing
to engage in the movement of earth in the vicinity of an intrastate underground
pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid,
or carbon dioxide.
(b) The requirements of this chapter are based on the presumption
that an excavator will notify a notification center pursuant to, and that
a pipeline operator will respond in accordance with, the provisions of Texas
Utilities Code, Chapter 251, and the requirements of the notification center.
However, compliance with the provisions of Texas Utilities Code, Chapter 251,
and the requirements of a notification center does not necessarily constitute
compliance with the requirements of this chapter.
(c) Persons that are exempt from the provisions of Texas Utilities
Code, Chapter 251, are required to comply with this chapter, unless the person
is exempt under the subsection (d) of this section.
(d) This chapter does not apply to:
(1) the exemptions in Texas Utilities Code, §251.003;
(2) the movement of earth that does not exceed a depth of 16 inches;
(3) surface mining operations;
(4) the following activities when performed by an employee
of TxDOT within TxDOT right-of-way:
(A) sampling and repair of pavement, base, and subgrade;
(B) repair of roadway embankment adjacent to pavement structure;
(C) reshaping of unpaved shoulders and drop-offs;
(D) installation and maintenance of guardrails, cable barriers,
delineators, vehicle attenuators, sign posts, mailboxes, and cables for traffic
signals and luminaries;
(E) cleaning of ditches; and
(F) removal of silt from culverts; or
(5) hand digging by an employee or contractor of TxDOT for
TxDOT's archeological program.
(e) This chapter also applies to movement of earth by tillage
that exceeds a depth of 16 inches.
(f) Unless otherwise specified, all time periods used in this
chapter shall be calculated from the time the original notification is given
to the notification center.
(g) Unless otherwise specified, all time periods that are stated
in days shall mean working days.
(h) Unless an excavator and an operator otherwise expressly
agree in accordance with the requirements set forth in §18.3 of this
title, relating to Excavator Notice to Notification Center, the life of a
line locate ticket shall be 14 days.
(i) Unless otherwise expressly stated in this chapter, each
excavator and each operator shall retain required records for at least four
years. At a minimum, each operator and each excavator shall retain locate
tickets and positive response notifications. Retention at a notification center
is an acceptable method of retention for locate tickets.
§18.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1) Damage--Includes but is not limited to:
(A) defacing, scraping, displacement, penetration, destruction,
or partial or complete severance of an underground pipeline or of any protective
coating, housing, or other protective device of an underground pipeline;
(B) weakening of structural or lateral support of an underground
pipeline that affects the integrity of the pipeline; or
(C) failure to properly replace the backfill surrounding an
underground pipeline.
(2) Demolish or demolition--Any operation by which a structure
or mass of material is wrecked, razed, rendered, moved, or removed by means
of any tools, equipment, or discharge of explosives.
(3) Emergency--A situation that endangers life, health, or
property or a situation in which the public need for uninterrupted service
and immediate re-establishment of service if services are interrupted compels
immediate action.
(4) Excavate--Movement of earth by any means.
(5) Excavator--A person that engages in or is preparing to
engage in the movement of earth.
(6) Hand digging--Any movement of earth using non-mechanized
tools or equipment, soft digging, or vacuum excavation. Hand digging includes
but is not limited to digging with shovels, picks, and manual post hole diggers.
(7) Legal holiday--A holiday specified as a legal holiday by
Subchapter B, Chapter 662, Texas Government Code.
(8) Locate or marking--An operator's or its contract locator's
physical demarcation of the location of an underground pipeline.
(9) Locate ticket, line locate ticket, or ticket--The record
of the notice of intent to excavate given by an excavator to a notification
center in conformance with Texas Utilities Code, §§251.151 and 251.152.
(10) Locator--A person charged with determining and marking
the approximate horizontal location of underground pipeline that may exist
within an area either specified by a notice served on a notification center
or designated by white-lining.
(11) Movement of earth--Any operation in which earth, rock,
or other material in the ground, any structure, or any mass of material is
moved, removed, disturbed, or otherwise displaced by hand digging, mechanized
equipment or tools of any kind, or explosives, and includes but is not limited
to augering, backfilling, boring, cable or pipe plowing and driving, compressing,
cutting, demolition, digging, ditching, dragging, dredging, drilling, grading,
plowing-in, pulling-in, razing, rendering, ripping, scraping, tilling of earth
at a depth exceeding 16 inches, trenching, tunneling, or wrecking.
(12) Mechanized equipment or tool--A piece of equipment or
a tool operated by mechanical power, including but not limited to a tractor,
trencher, bulldozer, power shovel, auger, backhoe, scraper, drill, cable or
pipe plow and/or driver, and other equipment used to plow in or pull in cable
or pipe.
(13) Notification center--A legal entity established and operated
pursuant to Texas Utilities Code, Chapter 251, Subchapter C.
(14) Notify, notice, or notification--The completed delivery
of information to the person to be notified, and the receipt of that information
by that person in accordance with this chapter. The delivery of information
includes but is not limited to the use of any electronic or technological
means of data transfer.
(15) Operator--A person who operates on his or her own behalf,
or as an agent designated by the owner, a pipeline containing flammable, toxic,
or corrosive gas, a hazardous liquid, or carbon dioxide.
(16) Person--Any individual, operator, firm, joint venture,
partnership, corporation, association, municipality, or other political subdivision,
governmental unit, department or agency, and includes any trustee, receiver,
assignee, or personal representative thereof.
(17) Positive response--Notification to an excavator by markings
left at an excavation site, or by fax, phone, e-mail, pager, or written correspondence
that allows an excavator to know prior to the beginning of excavation that
underground pipelines have been located and marked or that there are no underground
pipelines in the vicinity of the excavation.
(18) Soft digging--Any movement of earth using tools or equipment
that use air or water pressure as the direct means to break up soil or earth
for removal by vacuum excavation.
(19) Spot marking--Making a circle around the spot where excavation
is to take place, typically used when standard marking techniques would be
considered damaging to property or cannot be used because of limited space.
(20) Tillage--The manipulation of soil in preparation for planting
and the cultivation by loosening or breaking up of soil around growing plants
by hand digging or by use of a moldboard, disk, rotary, chisel or subsoil
plow, a cultivator, a harrow, or a tiller.
(21) Tolerance zone--Half the nominal diameter of the underground
pipeline plus a minimum of 18 inches on either side of the outside edge of
the underground pipeline on a horizontal plane.
(22) TDRF--The Texas Damage Reporting Form, the on-line reporting
system of the Railroad Commission for use in reporting damage to underground
pipelines or violations of this chapter.
(23) Underground pipeline--A pipeline containing flammable,
toxic, or corrosive gas, a hazardous liquid, or carbon dioxide that is located
partially or totally underground.
(24) White-lining--An excavator's designation on the ground
of the area to be excavated using white paint, white flags, white stakes,
or any combination of these.
(25) Working day--Every day that is not a Saturday, a Sunday,
or a legal holiday.
§18.3.Excavator Notice to Notification Center.
(a) An excavator shall request the location of underground
pipelines at each excavation site by giving notice to the notification center
as required by Texas Utilities Code, Chapter 251.
(b) An excavator shall include in the notice the method or
methods by which the excavator will receive a positive response.
(c) When an excavation site cannot be clearly identified and
described on a line locate ticket, the excavator shall use white-lining to
mark the excavation area prior to giving notice to the notification center
and before the locator arrives on the excavation site.
(d) If an excavation project is too large to mark using white-lining
or is so expansive that a full description cannot be provided on a line locate
ticket, then the operator and the excavator shall conduct a face-to-face meeting
to discuss the excavation activities and to establish protocols for:
(1) the interval between each notice to the notification center;
(2) the scope of each line locate ticket;
(3) the life of each line locate ticket; and
(4) the schedule of work on the excavation and the chronological
order in which applicable locate tickets are to be marked.
(e) If an excavation project is not completed at the time a
line locate ticket expires, the excavator shall refresh the ticket by giving
the notice described in subsection (a) of this section. A request to refresh
shall be limited to the area yet to be excavated.
(f) An excavator and an operator may agree that the life of
a line locate ticket is more than 14 days provided that:
(1) the agreement is in writing; and
(2) the agreement is signed and dated by both the excavator
and the operator.
(g) Both the excavator and the operator shall retain a copy
of any agreement made pursuant to subsection (f) of this section.
§18.4.Excavator Obligation to Avoid Damage to Underground Pipelines.
(a) An excavator shall comply with the requirements of §18.3
of this title, relating to Excavator Notice to Notification Center. An excavator
shall also comply with the requirements of Texas Health & Safety Code,
Subchapter H, relating to Construction Affecting Pipeline Easements and Rights-of-Way,
and shall plan an excavation in such a manner as to avoid damage to and minimize
interference with all underground pipelines in the vicinity of the excavation
area and shall take all reasonable steps to protect underground pipelines
from damage.
(b) An excavator shall wait the time required by Texas Utilities
Code, Chapter 251, before beginning excavation.
(c) Prior to excavation, an excavator shall confirm that a
copy of a valid locate ticket for the location is in the possession of the
excavator's designated representative and can be obtained from the representative
or can be provided within one hour of a request from the operator or the Commission.
(d) Prior to excavation, an excavator shall verify that it
is at the correct location as specified on the locate ticket; shall verify
white-lining; and, to the best of the excavator's ability, shall make a visual
check for any unmarked underground pipelines. Checking for unmarked underground
pipelines includes, but is not limited to, looking for additional pipeline
line markers, such as painted fence post-type markers, aboveground pipeline
valves, meter sets, regulator stations, or rectifier units.
(e) An excavator shall not begin excavating until a second
notice is given to the notification center for the area if:
(1) the excavator has knowledge of the existence of an underground
pipeline and has received an "all clear" or a "no conflict" response from
an operator;
(2) the excavator observes clear evidence (such as a line marker
or an above-ground fixture) of the presence of an unmarked underground pipeline
in the area of the proposed excavation, and has received an "all clear" or
a "no conflict" response from an operator;
(3) there is no positive response for the excavation area; or
(4) the positive response is unclear or obviously erroneous
(for example, for a different location or for a different type of underground
facility).
(f) If an excavator has given a second notice in accordance
with this section and there is no positive response within four hours, the
excavator may begin excavating.
(g) An excavator shall protect and preserve locate markings
from the time the excavator begins work until markings are no longer required
for the proper and safe excavation in the vicinity of all underground pipelines.
(h) Each excavator that damages an underground pipeline shall
notify the operator of the damage through the notification center immediately
but not later than two hours following the damage incident. An excavator that
damages an underground pipeline shall not cover the exposed pipeline without
approval of the operator.
§18.5.Operator and Excavator Obligations with Respect to Positive Response.
(a) Upon being contacted by the notification system, an operator
shall provide a positive response within the time frames specified in Texas
Utilities Code, Chapter 251, by either:
(1) marking the operator's underground pipelines in accordance
with the requirements of Texas Utilities Code, Chapter 251, and this chapter; or
(2) notifying the excavator that the operator has no underground
pipelines in the vicinity of the proposed excavation area. The operator shall
provide this "all clear" or "no conflict" notice using the method or methods
that the excavator specified in accordance with §18.3 of this title,
relating to Excavator Notice to Notification Center.
(b) Both the excavator and the operator shall make a record
of the positive response regarding each line locate ticket received.
(c) An excavator that gives a second notice to the notification
center pursuant to §18.4(e) of this title, relating to Excavator Obligation
to Avoid Damage to Underground Pipelines, because an operator failed to provide
a positive response to an excavator shall report that fact to the Commission
through TDRF as set forth in §18.11 of this title, relating to Reporting
Requirements. An excavator shall also report an operator's failure to provide
a positive response to a second call to the Commission through TDRF as specified
in §18.11.
(d) An operator that receives a notice of damage to its underground
pipeline through a notification center pursuant to §18.11(b) of this
title, relating to reporting requirements, shall respond within four hours.
§18.6.General Marking Requirements.
(a) At a minimum, all markings shall conform to the requirements
of American Public Works Association (APWA) Uniform Color Code (ANSI Standard
Z535.1, Safety Color Code).
(b) Markings shall be valid for an excavation site for 14 days
from the time a positive response is given, unless the markings were placed
in response to an emergency and the emergency condition has ceased to exist.
If a line locate ticket has been refreshed pursuant to §18.3(e) of this
title, relating to Excavator Notice to Notification Center, then the operator
shall either ensure that markings are still visible and valid or shall re-mark.
(c) If the use of line marking may permanently damage property
(driveways, landscaping, historic locations to the extent boundaries are known),
a locator shall use spot marking or another suitable marking method or methods.
§18.7.Excavator Marking Requirements.
(a) Prior to giving notice pursuant to §18.3 of this title,
relating to Excavator Notice to Notification Center, an excavator shall mark,
if applicable according to §18.3(c), the specific excavation area using
white paint flags, or stakes, whichever is most visible for the terrain.
(b) An excavator shall mark the area of excavation using intervals
that show the direction of the excavation.
§18.8.Operator Marking Requirements.
(a) A locator shall use all information necessary to mark underground
pipelines accurately.
(b) Locators shall mark the approximate center line of an underground pipeline.
(c) If, in the process of marking an underground pipeline,
a locator discovers a customer-owned underground pipeline, the locator shall
make a reasonable effort to advise the excavator of the presence of the customer-owned
underground pipeline.
(d) Where a proposed excavation crosses an underground pipeline,
markings shall be at intervals that clearly define the route of the underground
pipeline, to the extent possible.
(e) A locator shall mark underground pipelines by means of
stakes, paint, flags, or a combination of two or more of these. The terrain,
site conditions, and type and extent of the proposed excavation shall be considered
in determining the most suitable means for marking underground pipelines.
(f) A locator shall mark at sufficient intervals to indicate
clearly the approximate horizontal location and direction of the underground
pipeline or pipelines. The distance between any two marks indicating the same
line shall not exceed 20 feet; however, a shorter distance between marks may
be necessary because of site conditions or directional changes of the underground
pipeline.
(g) Markings of an underground pipeline greater than six inches
in nominal outside dimension shall include the size in inches at every other
mark.
(h) A locator shall extend all markings, if practical, at least
one additional mark beyond the boundaries of the specific location of the
proposed work as detailed on the line locate ticket.
(i) A locator shall make paint marks approximately eight to
ten inches in length and one to two inches in width except when spot marking
is necessary. A locator shall make a minimum of three separate marks for each
underground pipeline marking.
§18.9.Options for Managing an Excavation Site in the Vicinity of an Underground Pipeline.
(a) After complying with the notice requirements of §18.3
of this title, relating to Excavator Notice to Notification Center, an excavator
and an operator may jointly establish the protocols applicable to an excavation
site in the vicinity of underground pipelines based on the particular characteristics
of each job. The protocols applicable to an excavation site may:
(1) designate the contact person or persons for each entity
working at an excavation site;
(2) establish the required mode or modes of communication among
all entities working at an excavation site, e.g., telephone or other electronic
means or face-to-face meetings at prescribed times or intervals;
(3) provide the method for coordinating work activities among
all entities working at an excavation site;
(4) provide for the ownership and/or possession of the locate
ticket or tickets;
(5) declare which entity or entities must have the locate ticket
or locate ticket number before beginning work;
(6) state the life of a locate ticket and the circumstances
that require refreshing the locate ticket;
(7) state the schedule of work on the excavation and, if applicable,
the chronological order in which applicable locate tickets are to be located;
(8) designate the extent of the tolerance zone, provided that
it shall not be less than half the nominal diameter of the underground pipeline
plus a minimum of 18 inches on either side of the outside edge of the underground
pipeline on a horizontal plane and the type of excavation permitted within
the tolerance zone; and
(9) provide for any other agreement with respect to excavation
activities and/or marking requirements that will or will tend to ensure the
proper and safe excavation in the vicinity of an underground pipeline.
(b) If an excavator and an operator jointly establish protocols
pursuant to this section, both the excavator and the operator shall make and
retain a record of the agreement.
§18.10.Excavation within Tolerance Zone.
(a) An excavator shall comply with the requirements of Texas
Health & Safety Code, Subchapter H, relating to Construction Affecting
Pipeline Easements and Rights-of-Way.
(b) When excavation is to take place within the specified tolerance
zone, an excavator shall exercise such reasonable care as may be necessary
to prevent damage to any underground pipeline in or near the excavation area.
Methods to consider, based on certain climate or geographical conditions,
include hand digging when practical, soft digging, vacuum excavation methods,
pneumatic hand tools. Other mechanical methods or other technical methods
that may be developed may be used with the approval of the underground pipeline
operator. Hand digging and non-invasive methods are not required for pavement
removal.
§18.11.Reporting Requirements.
(a) Each operator of an underground pipeline shall report to
the Commission all damage to its pipelines caused by an excavator. Within
10 days of the damage incident or of the operator's actual knowledge of the
damage incident, an operator shall submit the information to the Commission
through TDRF, which may be accessed at http://www.rrc.state.tx.us/formpr/index.html
using its assigned operator identification code.
(b) Each excavator that damages an underground pipeline shall
notify the operator of the damage through the notification center immediately
but not later than two hours following the damage incident. The excavator
shall also submit report of the damage incident to the Commission using TDRF,
which may be accessed at http://www.rrc.state.tx.us/formpr/index.html and
the excavator sign-in, within 10 days of the incident.
(c) Each excavator that makes an additional call to the notification
center pursuant to §18.4(e) of this title, relating to Excavator Obligation
to Avoid Damage to Underground Pipelines, because the excavator did not receive
a positive response, shall report that fact to the Commission through TDRF.
An excavator shall also report an operator's failure to provide a positive
response to a second call to the Commission through TDRF.
(d) An emergency response official, a member of the general
public, or another person aware of damage to an underground pipeline is encouraged
to submit an incident form using TDRF, which can be accessed at http://www.rrc.state.tx.us/formpr/index.html.
Entries can be made through the general public or emergency response official
sign-in.
§18.12.Penalty Guidelines.
(a) The penalty amounts shown in the table in this section
are provided solely as guidelines to be considered by the Commission in determining
the amount of administrative penalties for violations of the requirements
of this chapter. The establishment of these penalty guidelines shall in no
way limit the Commission's authority and discretion to assess administrative
penalties in any amount up to the statutory maximum when warranted by the
facts in any case.
(b) The amount of any penalty requested, recommended, or finally
assessed in an enforcement action will be determined on an individual case-by-case
basis for each violation, taking into consideration the following factors:
(1) the person's history of previous violations or formal warnings,
including the number of previous violations or formal warnings;
(2) the seriousness of the violation and of any pollution resulting
from the violation;
(3) any hazard to the health or safety of the public;
(4) the degree of culpability;
(5) the demonstrated good faith of the person charged; and
(6) any other factor the Commission considers relevant, including
but not limited to the number of locate requests received and responded to
by an operator and the number of location notifications given by an excavator
in the previous year.
(c) The recommended monetary penalty for a violation may be
reduced by up to 50% if the person charged agrees to a settlement before the
Commission conducts an administrative hearing to prosecute a violation. Once
the hearing is convened, the opportunity for the person charged to reduce
the basic monetary penalty is no longer available. The reduction applies to
the basic monetary penalty amount requested and not to any requested enhancements.
(d) In determining the total amount of any monetary penalty
requested, recommended, or finally assessed in an enforcement action, the
Commission may consider, on an individual case-by-case basis for each violation,
the demonstrated good faith of the person charged. Demonstrated good faith
includes but is not limited to actions taken by the person charged before
the filing of an enforcement action to remedy, in whole or in part, a violation
of the rules in this chapter or to mitigate the consequences of a violation
of the rules in this chapter.
(e) Depending upon the nature of and the consequences resulting
from a violation of this chapter, the Commission may impose a non-monetary
penalty, such as requiring attendance at a safety training course, or may
issue a warning.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 1, 2007.
TRD-200702133
Mary Ross McDonald
Managing Director
Railroad Commission of Texas
Effective date: September 1, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 475-1295
Chapter 26. SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter J. COSTS, RATES AND TARIFFS
The Public Utility Commission of Texas (commission) adopts
amendments to §26.223, relating to the Prohibition of Excessive COA/SPCOA
Usage Sensitive Intrastate Switched Access Rates with changes to the proposed
text as published in the February 9, 2007, issue of the Texas Register
(32 TexReg 494). The amendments are necessary to harmonize
the impact of changes in incumbent local exchange carrier (ILEC) access charges
mandated by Chapter 65 of the Public Utility Regulatory Act (PURA) with the
commission's re-calculation of the weighted statewide average composite usage
sensitive intrastate switched access rates as required under §26.223.
Chapter 65 requires that the large ILECs that have chosen to transition to
deregulation substantially reduce their minute of use rates (in the aggregate)
associated with intrastate switched access each year for three successive
years. Under PURA §65.202, a transitioning ILEC is required to reduce
its intrastate switched access rates by approximately one third of the difference
between the switched access rates it charges for intrastate minutes of use
and interstate minutes of use. Such ILEC is required to make such reductions
each year on July 1, beginning on July 1, 2006. Harmonizing PURA Chapter 65
with §26.223 will ultimately prohibit a competitive carrier that chooses
to adopt these statewide average composite switched access rates from charging
excessive usage sensitive switched access rates.
The amendments to §26.223 will require an annual, instead of a biennial,
re-calculation of weighted statewide average composite usage sensitive intrastate
switched access rates until June 2010, and a biennial re-calculation thereafter.
The amendments will also change the timeline for completion of the task of
developing new statewide average rates, will establish new dates for submission
of certificate of convenience and necessity (CCN) holder access charge information
necessary to calculate the rates, and will establish new due dates for industry
compliance submissions associated with the re-calculation of the statewide
average composite usage sensitive switched access rates. Additionally, unnecessary
or outdated sections related to the initial implementation of this rule have
been deleted. The amendments to §26.223 provided herein are adopted under
Project Number 33060.
The commission received written comments on its proposals for amendments
from Southwestern Bell Telephone, L.P. d/b/a AT&T Texas (AT&T Texas)
on March 12, 2007. No other comments or replies to comments were received
by the commission.
AT&T Texas fully supports the amendments to §26.223. AT&T
Texas offered two minor modifications for clarification purposes only.
§26.223(e)(1)(E)
Subsection (e)(1)(E) delineates the conversion of revenues from monthly
rate elements to minute of use (MOU) rates. Regarding the submission of MOU
information, AT&T Texas recommends that the word "local" be inserted in
front of the words "switching MOUs" in the first sentence of this subsection
such that it would read as follows:
Additional revenues submitted under subsection (g)(8) for monthly rate
elements associated with switched access shall be converted to MOU rates using
the local switching MOUs provided by the CCN holder.
AT&T Texas indicates that the addition is necessary in order to make
clear that the process will utilize the local switching MOUs as opposed to
the tandem switching MOUs.
Commission response
The commission believes that AT&T Texas's clarification is consistent
with the current practice used by staff in the development of the statewide
average rates. Therefore, the commission agrees that the minor clarification
is appropriate and adopts AT&T Texas's suggestion.
§26.223(g)(7)
Subsection (g)(7) addresses the total actual originating and terminating
MOU data that ILECs are required to provide to the commission for the re-calculation
of the statewide average rates, AT&T Texas recommends that the words "that
is billed on an MOU basis" be added at the end of this subsection so that
it would read as follows:
The total actual originating and terminating MOU for the most recent 12-month
period (August 1 through July 31) for each rate element in paragraphs (1)
- (6) of this subsection that is billed on an MOU basis.
AT&T Texas indicates that the additional wording is necessary because
some of the rate elements listed in paragraphs 1 through 6 are not billed
by AT&T Texas on an MOU basis (i.e., those
elements billed on a monthly, non-usage sensitive basis). AT&T Texas further
indicates that for those rate elements that are billed on a monthly, non-usage
sensitive basis, AT&T Texas and other ILECs will be providing revenue
data and units pursuant to the process outlined in subsection (g)(8).
Commission response
The commission believes that AT&T Texas's clarification is consistent
with the current practice used by staff in the development of the statewide
average rates for switched access. Therefore, the commission agrees that the
minor clarification is appropriate and adopts AT&T Texas's suggestion.
In adopting these sections, the commission makes other minor, non-substantive
modifications for the purpose of clarifying its intent.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052, and specifically,
PURA §52.155 which grant(s) the commission all jurisdiction necessary
to enforce the prohibition of excessive access charges and PURA Chapter 65,
Subchapter E, that relates to the reduction of switched access rates by transitioning
companies.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
15.052, 52.155, and 65.201 - 65.203.
§26.223.Prohibition of Excessive COA/SPCOA Usage Sensitive Intrastate Switched Access Rates.
(a) Purpose. The purpose of this section is to implement Public
Utility Regulatory Act (PURA) §52.155, which addresses the usage sensitive
intrastate switched access rates that can be charged by a telecommunications
utility that holds a certificate of operating authority (COA) or a service
provider certificate of operating authority (SPCOA) (COA/SPCOA).
(b) Applicability. This section applies to usage sensitive
intrastate switched access rates of COA/SPCOA holders, including but not limited
to, originating and terminating carrier common line (CCL), originating and
terminating local switching (LS), originating and terminating switched transport
(TR), originating and terminating tandem switching (TS), and originating and
terminating tandem switched transport (TST).
(c) Requirements for COA/SPCOA usage sensitive intrastate switched
access rates. A telecommunications utility that holds a COA or a SPCOA may
not charge a higher aggregate amount, including any rate elements not charged
by the holder of the certificate of convenience and necessity (CCN), for originating
or terminating usage sensitive intrastate switched access than the prevailing
rates charged by the CCN holder or the holder of a COA issued under Chapter
65 in whose territory the call originated or terminated unless:
(1) the commission specifically approves the higher rate; or
(2) subject to commission review, the telecommunications utility
establishes statewide average composite originating and terminating usage
sensitive intrastate switched access rates based on a reasonable approximation
of traffic originating and terminating between all holders of certificates
of convenience and necessity in this state.
(d) Governance of Switched Access Rates under PURA Chapter
65. Notwithstanding subsection (c), PURA Chapter 65 governs the switched access
rates of a company that holds a COA issued under PURA Chapter 65.
(e) Statewide average composite rates. Weighted statewide average
composite usage sensitive intrastate switched access rates will be developed
based upon the submission of CCN holders' compliance filings pursuant to subsection
(g) of this section.
(1) Methodology. The commission shall use the following information
and methodology for development of the weighted statewide average composite
usage sensitive intrastate switched access rates separately for each originating
and for each terminating rate element category in subsection (g)(1) - (6)
of this section:
(A) Each CCN holder's individual rate elements' rates will
be multiplied by the total actual minutes of use (MOUs) for that rate element,
producing a total revenue for each rate element for each CCN holder.
(B) Revenues for each CCN holder's rate element will be added
to create a statewide total revenue for that rate element.
(C) The actual MOUs for each CCN holder's rate element will
be added to create a statewide total actual MOUs for that rate element.
(D) The statewide total revenue for that rate element will
be divided by the statewide total actual MOUs for that rate element, producing
a weighted statewide average composite usage sensitive intrastate switched
access rate for that switched access rate element.
(E) Additional revenues submitted under subsection (g)(8) of
this section for monthly rate elements associated with switched access shall
be converted to MOU rates using the local switching MOUs provided by the CCN
holder. The converted MOU rates shall be used to revise the weighted statewide
average composite usage sensitive intrastate switched access rates calculated
pursuant to subparagraph (D) of this paragraph.
(2) Re-calculation.
(A) The commission shall re-calculate the weighted statewide
average composite usage sensitive intrastate switched access rates annually
until June, 2010 based upon the submissions of the CCN holders, as required
in subsection (g) of this section. The commission shall endeavor to complete
such re-calculation by November 15 of each year.
(B) Any certificated telecommunications utility may file a
petition requesting that the commission re-calculate the weighted statewide
average composite usage sensitive intrastate switched access rates at any
time. The commission shall grant the petition for re-calculation if it concludes
that the petition has provided just cause for re-calculation.
(C) As provided in subsection (g) of this section, the commission
may also require compliance submissions by CCN holders for re-calculation
of the weighted statewide average composite usage sensitive intrastate switched
access rates as appropriate because of significant changes in usage sensitive
intrastate switched access rates or in response to the request of affected
parties, as specified in subparagraph (B) of this paragraph.
(D) After June 2010, the commission shall re-calculate the
weighted statewide average composite usage sensitive intrastate switched access
rates biennially. The commission shall endeavor to complete such re-calculation
by November 15.
(f) Approval of higher rates.
(1) A COA/SPCOA holder seeking approval of originating and/or
terminating usage sensitive intrastate switched access rates that in the aggregate,
including any rate elements not charged by the CCN holder, are higher than
the aggregate of the originating and/or terminating usage sensitive switched
access rate elements charged by the CCN holder in the COA/SPCOA's territory
may do so by filing an application with the commission subject to the procedures
outlined in Procedural Rule §22.33 of this title (relating to Tariff
Filings). The COA/SPCOA's application must provide, at a minimum, the following
information:
(A) Cost justification for each rate element.
(B) Rationale for implementation of the higher rate for each rate element.
(2) A COA/SPCOA holder's application must address all of the
applicable switched access rate elements in subsection (b) of this section.
(3) The commission shall publish notice of the application
in the Texas Register.
(g) Requirement for CCN holders compliance submissions. Until
June, 2010, all CCN holders must provide the following intrastate data to
the commission as a compliance filing on an annual basis; and as of June,
2010 and thereafter on a biennial basis, by September 15:
(1) The current tariffed rate for originating and terminating CCL.
(2) The current tariffed rate for originating and terminating LS.
(3) The current tariffed rate for originating and terminating TR.
(4) The current tariffed rate for originating and terminating TS.
(5) The current average per minute rate for originating and
terminating TST.
(6) The current originating and terminating tariffed rate(s)
for any other usage sensitive intrastate switched access rate element(s).
(7) The total actual originating and terminating MOUs for the
most recent 12-month period (August 1 through July 31) for each rate element
in paragraphs (1) - (6) of this subsection that is billed on an MOU basis.
(8) The total revenues for the most recent 12-month period
(August 1 through July 31) received from any switched access monthly rate
element used to transport or switch the access traffic listed in paragraphs
(1) - (6) of this subsection that may be specifically attributable to the
element identified (
e.g.
, local switching,
transport).
(h) Requirements of COA/SPCOA holders compliance submissions.
(1) No later than 20 days after the effective date of the commission
order re-calculating the weighted statewide average composite usage sensitive
switched access rates, COA/SPCOA holders shall:
(A) file an application under subsection (f) of this section; or
(B) file compliance tariffs/price lists to be effective 10
days from the filing date of the compliance tariffs/price lists containing
originating and terminating usage sensitive intrastate switched access rates
that do not exceed the prevailing rates charged by the CCN holder in each
territory in which the COA/SPCOA holder operates; or
(C) file compliance tariffs/price sheets with originating and
terminating usage sensitive intrastate switched access rates that do not exceed
the re-calculated weighted statewide average composite usage sensitive switched
access rates established by the commission to be effective 10 days from the
filing date of the compliance tariffs/price sheets; or
(D) file a letter with the commission demonstrating that no
rate revisions are necessary in order to comply with this section.
(2) If a COA/SPCOA holder establishes usage sensitive intrastate
switched access rates pursuant to paragraph (1)(B) of this subsection and
the underlying CCN holder(s) whose rates were the basis for the COA/SPCOA
holder's usage sensitive intrastate switched access rates are modified, no
later than 20 days after said CCN holder's rates are modified, the COA/SPCOA
holder shall:
(A) file an application under subsection (f) of this section; or
(B) file compliance tariffs/price lists to be effective 10
days from the filing date of the compliance tariffs/price lists containing
originating and terminating usage sensitive intrastate switched access rates
that do not exceed the prevailing rates charged by the CCN holder in each
territory in which the COA/SPCOA holder operates; or
(C) file compliance tariffs/price sheets with originating and
terminating usage sensitive intrastate switched access rates that do not exceed
the most recent commission established weighted statewide average composite
usage sensitive switched access rates established by the commission to be
effective 10 days from the filing date of the compliance tariffs/price sheets; or
(D) file a letter with the commission demonstrating that no
rate revisions are necessary in order to comply with this section.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on May 31, 2007.
TRD-200702122
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: June 20, 2007
Proposal publication date: February 9, 2007
For further information, please call: (512) 936-7223
Part 2. PUBLIC UTILITY COMMISSION OF TEXAS