NTSB Safety Recommendation P-00-002

NTSB safety recommendation P-00-002.

THE NTSB RECOMMENDS THAT THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION: REQUIRE EXCAVATORS TO NOTIFY THE PIPELINE OPERATOR IMMEDIATELY IF THEIR WORK DAMAGES A PIPELINE AND TO CALL 911 OR OTHER LOCAL EMERGENCY RESPONSE NUMBER IMMEDIATELY IF THE DAMAGE RESULTS IN A RELEASE OF NATURAL GAS OR OTHER HAZARDOUS SUBSTANCE OR POTENTIALLY ENDANGERS LIFE, HEALTH, OR PROPERTY.

Priority: CLASS II

Overall Status: Closed--No Longer Applicable

Issued Date: 2000-07-18

Adopted Date: 2000-07-11

Overall Date Closed: 2009-10-27

Synopsis: ABOUT 10:50 A.M. ON 12/11/98, WHILE ATTEMPTING TO INSTALL A UTILITY POLE SUPPORT ANCHOR IN A CITY SIDEWALK IN ST. CLOUD, MN, A COMMUNICATIONS NETWORK INSTALLATION CREW FROM CABLE CONSTRUCTORS, INC., (CCI) STRUCK AND RUPTURED AN UNDERGROUND, 1-INCH-DIAMETER, HIGH-PRESSURE PLASTIC GAS SERVICE PIPELINE, THEREBY PRECIPITATING A NATURAL GAS LEAK. ABOUT 39 MINUTES LATER, WHILE UTILITY WORKERS AND EMERGENCY RESPONSE PERSONNEL WERE TAKING PRELIMINARY PRECAUTIONS AND ASSESSING THE SITUATION, AN EXPLOSION OCCURRED. AS A RESULT OF THE EXPLOSION, 4 PERSONS WERE FATALLY INJURED; 1 PERSON WAS SERIOUSLY INJURED; AND 10 PERSONS, INCLUDING 2 FIREFIGHTERS AND 1 POLICE OFFICER, RECEIVED MINOR INJURIES. SIX BUILDINGS WERE DESTROYED. DAMAGE ASSESSMENTS ESTIMATED PROPERTY LOSSES AT $399,000.

Probable Cause: The National Transportation Safety Board determined that the probable cause of this accident was the lack of adequate procedures by CCI to prevent damage to nearby utilities when its anchor installation crews encountered unusual conditions such as striking an underground obstacle. Contributing to the severity of the accident was the delay by CCI in notifying the proper authorities.

Ntsbnumber: DCA99MP001

Report Number: PAR-00-01

Addressee Name: United States Department of Labor, Occupational Safety and Health Administration

Addressee Status: Closed--No Longer Applicable

Addressee Date Closed: 2009-10-27

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2003-06-09

Communication Type: Official Correspondence

Communication Contents: Letter Mail Controlled 6/11/2003 3:46:25 PM MC# 2030280 Attached is a Safety and Health Information Bulletin (SHIB) entitled "Hazards Associated with Striking Underground Gas Lines." This OSHA Safety and Health Information Bulletin was developed based on the National Transportation Safety Board's recommendation, P-00-2. We will post the SHIB on our website and will issue a news release in the next few days.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2002-10-04

Communication Type: Official Correspondence

Communication Contents: Letter Mail Controlled 10/16/2002 10:22:21 AM MC# 2020863 As you may know, OSHA has requirements designed to avoid hazards resulting from accidental damage to underground utility installations during excavation work. These requirements, published at 29 CFR 1926.651(b), include establishing the location of underground installations by contacting utility companies or owners or by using detection equipment or other acceptable means, using safe and acceptable means to determine the exact location of underground installations when excavation operations approach the estimated location of such installations, and protecting or supporting utility installations while the excavation is open. Although these safety requirements do not foreclose the possibility that accidents may occur, our consideration of your rulemaking proposal must include an evaluation of the magnitude of the problem. The data we have examined so far does not indicate that gas pipeline ruptures from construction activity are a significant cause of injuries or fatalities. If the NTSB has data to the contrary, we would be pleased to review it. Furthermore, we do not think that enacting a requirement to call 911 in the event a contractor hits a gas line will add to the already very high probability that such a call will be immediately made. There are other, more direct means of heightening the awareness of contractors to the dangers associated with striking gas lines - such as issuing a hazard information bulletin. As a precaution, we will issue such a bulletin to remind contractors of the steps necessary to prevent these accidents and to call emergency services immediately if a line is struck.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2004-02-10

Communication Type: Official Correspondence

Communication Contents: Letter Mail Controlled 2/18/2004 1:10:28 PM MC# 2040068 You state in your letter that OSHA's SHIB recommendation can serve as a helpful reminder to contractors, but you request that we again consider making these notifications a requirement under OSHA's regulations. OSHA will consider this recommendation in the context of a "lookback review" currently being conducted on OSHA's Excavations Standard. A Notice announcing this lookback review and soliciting public comments was published in the Federal Register on August 21, 2002 (67:54103-54104). We are analyzing all data and information gathered during this lookback review process, and your NTSB recommendation will be included in our lookback review. We anticipate that there may be recommendations for changes to the Standard as a result of the lookback study. Any such recommendations would go through the normal rulemaking process. The lookback review on OSHA's Excavations Standard is scheduled to be completed in September 2004.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2008-11-06

Communication Type: Official Correspondence

Communication Contents: Letter Mail Controlled 11/13/2008 2:03:39 PM MC# 2080690: OSHA considered NTSB’s recommendation in the context of its lookback review of OSHA’s excavation standard. Shortly before issuing the lookback review, Congress enacted the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act in December 2006, in which it delegated further responsibilities to the Department of Transportation to regulate in the field of pipeline safety. Specifically, the PIPES Act addressed the issues raised by the NTSB by requiring excavators to promptly report pipeline damage and to call 911 if the damage results in the escape of dangerous materials. The key provisions read as follows: 49 U.S.C. 60114(d) (2008) Prohibition applicable to excavators A person who engages in demolition, excavation, tunneling, or construction - * * * (3) and who causes damage to a pipeline facility that may endanger life or cause serious bodily harm or damage to property (A) May not fail to promptly report the damage to the owner or operator of the facility; and (B) If 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. As a result, the lookback review report concluded that these provisions of the PIPES Act may have obviated the need for language to be added to the Excavations Standard to address the Board’s recommendation contained in P-00-2. Therefore, on August 9,2007, John D. Smith, the Director of OSHA’s Office of Evaluations and Audit Analysis, sent an email to NTSB communicating this position. In a letter dated January 11, 2008, NTSB responded that it disagreed with OSHA’s interpretation of section 60114(d)(3)(b), asserting that the jurisdiction of the Department of Transportation’s Pipeline and Hazardous Material Safety Administration (PHMSA) is limited to only those excavators who are also pipeline operators. The NTSB was, therefore, concerned that excavators who are not also pipeline operators would not be required to comply with 49 U.S.C. 601 14(d) (3). After further review, in coordination with the Department’s Office of the Solicitor, we continue to believe that NTSB’s interpretation of 49 U.S.C. 60114(d)(3) is inconsistent with the statute. In preparing this response, we consulted with PHMSA. PHMSA interprets section 60114(d) as covering all excavators who damage pipelines, not just those who are also owners or operators of pipeline facilities. We agree. Both the text of the PIPES Act and its legislative history clearly demonstrate that Congress intended that the emergency notification provision apply to all excavators, and that Congress delegated the authority for the federal enforcement of these provisions to the Department of Transportation (DOT) A. Delegation of Authority to the Department of Transportation Congress inserted the various provisions of the PIPES Act into Title 49 of the United States Code, which establishes DOT and sets forth its powers and duties. The relevant section of the PIPES Act, codified at 49 U.S.C. 60114, assigns authority to the Secretary of Transportation to promulgate appropriate standards. See, e.g., 49 U.S.C. 60114(a) The Secretary of Transportation shall prescribe standards…). Subsection (d) contains the excavator-notification requirements at issue here. Thus, it is clear that to the extent the exercise of federal authority over the excavator-notification requirements is necessary and appropriate, Congress intended that the Secretary of Transportation have this authority. B. Text of the PIPES Act Congress established a broad scope for section 60114(d), applying its requirements to any person who engages in… excavation. 49 U.S.C. 60114(d). For the purposes of 49 Chapter 601, which encompasses 49 U.S.C. 60114(d), a person includes corporations, companies, associations, firms, partnerships, joint stock companies, individuals, a State, a municipality, and a trustee, receiver, assignee, or personal representative of a person. See 49 U.S.C. 60101(a)(17), citing most entities described in 1 U.S.C. 1. Congress’s decision to apply the requirements to any person who engages in . . . Excavation, therefore, signifies an intent to capture a broad range of excavators, and there is no language in section 60114(d) to indicate that any group of persons engaged in excavation is excluded. The heading of 49 U.S.C. 60114(d) reads, Prohibition applicable to excavators. There is no limitation on the type of excavators covered by subsection (d), suggesting that all excavators working on a pipeline engaged in covered activities would be affected by this regulation. In contrast, the heading of the following section is Prohibition applicable to underground pipeline facility owners and operators. 49 U.S.C. 60114(e). The positioning of these two headings reveals that the drafters of the PIPES Act intended that subsection (d.) would apply to all excavators, rather than just those excavators who are also owners and operators of pipeline facilities, while subsection (e) would apply only to excavators who are also owners and operators of pipeline facilities. If the drafters had intended for the pipeline-damage and 911 emergency-notification provisions to apply only to those excavators who are also owners and operators of pipeline facilities, then section 60114(d)(3)(A) and (B) would have been included in subsection (e) rather than subsection (d). Finally, the structure of 49 U.S.C. 60114(d) further illuminates the intent of Congress. Under subsection 60114(d)(3)(A), a person engaged in… excavation who causes damage to a pipeline facility must promptly report the damage to the owner or operator of the facility. (Emphasis added.) If the reporting duty of section 60114(d)(3)(A) was limited to only those persons who also are owners or operators of a pipeline facility, the entire requirement would be rendered nonsensical and perhaps superfluous (i.e., owners or operators of pipelines, and only those entities, would have to report their own actions to themselves). C. Legislative History of the PIPES Act The legislative history of the PIPES Act further supports a reading that section 60114(d) applies to all excavators. In the House Report, Congress explained: Expansion and development also means more construction activity near pipelines. It should come as no surprise therefore, that third party excavation damage is the leading cause of pipeline accidents. To address the increasing risks associated with the damage prevention process, this legislation seeks to encourage the States to adopt and enforce more stringent procedures for all parties involved in the process In addition, the language contains a requirement to call 911 if any damage results to a pipeline from construction or excavation activity that causes a release of toxic, flammable or corrosive gas or liquid. H.R. 109-717 (2006), reprinted in 2007 U.S.C.C.A.N. 1858,1869 (emphasis added). If the NTSB’s narrow reading of the scope of 49 U.S.C. 60114(d) was correct, then this section would not address the risks associated with third-party excavation damage as Congress intended. Moreover, the legislative history explicitly states that the drafters wanted to create more stringent procedures for all parties involved in the process. Therefore, this portion of the House Report clearly reflects Congress’s intent that this section of the PIPES Act applies to all parties engaged in excavation activities. D. Conclusion To the extent Congress delegated federal authority over excavator notification requirements, such authority was delegated to the Secretary of Transportation under 49 U.S.C. 60114(d). PHMSA interprets section 60114(d) as covering all excavators who damage pipelines, not just those who are also owners or operators of pipeline facilities. Both the text and legislative histor

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2000-08-30

Communication Type: Official Correspondence

Communication Contents: Letter Mail Controlled 09/06/2000 4:09:39 PM MC# 2001234 THANK YOU FOR ALERTING OSHA TO THIS DANGER TO WORKERS AND TO THE GENERAL PUBLIC. I HAVE INSTRUCTED OSHA'S DIRECTOR OF CONSTRUCTION, MR. BRUCE SWANSON, TO REVIEW YOUR RECOMMENDATION AND ADVISE ME ON ANY ACTIONS THAT SHOULD BE TAKEN BY OSHA. WE WILL ADVISE THE SAFETY BOARD OF OUR DECISION. SINCE THE INCIDENT THAT TRIGGERED YOUR INVESTIGATION OCCURRED IN ST. CLOUD, MN, WE ARE ALSO SENDING A COPY OF YOUR LETTER TO MINNESOTA'S COMMISSIONER OF LABOR AND INDUSTRY. MINNESOTA OPERATES ITS OWN OSHA PROGRAM UNDER SECTION 18 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2003-12-10

Communication Type: Official Correspondence

Communication Contents: The Safety Board notes that OSHA has issued Safety and Health Information Bulletin (SHIB) 03-05-21, "Hazards Associated with Striking Underground Gas Lines," in response to the Safety Board's recommendation. The Board further notes that the purpose of the bulletin is (1) to remind contractors of OSHA's requirements to prevent accidental damage to underground utility installations during excavation work, and (2) to recommend notifying the pipeline operator immediately if the excavator causes damage to a pipeline and to call 911 or other emergency response numbers if the damage results in a release of natural gas or other hazardous substance. The Safety Board believes that this bulletin will be a helpful reminder to contractors performing excavation work. However, the Board had specifically requested that excavators be required to notify the pipeline operator and 911, as this would ensure that all excavators would receive training on this notification process. In addition to the St. Cloud, Minnesota, accident that prompted this recommendation, the Safety Board is conducting an investigation into a natural gas explosion that occurred on July 2, 2003, in Wilmington, Delaware, in which notification about damage to the natural gas service line is again an issue. Excavation damage continues to be a leading cause of pipeline accidents. Because of the significance of this problem, in 1997, the Safety Board published its safety study, Protecting Safety Through Excavation Damage Prevention. This report analyzed accident data maintained by the U.S. Department of Transportation, Office of Pipeline Safety. This data indicated that damage from outside forces was the leading cause of leaks and ruptures to pipeline systems, accounting for more than 40 percent of the reporting failures. According to the data, two-thirds of these failures were the result of third-party damage (damage caused by someone other than the pipeline operator). These types of accidents can often be prevented if excavators institute and follow adequate safety procedures. We have observed that most contractors pay close attention to OSHA requirements, but less attention to non-enforceable recommendations. The Safety Board believes that the bulletin will be a helpful reminder to contractors performing excavation work. However, we believe that a long-term solution is to make this best practice an OSHA requirement so that long after the memory of this bulletin fades, this easily understood and very important step will be followed by most conscientious contractors. I am aware that Mr. Bob Chipkevich, Director of the Board's Office of Railroad, Pipeline, and Hazardous Materials Investigations, spoke with Mr. Long Loo about this issue. The Safety Board encourages OSHA to reconsider the full intent of the Board's recommendation and require that excavators immediately notify the pipeline operator and call 911 or other local emergency response numbers immediately if a natural gas or other hazardous substance pipeline is damaged. Pending consideration of the Board's comments, Safety Recommendation P-00-2 is classified "Open--Acceptable Response."

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2002-03-25

Communication Type: Official Correspondence

Communication Contents: To date, the Safety Board has not received any further response and would welcome any information that OSHA can provide on action taken to implement Safety Recommendation P-00-2.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2002-12-17

Communication Type: Official Correspondence

Communication Contents: Your October 4, 2002, letter states that the accident/incident rate does not support the requirement called for in the Safety Board's recommendation. In lieu of this requirement, you propose issuing a hazard information bulletin that will heighten the awareness of contractors to the dangers associated with striking gas lines. In addition, you state that OSHA will issue such a bulletin to remind contractors of the steps necessary to prevent these accidents and to call emergency services immediately if a line is struck. While the hazard information bulletin could serve as a means to immediately advise pipeline operators of proper procedures in the event of an emergency, it falls short of a requirement. The Safety Board has investigated numerous accidents and conducted a safety study on excavation damage to pipelines. In addition, the Research and Special Programs Administration, Office of Pipeline Safety (RSPA/OPS) data for 2001, indicates that excavation damage is a leading cause of pipeline accidents. Copies of the RSPA/OPS data sheets and recent Safety Board reports are enclosed for your information. Accordingly, the Safety Board requests that OSHA review the enclosed information and reconsider its position on this issue. Pending further information from OSHA that it will issue regulations to require excavators to notify the pipeline operator immediately if their work damages a pipeline and to call 911 or other local emergency response number immediately, Safety Recommendation P-00-2 is classified "Open--Acceptable Response." Thank you for your assistance. If you or your staff would like to discuss this issue, please contact Mr. Rod Dyck, of my pipeline staff, at 202-314-6469.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2004-04-13

Communication Type: Official Correspondence

Communication Contents: The Safety Board recognizes that OSHA issued Safety and Health Information Bulletin (SHIB) 03-05-21, Hazards Associated with Striking Underground Gas Lines, which reminds contractors of OSHA's requirements to prevent accidental damage to underground utility installations during excavation work and recommends notifying the pipeline operator immediately if the excavator causes damage to a pipeline. This SHIB also instructs contractors to call 911 or other emergency response numbers if the damage results in a release of natural gas or other hazardous substance. The Safety Board is pleased to learn that OSHA will include the Board's recommendation in a lookback review currently being conducted on its Excavations Standard. The Board understands the review is scheduled to be completed in September 2004, and that all recommendations will be addressed through the normal rulemaking process. Because OSHA's review of its excavation standard will include the Safety Board's recommended action, Safety Recommendation P-00-2 is classified "Open--Acceptable Response," pending completion and implementation of the revised standard.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2006-02-22

Communication Type: Official Correspondence

Communication Contents: The Safety Board notes that in OSHA's final draft report of section 610 of the Regulatory Flexibility Act (RegFlex Act), OSHA completed a review of the excavations standards that will be submitted for Department of Labor review and approval and will then be forwarded to the Office of Management and Budget for clearance prior to official adoption and release. Mr. Smith indicates that the report, expected to be issued by April 2006, will address the Safety Board's recommendation and that OSHA will recommend amending the excavations standards to implement the Safety Board's recommendation. Pending completion of the effort to revise the excavation standards, Safety Recommendation P-00-2 is classified "Open-Acceptable Response."

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2008-01-11

Communication Type: Official Correspondence

Communication Contents: The Safety Board appreciates Mr. Smith’s providing a link to the March 29, 2007, Federal Register notice in which OSHA documents that it has completed a review of its Excavation Standards pursuant to Section 610 of the Regulatory Flexibility Act and Section 5 of Executive Order 12866 on Regulatory Planning and Review, and has concluded that the Excavation Standard should remain in effect. Mr. Smith’s e-mail also indicated that OSHA has determined that the enactment of the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006 may have obviated the need for language to be added to the Excavations Standard to address the Board’s recommendation. The Board does not agree with that assessment of the PIPES Act. The Board’s concern is that the Pipeline and Hazardous Materials Safety Administration has authority over excavators only if they are also pipeline operators. We believe that all excavators should be required to notify the pipeline operator immediately if their work damages a pipeline and to call 911 or other local emergency response number immediately if the damage results in a release of natural gas or other hazardous substance, or potentially endangers life, health, or property. The Safety Board encourages OSHA to initiate rulemaking action to amend its excavation standards as outlined in Safety Recommendation P-00-2. Safety Recommendation P-00-2 is classified Open Acceptable Response, pending appropriate regulatory action by OSHA.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2000-10-19

Communication Type: Official Correspondence

Communication Contents: THE SAFETY BOARD UNDERSTANDS THAT OSHA'S DIRECTOR OF CONSTRUCTION, MR. BRUCE SWANSON, WILL REVIEW THE RECOMMENED ACTION AND THAT OSHA WILL THEN ADVISE THE SAFETY BOARD OF ITS INTENDED COURSE OF ACTION. PENDING FURTHER RESPONSE FROM OSHA INDICATING THAT THIS CHANGE IN PROCEDURE HAS BEEN IMPLEMENTED, P-00-2 WILL REMAIN CLASSIFIED "OPEN--AWAIT RESPONSE."

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2009-10-27

Communication Type: Official Correspondence

Communication Contents: The NTSB appreciates OSHA’s comprehensive review of its regulatory authority regarding excavators and OSHA’s review of the regulatory authority of the Pipeline and Hazardous Materials Safety Administration (PHMSA), which was expanded by the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006. Specifically, the PIPES Act addressed this issue directly by requiring excavators to promptly report pipeline damage and to call 911 if the damage results in a release of hazardous materials. PHMSA staff has confirmed that PHMSA has the authority to take the recommended action, but there has been no rulemaking to implement such action. However, PHMSA has advised the NTSB that it exercises its authority against pipeline operators who fail to comply with the numerous provisions in PHMSA’s code related to damage prevention. Further, PHMSA believes the state one-call laws are best enforced at the state level. To ensure state enforcement, PHMSA has several programs keyed to improving the states’ authorities and execution of them, including issuing clear guidance and providing grant funding. Because the recommended action has been overtaken by events, Safety Recommendation P-00-2 is classified Closed No Longer Applicable.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2005-11-15

Communication Type: Official Correspondence

Communication Contents: 11-15-05: Email from Mr. John D. Smith, OSHA Office of Evaluations and Audit Analysis: A final draft report of the section 610, RegFlex Act, review of the excavations standards has been completed and is being submitted for Departmental review and approval, after which it will be submitted for OMB clearance prior to official adoption and release. The report's findings will address the NTSB recommendation and we expect to recommend amending the subject standard to implement the recommendation. We expect the final report to be issued by April 2006.

Addressee Acronym: OSHA

Addressee Organization Type: G-Federal Government

Communication Date: 2007-08-09

Communication Type: Official Correspondence

Communication Contents: E-mail from Mr. John D. Smith, OSHA Office of Evaluations and Audit Analysis: Mr. Brown - I also retrieved your voice mail this morning about the NTSB recommendation. The OSHA lookback review on the Excavations Standard has been completed and the report can be accessed via the following url: http://www.osha.gov/dcsp/compliance_assistance/lookback/excavation_lookback.html. Following our last communication, OSHA determined that the subsequent enactment of the Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006 may have obviated the need for language to be added to the Excavations Standard. Please let me know if you have any questions. The following language is in the final Excavations lookback review: The National Transportation Safety Board (NTSB) recommended the OSHA amend the Excavations standard to require employers to notify appropriate authorities after excavation activities create a gas leak or leak of other hazardous substances. Since then, the "Pipeline Inspection, Protection, Enforcement, and Safety Act (PIPES) of 2006" has been enacted. Section 2 of PIPES requires all persons (including employers) engaged in demolition, excavation, tunneling, or construction to immediately call 911 if: (1) they damage a pipeline that may endanger life or cause serious bodily harm or damage to property; and (2) such damage results in the escape of flammable, toxic, or corrosive gas or liquid. The enactment of PIPES may obviate the need for OSHA to promulgate a standard implementing the NTSB’s recommendation. It also may affect OSHA’s authority to issue such a standard. OSHA will monitor the implementation of PIPES and consider whether amending the excavations standard as suggested by NTSB is necessary and appropriate.