United States. Congress. House. Committee on Publi.

Comprehensive One-Call Notification Act of 1994 : hearing before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, One Hundred Third Congress, second session, September 22, 1994 online

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Online LibraryUnited States. Congress. House. Committee on PubliComprehensive One-Call Notification Act of 1994 : hearing before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, One Hundred Third Congress, second session, September 22, 1994 → online text (page 3 of 7)
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(B) If the response to (A) is in the affirmative, does the
Department believe the proposed time-frame for the
establishment of the nationwide toll-free telephone number is
adequate and could be undertaken without an additional budget
request?

(C) If the response to (A) is in the affirmative, does the
Department think it appropriate to implement section 3 of the
bill in consultation with the Federal Communications
Commission?

ANSWER :

While it is somewhat unclear from the provision on the national
one-call number what type of notification scheme is intended, we do
not believe that a single number to be used by all excavators
nationwide is necessary. A national number could be used as a
backup where an excavator may not know the number for a state in
which he or she intends to dig. In that case, the national number
could transfer the caller to the appropriate number in the state of
intended excavation. The one year allowed in the bill for setting
up the national number is sufficient, and the Department would
include within its national one-call enhancement strategy public
awareness of this number as well as the state-specific one-call
numbers. We do not believe that we would have to involve the
Federal Communications Commission to achieve a national number as
described above.



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QUESTION 4 :

Section 4(b) of the substitute would establish a grant program to
States or operators of one-call notification systems to facilitate
compliance with the standards established under the legislation.
Funding for the grants is proposed to be derived from amounts
previously collected, but not yet appropriated, pursuant to section
7005 of the Consolidated Omnibus Budget Reconciliation Act of 1985
(pipeline user fees) .

Does the Department believe this is an appropriate source of funds
for the proposed grant program, and if not, does the Department
have any thoughts on alternative sources of funding?

ANSWER:

We believe that the unappropriated balance in the pipeline safety
fund is an appropriate source for grants to enhance one-call
systems. As the single leading cause of pipeline failures, third
party damage and its prevention is a core issue for the pipeline
industry and the Department. Pipeline operators have been in the
forefront of one-call development and will benefit directly from
improved systems. The funding available in the fund offers an
opportunity to provide meaningful incentives in those states where
substantial improvement in the one-call program is necessary.
These incentives, coupled with the principles advanced in the bill,
are the cornerstone of the bill and its best opportunity to be
successful .



14



QUESTION 5:

Section 4 (c) of the substitute provides for a means to insure State
compliance with requirements of the legislation. Does the
Department support this provision on the bill, and if not, does the
Department have a proposed alternative means to insure compliance?

ANSWER':

The Department does not support this provision, which would induce
state compliance with the bill by authorizing the right of the
Secretary or a citizen to sue a state to compel compliance. The
bill's mandate to the states to adopt one-call programs, without a
choice to participate or not, may violate the 10th Amendment to the
Constitution. The provision in section 4 (c) only adds another
element to the coercion and is not likely to motivate the states to
continue the growth and improvement in one-call that has been
experienced over the last several years.

Using the language in the Public Utility Regulatory Policy Act
(which has withstood Constitutional challenge) as a model, the bill
could require states to formally consider adoption of those
standards prescribed in the bill necessary for a state to bring its
program into compliance; the states would not be bound to adopt
them, thereby presenting a less significant 10th Amendment issue.
However, any state that certified to the Secretary that it was
pursuing a plan that would incorporate the pertinent requirements
in the bill, and submitted a formal written plan to the Secretary
to accomplish that result, would be eligible for grant funding
under Section 4 (b) . This incentive approach, coupled with the
Department's national strategy to encourage adoption of the bill's
model program, would provide a meaningful incentive for states to
improve their one-call programs.



15



QUESTION 6 :

Section 5 of the substitute sets forth required elements of a State
program. Does the Department support the prescriptive nature of
this provision?

ANSWER :

The answer to Question 5 concerning the 10th Amendment is relevant
to this question as well. In addition, we believe that while the
section captures the essential elements of an effective one-call
program, these elements should be merged with the elements of the
model program in section 7(b) . This would clarify and enhance the
effectiveness of the bill.



84-479 - 94 - 3



16



QUESTION 7 :

Section 6(b) of the substitute provides for increased penalties for
damages to underground facilities. Does the Department believe the
proposed thresholds (in excess of $50,000 for property damages and
in excess of 50 barrels of hazardous liquid release) are
appropriate thresholds?

ANSWER :

For purposes of imposing penalties for striking and damaging
natural gas and hazardous liquid pipeline facilities, the
thresholds are appropriate, and reflect the current accident
reporting thresholds for pipeline operators. However, we do not
know whether they are adequate for other underground facilities.
In fact, the only threshold that would seem to apply would be the
dollar level of $50,000, and we simply do not know if that is
appropriate for sewer, fiber optics, electrical, or other
facilities .



17



QUESTION 8 :

Does the Department support the substitute's provisions requiring
it to establish a model State program?

ANSWER :

Yes. We believe this is relevant to our mission because improved
one-call notification systems are the best means to reduce the
incidence of excavation damage, the single leading cause of
pipeline failures.



18

Mr. Rahall. So as I said, that answered a lot of the questions
I had. I note, however, that in your response you expressed some
concern over possible 10th amendment ramifications of certain as-
pects of the bill as reported by the Energy Committee.

As you may be aware, in the new substitute that we are now pre-
paring to consider, we are trying to take into account those con-
cerns regarding the 10th amendment. So I want to thank you and
your colleagues for taking the time to respond to those questions
and for raising that 10th amendment concern.

I do want to follow up on one item, which relates to the first
question that I posed in that letter to you. I asked whether the De-
partment supports an exemption for agricultural excavation, and if
so, whether 18 inches is the appropriate depth. Your response was
that you supported the agricultural exception, but you made no
comment on the appropriateness of the 18 inch figure.

What I am getting after is why is the figure 18 inches? Why not
10 inches? What is the figure you think would be appropriate? Do
you have any information on this?

Mr. Sharma. Mr. Chairman, if I might ask George Tenley to re-
spond to the question that you are asking about 18 inches or 10
inches.

Mr. Tenley. I apologize, Mr. Chairman. I should have answered
that question. I thought I had. Apparently I didn't. We basically
went around and polled several States that we think have effective
one-call programs and, in those States, their legislation provides an
agricultural exemption to 18 inches.

And we have found from talking with those States that there has
not been a problem with that. It has not led to unsafe conditions.
Therefore, we believe that 18 inches can be an effective threshold.

Mr. Rahall. Okay. Thank you for that.

I have one additional question which perhaps does not relate di-
rectly to the pending legislation but I think is pertinent to this
hearing. Our colleagues from Minnesota, Mr. Vento and, from New
Jersey, Mr. Pallone and Mr. Franks, have brought to my attention
their concern over RSPA's tardiness in promulgating a final rule to
require installation of excess flow values on natural gas pipelines.

This was required by the Pipeline Safety Act of 1992. Apparently
RSPA reopened the comment period on August 2 of this year. Con-
sidering this new delay, the Members that I mentioned are con-
cerned that the rulemaking process may extend well into 1995. And
this, they contend, jeopardizes public safety.

Can you address these concerns? In other words, can you expe-
dite this rulemaking and promulgate a final rule in the near fu-
ture?

Mr. Tenley. We have committed to expedite the final rule. The
rulemaking, as you pointed out, is taking a long time to get where
we are. It is a highly controversial rulemaking with good argu-
ments on both sides of the question among respected experts in
safety, industry and others.

So we felt we needed to reopen the comment period because we
received a comprehensive set of comments from a group of here-
tofore adversaries who were attempting to answer with a consensus
approach to the legislation. We thought it was meaningful and we
reopened the comment period to find out what the public thought.



19

And we will continue as a high priority issue to get that com-
pleted. I know that the NTSB is concerned about this and our Ap-
propriations Committees are concerned about this. We will move
expeditiously once the comment period closes.

Mr. Sharma. Mr. Chairman, if I might add to that, I will indeed
look into that as the new administrator and see that it is dealt
with by the administration in quick manner.

Mr. Rahall. This year?

Mr. Tenley. Well, our goal is to try to get it out by the end of
this calendar year but, again, it is a highly technical and controver-
sial subject. I have made several commitments over the years to
Members of Congress and many of them haven't come true, so I am
a little loathe to do it again. But when my new boss tells me it is
one of his high priorities, I will be acting accordingly.

Mr. Sharma. Mr. Chairman, if I may say, let me look into this.
I hear your comments, and I will see that it is done as soon as we
possibly can. And we will work with you and your staff if you have
any concerns with the timetable that we establish.

Mr. Rahall. Thank you, Dr. Sharma. Thank you Mr. Tenley.

The gentleman from Wisconsin.

Mr. Petri. I have four or five questions that I would like to sub-
mit in writing for written response if that is all right. And we are
going, to markup on Tuesday, so if you could try to get them back
right away, I would appreciate it.

Mr. Sharma. We will be happy to respond to your written ques-
tions for the record.

[The information received follows:]

Questions Submitted for the Record by Congressman Petri

Question 1. Under the provisions of the staff discussion draft to H.R. 4394, how
many states do you believe would meet the criteria for having a qualifying one-call
program in place or an alternative program at least as protective as the prescribed
State program?

Answer. Although we have not formally measured existing state programs against
the provisions in H.R. 4394, we estimate that perhaps 30 states would either meet
the criteria in the bill for having a qualifying one-call program, or would likely be
accepted by us as a qualifying alternative program.

Question 2. Do you believe the bill provides a significant enough incentive to get
the States which would not meet the criteria or qualify under the alternative pro-
gram to actively consider and adopt the elements of the required program?

Answer. The availability of grant funding, coupled with the Department's develop-
ment of the bill's model program, provides a meaningful incentive for states to im-
prove their one-call programs.

Question 3. In the 1988 Pipeline Safety Reauthorization Act, a provision required
you to set up standards for a one-call program, provided a small amount of money
for states which adopted it and authorized withholding of safety grant funds for
states which did not. How many States have had grant funds withheld as a result
of this provision? How many States received incentive funds? Please Evaluate the
effectiveness of this approach in terms of persuading States to adopt one-call sys-
tems or improve their one-call systems.

Answer. The following data, based on 1993 OPS evaluations, demonstrates the ex-
tent to which states comply with the 1988 Act (47 states, including the District of
Columbia and Puerto Rico, were in the federal/state partnership program in 1993):

11 states received no reduction in their grant, because they fully met the one-call
criteria;

15 states received some reduction, but met most of the statutory one-call criteria;
9 states received substantial reduction, but had met some of the one-call criteria;
and

12 states received no funding under the one-call component, because they had not
met any of the one-call criteria.



20

Several states which had received reduced funding because of failure to adopt the
one-call criteria did enact one-call legislation in 1994. These include Virginia, Ken-
tucky, Alabama, and New Jersey. They will be reevaluated this year.

Overall this approach has not been as successful as hoped.

While some states have improved their one-call programs since 1988, it is not pos-
sible to determine how much of an inducement the threat of a reduction in pipeline
safety grant funds has been. This is due, in large part, to the underfunding in the
grant program, where, on average, we were funding between 24 and 35% of the
states' pipeline safety costs, rather than the 50% authorized in the law.

A particularly undesirable outcome has been the penalizing of otherwise solid
pipeline safety programs because of a state's failure to adopt one-call standards.

Question 4. Under H.R. 4394, one of the eligible uses of the grant funds is for
states to improve location capabilities, including developing geographical informa-
tion systems (GIS). Could you describe how "development of GIS" is different from
"mapping 1 ? How costly is GIS to owners of underground facilities? Do one-call sys-
tems need information provided by GIS technology to be effective?

Answer. A mapping system can store, retrieve, manipulate and display pre-de-
fined geographical features, with varied analytical capability, depending on the sys-
tem. A "GIS' system is a mapping system that aims at greater analytical capability.
Developing a GIS requires more data gathering and entry to create many layers of
data of different types. For example, one layer would be the location of the pipeline;
other layers could be population density, location of bodies of water, location of other
transportation features or utilities.

Costs of GIS are associated with improving the accuracy of the information, col-
lecting various types of data, the hardware selected, and labor to operate the sys-
tem.

One-call systems can operate effectively without a "GIS".

Question 5. H.R. 4394 provides for the establishment of a nationwide toll-free tele-
phone number to be used by State one-call notification systems. How do you envi-
sion that such a number would operate?

Answer. A national number could be used where an excavator may not know the
one-call number for the area in which he or she intends to dig. In that case, the
national number could transfer the caller to the appropriate number in the state
of intended excavation.

The Department would include within its national one-call enhancement strategy
public awareness of this number as well as the state-specific one-call numbers.

Mr. Petri. Thank you.

Mr. Rahall. Mr. Mineta.

The CHAIR. Thank you very much, Mr. Chairman. First of all, let
me just ask, how many States are meeting the minimum require-
ments that are under the 1988 act right now?

Mr. Tenley. Mr. Chairman, there are 11 States under our
scheme in implementing that act which received the full funding.
That means they haven't been penalized for having inadequate one-
call.

There are 15 States that have received some reduction but have
met most of the criteria. There are nine States that have received
substantial reductions but have some one-call criteria. And there
are 12 States that we have penalized the maximum degree because
they have no one-call system that meets the criteria. And that is
out of a total of 47 States in the program.

The Chair. Let me go to a question relative to whether there are
current State programs that meet the elements that are contained
in H.R. 4394 for one-call notification system.

And if so, how many are there?

Mr. Sharma. We estimate that there are about 30 States that
would be eligible for funding because they meet the requirements
prescribed in the bill or they would have alternative programs that
would be acceptable to us. So about 30 States.

The Chair. So of the 47, you are saying that 30 have elements
that will comply with 4394 as well?



21

Mr. Sharma. Yes, sir.

The Chair. Now, do you anticipate that there will be any prob-
lems with maintenance of these State programs once the Federal
grants run out in 1998?

Mr. Tenley. I don't believe so. One of the goals of our national
strategy as enhanced by this bill will be to develop, over time, pro-
grams that are self-sustaining and there are very good models for
fee-based programs that sustain these and don't put a burden on
taxpayers or on facility operators.

The Chair. And do you anticipate the nationwide one-call tele-
phone number in Section 3 of H.R. 4394 being used?

Mr. Sharma. Yes, sir, we do believe that the 800 number would
be used with proper public education, with advertising, that would
indeed be used. That is our anticipation and hope.

The Chair. We have heard from the railroad industry. They are
requesting that their routine maintenance of rail beds and right-
of-way be included as an exemption from the one-call notification
program. They state that, to their knowledge, they have not caused
any problems with underground facilities in the last 20 to 30 years.

I am wondering if you could tell us whether or not DOT has any
supporting or contrary data regarding excavation by railroads
doing routine maintenance and what, if any, recommendation the
Department would have regarding this issue.

Mr. Sharma. Mr. Chairman, we are indeed in the process of de-
veloping this data on the railroads. We are looking into it as to, you
know, how many — how many of these incidents are indeed rail-
road-related. We have not completed that study.

The Chair. Very well. Thank you very, very much.

Thank you, Mr. Chairman.

Mr. Rahall. The gentleman from Pennsylvania?

Okay. Dr. Sharma, thank you. We appreciate your being with us
today.

Mr. Sharma. Thank you, Mr. Chairman.

Mr. Rahall. Thank you.

The CHAIR. Mr. Chairman, could I ask one quick question here?

Mr. Rahall. Sure.

The Chair. George, we had a very bad accident in California
back in about — in San Bernardino back in 1989 or 1990.

Mr. Tenley. 1989. May, I believe.

The Chair. One of the problems in that instance happened to be
that we had a gas line, I believe, or a

Mr. Tenley. Hazardous liquid line.

The Chair. Hazardous liquid line right alongside the right-of-
way, the tracks of a railroad so that when the railroad — the cars
had a problem or ran out of control, then it impacted on the pipe-
line.

Has that been corrected in the sense of trying to separate or try-
ing to minimize where that — those lines are running parallel that
might cause a potential problem?

Mr. Tenley. Well, obviously, we always address that through the
emergency procedures that an operator has. And in that particular
case, the problem — there were several problems and one of the
problems was not only the impact of the engine and cars coming
off the train, but it was also the clean-up equipment that was used.



22

And it is somewhat related to one-call in that the placement of
that heavy equipment was not well-placed and it arguably did as
much damage to pipelines as it supposedly was meant to help on

rail.

The issue for us has been working with the Federal Railroad Ad-
ministration in that pipeline companies and railroads talk to each
other. And the Federal Railroad Administration did issue a report
18 months ago in which they incorporated information to operators,
rail operators that they work with pipeline operators. And we have
encouraged pipeline operators to work with railroad operators to
make sure that the situation is ameliorated to the maximum extent
possible.

But in this country, there is a lot of pipeline and railroad right-
of-way. A lot of things are put in common rights-of-way. We have
worked on the emergency response and we expect pipeline opera-
tors to know what activities go on above their pipe lines.

The Chair. In that instance, the pipeline was on the outboard
side of the railroad line so that any accident that might occur gen-
erally would be on the outboard side and that is right where the
pipeline was running, rather than on the inside of the curve.

Mr. Tenley. One of the issues that came up after the accident
was the siting of the pipeline and what are the factors that are
taken when they are sited. In our statutory authority, we don't get
into the issues of siting pipe lines. The extent to which that is done
would be local land use controls over local rights-of-way and how
the railroad in this case would control what goes into its rights-of-
way.

That issue, I believe, is still an open issue as to how one consid-
ers it. We are working again as an example of the one-call issue.
We are working to enhance public knowledge about pipelines so
local land use planners can take pipelines into account when they
provide permits and development easements. So we are approach-
ing it that way as well.

The Chair. All right. Thank you very much.

Mr. Rahall. Our next witness is James L. Martin, Director of
State-Federal Relations, National Governors' Association, Washing-
ton, D.C. Welcome to the subcommittee. We have your prepared
testimony, and it will be made a part of the record as if actually
read. You may proceed as you desire.

TESTIMONY OF JAMES L. MARTIN, DIRECTOR OF STATE-FED-
ERAL RELATIONS, NATIONAL GOVERNORS' ASSOCIATION,
WASHINGTON, DC

Mr. Martin. Thank you, Mr. Chairman, and Members of the sub-
committee. I especially thank you, Mr. Clinger. I understand that
we are close to an agreement with Mr. Conyers on unfunded man-
date relief legislation and, hopefully, are ready for markup on the
Floor next week. The same is true in the Senate where I think we
are moving to Floor action very quickly.

It is my pleasure to be here this morning. I guess I represent the
third parties. There are 70,000 State and local governments. I have
a resolution of NACO, the National Association of Counties that
support — we all support H.R. 4394, but we do have concerns about
the citizen suit language in 4394, including the latest draft. My



23

comments are based on the draft that I received last week that is
being worked out by the committee staff.

Mr. Mineta asked about the cities, the National League of Cities.
Here is a full page ad in the National League of Cities newspaper
a couple of weeks ago about this legislation, and particularly cen-
tering on the citizen suit language.

The NACO resolution is less than a month old. We support the
premise and we support incentives and we support a cooperative
program. What concerns us is authorizing any person aggrieved to
sue State and local governments if they do not like the State pro-
gram. And I will mention in particular some of the State programs.
' The citizen suit language is also of high concern to the National
Association of Attorneys General. It is very much opposed by the
National Conference of State Legislatures. And I will direct my at-
tention to those.

First, let me commend the staff that have worked on the — I
guess it is the September 14th draft. That draft has many aspects
in it and many changes in it that the State and local governments
have requested and we greatly appreciate the changes in the latest
draft, the September 14th, draft.

These changes include adding the section on consideration, in
Section 4, paragraph (a). This changes this program from an origi-
nal draft of this legislation from a confrontation between the Fed-
eral and State and local governments to a cooperative or a program


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Online LibraryUnited States. Congress. House. Committee on PubliComprehensive One-Call Notification Act of 1994 : hearing before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, One Hundred Third Congress, second session, September 22, 1994 → online text (page 3 of 7)