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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of cooperation and mutual support, and we deeply appreciate that.

Flexible approach is also written in very clearly in Sections 5, 6,
7, and 8. And in addition, the instructions to the Secretary of
Transportation says they must develop the model program in con-
sultation with State and local governments. These changes make
this act a model for some future Federal-State cooperative pro-
grams and in the enforcement area.

As you well know, and as Mr. Panetta said in testimony in an-
other hearing with Mr. Mineta a month ago, every government
today is in an era of severe fiscal constraint. You know that better
than I, and I ask you to consider comments. I represent the staffs
of all of the State and local organizations, and our suggested
changes from the viewpoint of your own city, town or community.

First, we want, in Section 4, the paragraph on compliance, we
would like that section dropped. That is the section on citizen suits.
We want that section, that one paragraph, dropped because it is in-
consistent with three other sections of the draft bill.

In Section 4, paragraph (a), consideration that we strongly sup-
port, it is inconsistent with that. Section 4, paragraph (d), appro-
priateness, paragraph (d) says nothing in this act prohibits a State
from making a determination that it is not appropriate to adopt a
State program. Citizen suits and compliance are inconsistent with
that requirement.

And finally in Section 7, paragraph (b), a State can even adopt
an alternative program so long as it meets the public safety re-
quirements as determined by the Secretary of Transportation.

Recently, the Conference of Chief Justices and the Judicial Con-
ference of the United States, separately reported their main con-
cern today, being the explosion of citizen suits across the board in
every area, in separate reports called for a restriction of citizen



24

suits and a return back to administrative law, administrative pro-
cedures before we even get to State courts, much less Federal
courts.

In particular, I call your attention to the word "fair" in item 8
under the requirements of a State plan. In Section 8 it says the
State must adopt a fair and appropriate schedule of fees. The word
"fair" is very, very subjective. It makes this a fair — I cannot get
any of your staffs, anybody from the administration, to show me or
prove to me that the word "fair" does not mean — could not mean,
doesn't have to mean, but it could mean a broad-based tax. So any
person aggrieved could sue the State if it determines that the tax
or the fee is not fair, and this subjective word is just opening up
the whole process to unlimited litigation.

In Section — in item 9 — under the State plan, it requires the
State to provide an opportunity for citizen suits. Citizen suits are
the newest form of unfunded mandates. Since we are all out of
money, there is no money at any level of government today, and
we can't pass any more mandates in Congress, so what is the third
method?

The third method is unilateral, across-the-board, any person ag-
grieved citizen suit against the 70,000 local governments of this
country.

As you all know, the Safe Drinking Water Act was held up and,
finally, two days ago, there was agreement on the Safe Drinking
Water Act when the citizen suit language was entirely taken out
of the bill. There is no reference to citizen suit language in the Safe
Drinking Water Act.

This new tendency for citizen suits, all of the organization of
State and local governments will begin highlighting this attempt to
impose unfunded mandates, in this case, even requiring the State
to establish a fair, undefined fee structure which could be a broad-
based tax.

And finally, it is inconsistent with the examples of cooperation
and Federalism that we are trying to do today. We urge you to pass
H.R. 4394 in markups next week. We ask you and humbly request
that you drop the citizen suit reference and the word "fair" under
the State plan requirements.

Thank you, Mr. Chairman.

Mr. Rahall. Thank you, Mr. Martin.

Am I correct that the NGA agrees overall that the staff draft
dated September 14th does not contain the type of potential 10th
amendment problems that were associated with the version of the
bill as reported by the Energy and Commerce Committee?

Mr. Martin. Yes, sir. The 10th amendment was a problem be-
cause the original draft said that the Secretary of Transportation
could sue State governments or any aggrieved person.

In meeting with the attorneys of the Department of Transpor-
tation and State and local officials, the Justice Department in-
formed the Hill staff that having the Secretary sue State govern-
ment was unconstitutional, that four out of five Federal courts
have ruled background checks on the Brady bill unconstitutional,
and having the Secretary of Transportation sue the States in this
regard was even more so and clearly more unconstitutional.



25

So the staff draft takes out the Secretary but leaves any person
aggrieved. If the Secretary can't sue the States, why should any
person aggrieved be able to sue the State if they don't have a fair
schedule of fees?

Mr. Rahall. Well

Mr. Martin. Suppose you are in a small town. Suppose you are
in a community of three or 4,000 and there is only one pipeline op-
erator, one person, one major excavator. And that one major exca-
vator could say, this is not a fair schedule of fees because I am the
only one paying. I mean, it is so obvious that you are going to have
litigation under the word "fair." It is undefined and it is wide open.

Mr. Rahall [continuing]. Well, for the record, let me say that I
completely, totally, 1,000 percent disagree with your views on citi-
zen suits.

Mr. Martin. Well, we are not opposed to citizen suits. We are
not opposed to citizen suits

Mr. Rahall. Let me finish the comment if I might. Far too often,
the rights of affected citizens are run over roughshod and they
have no means of redress. It is part of the reason they feel so alien-
ated today from the actions of their government, from any decision-
making processes. I think the citizen suit provisions at least give
them a fighting chance. And so I am not for eliminating that sec-
tion at all.

Let me yield now to the distinguished full committee chairman,
Mr. Mineta.

The CHAIR. First of all, let me ask Mr. Martin, from — give me —
other than the specifics you have here, give me a feeling about the
general tenor of the National Governors' Association as to how you
folks feel about H.R. 49 — I am sorry — 4394 in terms of whether you
support it, are against it, find it acceptable or not acceptable.

Mr. Martin. Forty-nine States have one-call systems and they
want to work in a cooperative way with the Federal Government
and with the industry to move forward. Some States are just start-
ing their programs, some you just heard, 30, are top of the line, in
full compliance. We think that cooperative, joint working relation-
ship is the one we should foster. I doubt any governor has read this
bill in its early form, mid form or late form. Our comments are
based on or long-term policies on Federalism, on unfunded man-
dates and on the need for partnership between levels of govern-
ment. And the idea of one level of government encouraging every-
body to sue a level of government is foreign to our ideas of Federal-
ism.

We believe in citizen suits and citizens should be able to sue any
government within rights and their responsibilities. But these
kinds of citizen suits are not the kind that we are used to. We will
encourage you to support the bill. We encourage you to take out the
citizen suit language — the citizen suit language. If other Members
raise this question, you will find our association supporting those
people who want to take the citizen suit language out.

We are not going to oppose the bill, but you are going to find re-
sistance to the bill because of these provisions. These provisions
are internally inconsistent to the act of the draft we received the
last couple of days.



26

The Chair. Well, Chairman Rahall has already expressed his
opinion, and I support him, because it seems to me that you are
creating an overly negative view of the citizen suit potential of this
bill. I think there is a certain misrepresentation of what I feel the
bill will do, and as I look at other things that we have to deal with,
that come before this committee, my feeling is that the National
Governors' Association sort of takes this broad-brush approach,
whether it is the Comprehensive One-Call Notification Act of 1994
or another bill that I am interested in called the Clean Water Act.

And I recognize that the governors are mad about immigration
burdens. There are a lot of issues that the States are concerned
about. But frankly, this kind of reaction coming up every time we
do something, complaining about everything and what I would even
go so far as misrepresenting a lot of what we are doing, especially
in this committee, I think it is wrong.

But more importantly, I think you talk about partnering. You
talk about money to cooperate. Frankly, I think this is very damag-
ing to your credibility as on organization. So I just hope that you
would reconsider your approach on matters that come before this
committee.

Mr. Martin. I appreciate that, Mr. Chairman, and take that very
seriously. Only because of time am I here. I very rarely sit in this
seat. The governors are the lobbyists, not me. Very few Members
of Congress even know who I am.

I have been with the National Governors' Association 28 years as
their counsel. I am here. We could have easily organized the Presi-
dents of the National Association of Counties, the National League
of Cities, the United States Conference of Mayors, the association —
National Association of Attorneys General, the National Legislative
Conference. I probably couldn't have ever delivered a governor here
today. It just — they don't get into these kinds of details. And I sug-
gest, Mr. Chairman, that when all of State and local government
today is united, there is a total paradigm shift today in the rela-
tionships between State and local government and the Federal
Government.

The National Governors' Association, Washington office, was
founded in 1967 when I came to work for them because President
Johnson tried to give mayors some direct money to hire some cops.
This year, the National Governors' Association supported the crime
bill; we supported giving mayors 100,000 policemen. There is a par-
adigm shift.

There are no more arguments between governors, State legisla-
tors, mayors and governors when it comes to Washington, D.C.
They will fight it out at home. That will always be there. But in
terms of Washington, D.C, there is — there are no more arguments.
The coalition of State and local government this year is unbeliev-
able and unparalleled in my experience, and it will only grow and
get more intense.

The Chair. Well, Mr. Martin, I have known you a long time. I
have served on a lot of those committees. I was on the board of di-
rectors of the National League of Cities.

Mr. Martin. Yes, sir.



27

The Chair. I have chaired committees of the National League of
Cities. I have chaired committees of the U.S. Conference of Mayors.
We used to call each other "pigs," as I recall, public interest groups.

Mr. Martin. Now we are "hogs," high official groups.

The Chair. That is right. So it is not that I am unmindful of that
view. I still know from whence I come.

But I will tell you, when I think about all the stuff we do, I bet
there are a lot more givings that we do than takings. I can think
of the Clean Water Act, I can go right down the line, ISTEA, every-
thing that we do in this Public Works Committee is probably more
beneficial to local and State governments.

And you talk about what happened in 1967. The reason I became
active in the National League of Cities and the U.S. Conference of
Mayors was because, when I was in local government, I always
thought we were creations of State governments, and after the
States created cities, they treated us like a bunch of illegitimate
children. And so that is why, no matter how much we requested
of the States, the States never did a dime for any local government,
cities and counties.

So then there was a shift. Then it became a Federal-city relation-
ship. You know that history as well as I as to why that Federal-
city relationship occurred in the 1970s. I served on the Legislative
Action Committee of the U.S. Conference of Mayors with John
Lindsay and Moon Landreau and what is his name, Lee Alexander.

Mr. Martin. Reilly.

The Chair. Great group. We had to campaign across this country
because the States were killing us, and we had to come to the Fed-
eral Government for clean water and everything. So I know and
I

Mr. Martin. You have been one of our champions, Mr. Chair-
man. There is no question about that. You have been a champion
for State and local government in a cooperative basis the entire
time.

The Chair. What did we do in ISTEA? We relegated to local con-
trol highway and road decisions unshackled it from the bureaucrats
here in Washington, D.C. that said, now hear this, now hear this,
and expected cookie-cutter approaches from the Atlantic to the Pa-
cific.

What did we do? We shifted that to local government, to State
government, and we even gave you the money.

Mr. Martin. We supported you, Mr. Chairman.

The Chair. You are darned right.

Mr. Martin. We supported.

The Chair. That is because you have a taking.

Mr. Martin. We support you here. We want you to look at the
word "fair." Take out the word "fair."

The Chair. What you are saying here in terms of citizen suits
is not really on the basis of fair, I don't think; I think that is be-
yond what we have in this legislation. We will keep talking about
it, Jim.

Mr. Martin. Yes, sir. Mr. Chairman, thank you.

Mr. Rahall. The Chair recognizes the ranking Minority Member,
Mr. Franks of New Jersey.

Mr. Franks. Thank you.



28

Mr. Martin, I was learning a great deal from listening to that
brief colloquy, and I appreciated the insights you provided. I
worked with Mr. Pallone on elements of this legislation, and as you
indicated, perhaps some governors have not read the early or the
midterm on the latest version of this bill. As one who has, I can
tell you it has undergone rather significant changes. The entire
thrust of the bill has been of reformatted. I would hope that you
would recognize the trend line of changes is very much in line with
most of the observations you have made here this morning.

Mr. Martin. The first half of my testimony, Mr. Franks, ac-
knowledged that, and we greatly appreciate that. This bill is 100
percent better than the first draft. It is a very good bill the way
it is written.

Mr. Franks. I appreciate hearing that. You earlier observed in —
one part of what I heard you say is that you supported the bill, but
wanted us to remove the citizen lawsuit provision. The bill itself re-
quires consideration absent the lawsuit issue, which is the compli-
ance issue which comes in a later part of the bill. The bill itself re-
quires consideration of whether or not the State should adopt a
comprehensive one-call system. If we support that provision, that
the State shall — and that is the only mandatory feature left in the
bill that the State shall consider — doesn't try to dictate the result,
merely requires the consideration — the compliance section, C, is
merely a hammer, given those instances which I would hope would
not come to pass, but could, where a State is unwilling to even con-
sider whether or not it is prudent and effective to adopt the com-
prehensive one-call system. It specifically stipulates they can con-
clude that it shouldn't apply to their State and they can reject it,
and there is absolutely nothing that can happen beyond that point.

But I think we have to be careful when we allow access to the
courts by citizens. I think we need to provide it where it is appro-
priate, but in this instance, it merely is a compliance hammer to
the earlier requirement that the States shall merely consider that
is not a very egregious use of the courts, it seems to me.

If you support the bill and the bill requires — requires consider-
ation by the State — and I don't think it is a very significant depar-
ture from that perspective to say that if the State fails to do what
you have said you support in the bill — then they shall have access
to the courts. I am trying to find as much common ground with you
as I can, but I kind of find myself with the Chairman here.

Mr. Martin. I think if that is what it means, we have no prob-
lem with that — if that is what it means. We don't read the bill that
way.

If you look on page 5 of the draft, the State program that they
have to consider shall provide for a fair and equitable — an appro-
priate schedule of fees, and then it shall provide for the citizen suit
that will activate the fair and appropriate schedule of fees.

The Chair. Would my colleague yield on this?

Mr. Franks. I will yield, Mr. Mineta.

The Chair. This really has bothered me. We just called the En-
ergy and Commerce Committee.

Mr. Martin. Yes, sir.

The Chair. They tell us the use of the word "fair" was intended
to allow States to take into consideration smaller companies and



29

municipalities when establishing the fee structure. So it was really
intended to make sure that fairness was there as the States were
doing their work; frankly, to help State — to help the State-local
government relationship and not to hurt it.

Mr. Martin. Well, if the committee report could say that and
clarify that word "fair" so that when the litigation would start and
you have one small community that is trying to work this out and
you — you don't have one aggrieved person who thinks what the city
or local government is trying to is not what that one

The Chair. If you promise to read that to all 50 governors, I will
make sure it is in the report.

Mr. Franks. Mr. Chairman, thank you for that clarification.

Mr. Martin, I understand the provision you just read that has
been the bone of contention provides for a fair and appropriate
schedule of fees to cover, et cetera. But I think that is subordinate
to Section 5 in the preamble where it talks about each State's con-
sideration under Section 4— A shall include consideration of pro-
gram elements that — and it goes on to enumerate a whole bunch
of items.

Mr. Martin. I am satisfied that if you are saying this is all con-
sideration and consideration overrides the rest of it and that is in
the record, this is a good bill.

Mr. Franks. Thank you, Mr. Chairman.

Mr. Rahall. Does the gentleman from Illinois, Mr. Poshard,
have any questions?

Mr. Poshard. Mr. Chairman, I do not have any questions at this
point. Thank you.

Mr. Rahall. Do any other Members have further questions?

Mr. Martin, thank you for being with us.

Mr. Martin. Thank you, Mr. Chairman. In spite of it, I have en-
joyed it.

Mr. Rahall. I am sure you have.

Mr. Rahall. The subcommittee will now hear from a panel con-
sisting of Mr. David McNiel, Vice President, Technical Service,
Tenneco Gas, Houston, Texas, testifying on behalf of the Inter-
national Natural Gas Association of America, INGAA, and the
American Gas Association, AGA.

The second panelist will be Larry Thomas, President BP Oil
Pipeline Company, Cleveland, Ohio, testifying on behalf of the As-
sociation of Oil Pipe Lines, Washington, D.C.; and finally Walter
Gainer, President of W.F. Wilson & Sons, Inc., Ellicott City, Mary-
land, testifying on behalf of the National Utility Contractors Asso-
ciation, Arlington, Virginia.

Gentlemen, we welcome you to the subcommittee. We do have
your prepared testimony. You may proceed in the manner you de-
cide.



30

TESTIMONY OF DAVID McNIEL, VICE PRESIDENT, TECHNICAL
SERVICES, TENNECO GAS, HOUSTON, TX, ON BEHALF OF
INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA
(INGAA) AND AMERICAN GAS ASSOCIATION (AGA); LARRY
THOMAS, PRESIDENT, BP OIL PIPELINE COMPANY, CLEVE-
LAND, OH, ON BEHALF OF THE ASSOCIATION OF OIL PIPE
LINES (AOPL); AND WALTER GAINER, PRESIDENT, W.F. WIL-
SON & SONS, INC., ELLICOTT CITY, MD, ON BEHALF OF THE
NATIONAL UTILITY CONTRACTORS ASSOCIATION, ARLING-
TON, VA

Mr. Rahall. I guess, Mr. McNiel, you want to go first.

Mr. McNlEL. Thank you, Mr. Chairman. I am happy to testify on
behalf of INGAA and the American Gas Association on behalf of
House Resolution 4394 as introduced by Congressman Pallone —
and Mr. Franks, as well — which deals with a nationwide one-call
system. We wish to thank you, Mr. Chairman and Chairman Mi-
neta, as well as the others I have mentioned, and your staffs for
your support of what we believe is a most important bill for our
country and for the infrastructure of the Nation.

Both INGAA and AGA strongly encourage Congress to pass the
one-call legislation this year. This one-call system must provide ex-
cavators with a simple, easily remembered, easily administered ap-
proach. It should provide the convenience of placing a single call
to a one-call system in order to have operators — such as the mem-
bers of our associations — be able to go out and locate their facilities
prior to the excavation in order to prevent damage to those facili-
ties, be they pipelines or other infrastructure that we have heard
mentioned this morning.

It is also important to note, as you have been informed earlier
and I am sure you are all aware, that there are many competing
needs for what are very limited amounts of funding. These one-call
systems, as they exist today and as we envision them existing — in
the way the bill is laid out, are basically self-funding. The systems
are really — I will call them almost a mutual aid association in the
sense that the membership, the members of these associations
themselves fund it. They sit down, and agree with each other on
how they will be charged. This is generally done on the basis of the
number of calls that are made to the system that require an opera-
tor of an underground facility to go out and make a location check
for his facility. Generally speaking, if an operator has no facilities
in the area then no charge is made. But the important point here
is that these systems are self-funding.

As you heard this morning from the Department of Transpor-
tation Mr. Tenley, and Dr. Sharma, outside force or third-party
damage has caused over 60 percent of the incidents since 1970, and
even more unfortunately, has caused over half or almost one-half
of the fatalities. As one-call systems exist today, few States require
all excavators and all underground facility operators to participate.
In fact many do not provide for statewide coverage, nor do they
have an effective enforcement program.

Any legislation, and in particular H.R. 4394, should contain cer-
tain elements. H.R. 4394 does contain these principles. INGAA and
AGA recommend that any legislation must include the following
principles:



31

First, the Federal Government should review and revise the min-
imum standards that they have set for the establishment of one-
call systems and permit the States the flexibility they require to
meet those standards. The Department of Transportation should
establish a model program — we have discussed it already this
morning — that could be used by the States as they create an effec-
tive damage prevention program.

Ideally, that model would include, we believe, four things. First,
all operators — and I emphasize the word "all," — all operators of un-
derground facilities that are at risk of being struck by outside exca-
vators should be included in this program. Historically, operators
such as our members have found that it is much more cost-effec-
tive, frankly, to participate in these systems and prevent the dam-
age from occurring than having to go out after the fact and make
a repair.

Second, all excavators who are undertaking activities that could
result in the striking of an underground facility must be required
to first call the system. The only exception that we would make
would be if the excavator is, in fact, the same entity or the same
individual as that of the facility operator — they should know where
their own facilities are — and only if there are no other underground
facilities in the area of the excavation. That would be the only ex-
emption that we could permit.

Third, we believe that enforcement should encourage contractor


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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 4 of 7)