This week, the House Interior/Environment Appropriations Subcommittee marked up its FY 2013 funding legislation for the Department of the Interior and Environmental Protection Agency (EPA), which also contains the funding for EPA’s State Revolving Funds (SRF) for clean water and drinking water infrastructure.

AGC recently submitted comments on a proposed rule issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that addressed federal enforcement of state damage prevention laws. This proposed rule establishes the criteria for determining the adequacy of state enforcement of pipeline damage prevention laws and proposes a process for federal enforcement under the authority of the Pipeline Inspection, Protection, Safety, and Enforcement (PIPES) Act of 2006.

AGC Submitted comments on a proposed rule issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that addressed federal enforcement of state damage prevention laws. This proposed rule establishes the criteria for determining the adequacy of state enforcement of pipeline damage prevention laws and proposes a process for federal enforcement under the authority of the Pipeline Inspection, Protection, Safety, and Enforcement (PIPES) Act of 2006.

The long-awaited proposed rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA) on state damage prevention programs was published on Monday, April 2. The 2006 Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES Act) requires PHMSA to enforce damage prevention laws where a state damage prevention program is deemed inadequate to do so. This proposed rule is designed to lay out the criteria PHMSA will use to judge whether a state damage prevention program is adequate and what actions the federal government will take once a state has been deemed inadequate.The rule lays out six criteria to determine the adequacy of a state’s damage prevention program, which are:Does the state have the authority to enforce its state excavation damage prevention law through civil penalties?Has the state designated a state agency or other body as the authority responsible for enforcement of the state excavation damage prevention law?Is the state assessing civil penalties for violations at levels sufficient to ensure compliance and is the state making publicly available information that demonstrates the effectiveness of the state’s enforcement program?Does the enforcement authority (if one exists) have a reliable mechanism (e.g., mandatory reporting, complaint-driven reporting, etc.) for learning about excavation damage to underground facilities?Does the state employ excavation damage investigation practices that are adequate to determine the at-fault party when excavation damage to underground facilities occurs?At a minimum, does the state’s excavation damage prevention law require the following?Excavators may not engage in excavation activity without first using an available one-call notification system to establish the location of underground facilities in the excavation area.Excavators may not engage in excavation activity in disregard of the marked location of a pipeline facility as established by a pipeline operator.An excavator who causes damage to a pipeline facility:Must report the damage to the owner or operator of the facility at the earliest practical moment following discovery of the damage; and,If the damage results in the escape of any flammable, toxic, or corrosive gas or liquid that may endanger life or cause serious bodily harm or damage to property, must  promptly report to other appropriate authorities by calling the 911 emergency telephone number or another emergency telephone number.Does the state limit exemptions for excavators from its excavation damage prevention law? A state must provide to PHMSA a written justification for any exemptions for excavators from state damage prevention requirements. PHMSA will make the written justifications available to the public.The rule also outlines the standards that PHMSA would consider enforceable in states determined to have inadequate damage prevention laws. These federal requirements are:A person who engages in demolition, excavation, tunneling, or construction—may not engage in a demolition, excavation, tunneling, or construction activity in a state that has adopted a one-call notification system without first using that system to establish the location of underground facilities in the demolition, excavation, tunneling, or construction area;may not engage in such demolition, excavation, tunneling, or construction activity in disregard of location information or markings established by a pipeline facility operator; andwho causes damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property—may not fail to promptly report the damage to the owner or operator of the facility; andif the damage results in the escape of any flammable, toxic, or corrosive gas or liquid, may not fail to promptly report to other appropriate authorities by calling the 911 emergency telephone number.One of the big requests from the excavation community during our comments on the Advance Notice of Proposed Rulemaking was that the term ‘excavator’ applies to all parties doing excavation, including utilities and the contractors working for them. AGC continues to examine the rule for other areas of importance to its members. Any contractor that engages in excavation activity should read the rule. We would welcome any thoughts as AGC formulates its response to this rule, which is due June 1.You can read the proposed rule here.For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org.

Senators Barrasso (R-Wy.), Inhofe (R-Okla.), Heller (R-Nev.) and Sessions (R-Ala.), along with 26 of their colleagues, introduced legislation to stop the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) from implementing its guidance on Clean Water Act jurisdiction.

This week, the construction industry has been hit with good news on the issue of federal jurisdiction over wetlands in the Clean Water Act. The U.S. Supreme Court, in a unanimous March 21 ruling, said that an Idaho couple could legally challenge an Environmental Protection Agency (EPA) compliance order that told them to restore wetlands on their property.

The Subcommittee on Water Resources and Environment, chaired by Rep. Bob Gibbs (R-Ohio), held a hearing to review innovative approaches for financing community water infrastructure projects. The subcommittee focused on potential financing tools, including many AGC priorities in the water infrastructure sector. The chairman’s opening statement acknowledged the substantial water infrastructure needs and the unfortunate results of deferred investment. Witnesses pointed out that local governments continue to be concerned about the impacts unfunded federal mandates have on their ability to meet compliance obligations, especially given municipalities' dwindling revenues in the current economic climate.

During the markup of the Senate Finance Committee’s portion of the Surface Transportation bill, Sen. Menendez (D-NJ) offered a version of the AGC-supported legislation exempting water and wastewater infrastructure from the private activity bond volume cap as an amendment. The amendment was accepted on a voice vote, because it wasn’t controversial enough to require a roll call vote and AGC is hopeful that the bill will pass.

As AGC reported previously, a company called LightSquared is planning to build a national mobile internet network to compete with the data signal offered by major cell phone companies. Early reports indicated that the spectrum they planned to use was too close to the signal band used by the Global Positioning System, causing signal bleed and interference, particularly for the sensitive GPS receivers aboard agricultural and construction equipment.

A last minute legislative compromise to avert a government shutdown saw Democrats and Republicans come together on the nine outstanding appropriations bills. Among them is the Interior/Environment appropriations bill, which contains the funding for the Environmental Protection Agency’s (EPA) State Revolving Loan Funds (SRFs). The compromise would fund the Clean Water SRF at $1.469 billion, down from $1.525 billion in FY 2011. The bill also funds the Drinking Water SRF at $919 million, down from $965 million in FY 2011. This represents total cuts to the SRFs of slightly more than $100 million.While these cuts are certainly disappointing, they remain in stark contrast to the earlier version of the numbers the House was considering. As AGC previously reported, the House’s original funding numbers represented a cut to the SRFs of $967 million. These cuts, and the variance in funding numbers, are further evidence of the necessity for a stable long-term funding mechanism for water infrastructure to ensure certainty and predictability for municipalities and their contractor partners.For more information, contact Scott Berry at (703) 837-5321 or berrys@agc.org.