Lack of Adequate Enforcement Undermines Damage Prevention

Excavation contractors work tirelessly to perform exemplary work while providing a safe and effective work environment. Damage prevention is, and always has been, a big part of that. While the goal of increased safety is fundamental, contractors continue to face enduring challenges related to the underground facility locating process. While it is encouraging that local media is finally beginning to cover the increasing problem of missed or late responses to locate requests, lack of adequate state enforcement of the law is exacerbating an already dire situation.

The fundamental responsibilities of damage prevention are generally agreed to. All facility operators need to participate in the One Call process. Underground facilities must be marked accurately and on time in accordance with state law. Excavators need to call 811 before they dig and follow critical practices such as potholing. When any stakeholder in this process fails to meet these responsibilities, damage prevention and public safety are compromised.

LOCATING PROBLEMS ON THE RISE
Recent years have seen significant increases in facility hits attributed to the root cause of locating issues. According to the latest CGA DIRT Report, damages resulting from locating issues rose from 14.56% in 2017 to 20.79% in 2018.

Consider these high-profile cases that gained media attention:

MICHIGAN
A large gas utility was cited for late responses to some 20,000 locate requests over a short period in 2019. Following a two-month state investigation, the utility was found to have failed to respond or respond on time to an extraordinary number of locate requests made to MISS DIG in April and May of last year.

According to the Michigan Public Service Commission (MPSC), who demanded an explanation, the utility “failed to respond to over 20,000 dig notice requests, and only partially responded to many others.” According to Michigan’s damage prevention law, a utility “may be ordered to pay a civil fine of not more than $5,000 for each violation.”

Federal pipeline safety regulations (49 CFR § 192.707) require that “a line marker must be placed and maintained as close as practical over each buried main and transmission line.” Further, § 460.727 of Michigan’s damage prevention statute requires that facility operators “respond to a ticket by the start date and time for the excavation… by marking its facilities in the area of the proposed excavation or blasting in a manner that permits the excavator to employ soft excavation to establish the precise location of the facilities” within three days of One Call notification.

On June 29, 2019, six national contractor organizations, including the American Pipeline Contractors Association, American Road and Transportation Builders Association, Associated General Contractors of America, Distribution Contractors Association, National Utility Contractors Association, and Power and Communication Contractors Association, collectively encouraged the state enforcement authority to take appropriate action. In a letter to MPSC, these associations pointed out that the utility’s conceding that it had “not met expectations” was an extraordinary understatement and their plan to hire a third locating contractor to help complete the remaining marking requests was “a seemingly underwhelming response to an overwhelming number of violations.”

The Michigan State Attorney General indicated an intent to enforce the law, saying that “timely and accurate responses to MISS DIG requests are essential to safeguard the people of our state and our energy infrastructure…” and that “by neglecting to respond to these requests, utility companies put our residents’ lives in the balance, creating significant safety concerns for the consumers and their surrounding communities.”

This utility was facing possible fines upwards of $100 million. Unfortunately, after tough talk of meaningful enforcement, in the end, the utility was fined a meager $545,000.

MINNESOTA
When a local news network outside Minneapolis, Minnesota, reported that a large telecommunications carrier was under investigation for failure to meet its locating responsibilities, these associations wrote to the Minnesota Office of Pipeline Safety, which has enforcement jurisdiction over pipelines as well as other underground facilities.

The telecom carrier was facing violations for late or non-responses to more than 68,000 locate tickets, 10,000 of which went completely unanswered. While there were claims of unprecedented ticket volume, the carrier had recently released its locator, one of the largest locating companies in the country, at the beginning of “dig season.”

Minnesota state law requires underground facility operators to locate their facilities within 48 hours of notification of excavation activity. When this responsibility is not fulfilled, carriers face a fine of up to $1,000 per day, per violation. The industry letter pointed out that “unfortunately, fines associated with locating responsibilities are not normally held in the same regard as calling 811 and safe digging practices,” but that strong enforcement action can make decision-makers in charge of these operators “think more thoroughly about the consequences of poor decisions.”

Although there was not abundant information on the status of this investigation, at press time, the carrier was facing a fine of $780,000, reflecting another weak fine for a blatant disregard of meeting statutory responsibilities.

ARIZONA
About a month after the locating debacle was reported on in Minnesota, the Arizona Corporation Commission (ACC) ordered the same telecom carrier to clear up a backlog of thousands of line-location requests after the carrier made the same changes in its locating personnel in Arizona. By May of 2019, the carrier had a backlog of some 32,000 requests to locate and mark its facilities as required under Arizona’s “blue-stake” laws.

Like Michigan, the carrier faced possible penalties of up to $5,000 per violation and would be liable for all damages, reflecting a staggering $160 million citation. In August, ACC required the carrier to pay a $115,000 fine for 30 late blue-stake tickets issued in the Phoenix area between the end of May and early July.

The associations working to convince state authorities to do their job have made the point that rash actions like changing contract locating personnel at the beginning of construction season in pursuit of cost savings, coupled with a complete lack of contingency planning, “puts America’s infrastructure at risk and absolutely compromises public safety.” Unfortunately, state enforcement actions have been woefully inadequate.

INCENTIVIZING BAD BEHAVIOR
This problem is becoming rampant across the country, and the lack of adequate state enforcement is only making matters worse. Insufficient penalties not only undermine the spirit of the law, they incentivize some operators to pay negligible fines rather than do what is needed to comply with it.

At a time when a diverse range of stakeholders are calling for increased enforcement of damage prevention laws, it is becoming clear that noncompliance with facility locating requirements is often a business decision based on costs, not a matter of lacking the necessary resources to appropriately respond to increasing numbers of locate requests.

A 2006 pipeline safety bill mandated Congress to establish protocols for federal enforcement of state damage prevention law in states deemed to have “inadequate” enforcement. While the underlying intent was to crack down on excavators who fail to call 811 prior to excavation or do not follow safe digging practices, it is clear that some operators need to face strong enforcement action in order to change their reckless disregard of meeting their responsibilities. Federal pipeline officials and the many state enforcement authorities overseeing the damage prevention process need to up their game in enforcing both sides of the damage prevention coin.