In 1999, the Common Ground Study was sponsored by the U.S. Department of Transportation in an effort to share information and perspectives and work together on all aspects of damage prevention issues. In 2000, the Common Ground Alliance (CGA) was officially formed as the leading organization to reduce damages to underground facilities in North America through shared responsibility among all stakeholders. While the intent was virtuous, the unintended reality was that facility owners consistently provided excavator data that skewed the perception of the collected data as only caused by excavator error.
The truth is that excavators were very poor at submitting data to the DIRT report for many reasons: 1) Too time-consuming for most excavators with limited staff to complete the form(s) on the numerous incidents of facility owner error; 2) Multiple reporting of the same data to different entities such as enforcement, private dirt systems, CGA DIRT, etc.; 3) “Good old boy” backend deals, i.e., exchanges of excavator hits for facility owner mis-marks; 4) No reporting options for mis-marked or unmarked lines on the DIRT form prior to 2015.
All these reasons led to the data being collected as very one-sided in favor of the facility owners. Though excavators share blame for the lack of reporting, the fact remains that the DIRT report did not provide the option until 2015 for excavators to report their number one, number two and number three complaints: 1) Unmarked lines after making a One-Call locate request; 2) Mismarked lines that led excavators to believe the tolerance zone was clear of utilities; and 3) Abandoned lines located for live lines. The only incentive for excavators to report this data would be for downtime claims, yet only several state laws provide compensation to excavators for utility line delay claims on local infrastructure projects. Federal-aid highway projects authorize delay claims to excavators for costs incurred to work around no-marks/mismarked utilities.
Focus on Excavators
The consequence of the lack of excavator reporting led the CGA to produce yearly reports pointing at a high rate of excavator error and therefore, composing best practices to guide excavators to perform safer excavation in the field. While the guidance was serving a safety advantage, the focus on all stakeholders was downplayed until just recently.
Enforcement focus or little to no enforcement
The U.S. Pipeline and Hazardous Material Safety Administration (PHMSA) announced in 2015 that it would establish a process for evaluating state excavation damage prevention law enforcement programs. PHMSA set minimum enforcement standards in states where damage prevention enforcement was deemed inadequate or non-existent.
Virginia set the stage as the model legislation that garnered the best results in reducing utility line hits. Soon, other states began adopting the Virginia Stakeholder Enforcement model. The time came to turn the table and collect meaningful data through enforcement means. The key provisions of the Virginia model legislation are mandatory reporting and stakeholder disposition of alleged violations.
In this article, we will speak to the 2017 changes to Pennsylvania’s One Call law (Act 50 of 2017 (73 P.S. §176 et. seq.)) and the results of these changes in our first full year under the new law. Several key changes occurred with our recent law change that we believe are instrumental provisions shedding new light on the stakeholder data of the past.
The key changes were:
1) Enforcement switched from Labor and Industry to the Public Utility Commission;
2) The establishment of a Damage Prevention Committee comprised of 13 stakeholders to review and make determinations of Alleged Violations;
3) Mandatory reporting on all utility “hits” and any violation of the Act; and
4) Locating of mapped abandoned lines from date of enactment of Act 50 of 2017
Excavator perception/reality from the field
For 20 years, NUCA Pennsylvania and our One Call Board Representatives tried to change the DIRT Report, streamline the reporting process to one form for all entities, collect data from excavators through NUCA National using the private Dirt reporting tool, solicit data directly from our members, push excavators to report and enter mis-marks and no marks in a “NOTE” area of the DIRT form. Unfortunately, our efforts continued to fail. We finally convinced the One Call Board to have the Customer Service Representatives question every excavator reporting a line hit to share the reason for the hit – excavator error, mis-marked or no marks. The telephone survey lasted only a few short months once the numbers supported the reality of no marks and mismarks as alleged by the excavation community. Our only hope to bring the truth to light was through mandatory reporting with an active enforcement agency. Unlike the DIRT reports which are submitted voluntarily, NUCA Pennsylvania believes making the reporting process mandatory is a more reliable way to improve damage prevention initiatives with all stakeholder groups.
By the numbers
The number of Alleged Violation Reports submitted for 2019 were 8,444, of which 827 investigations were opened, and 379 closed. A total of 1,154 violations were found, and $720,150 worth of penalties issued. In reviewing the numbers, we in the excavating community are not surprised that the numbers back up what we’ve been saying for years, and that the facility owners are the biggest violators of the One Call law in Pennsylvania. There were a total of 50 sections of the law that were violated of the 1,154 violations. The top 10 violations represented 956 of the totals. The highest two violations reported were for failure to respond in a timely manner/failure to respond at all to locate request (no marks) and failed to locate lines within the tolerance zone (mismarked lines). These two leading violations were attributed to facility owners. Of the 10 violations 5 were by facility owners, 3 by excavators and 2 by project owners.
The Pennsylvania numbers lead the observer to conclude that the two root causes for damage to utilities are not, as the DIRT reporting ostensibly states, an excavator’s failure to make proper requests. The leading cause can be derived by these new numbers. These statistics paint a different picture than the DIRT reports and supports the opinion shared by other excavators across the nation that the No. 1 reason for damage is the failure by facility owners to properly mark lines, followed by that of a facility owner to locate utilities within the tolerance zone. The No. 3 reason is an excavator’s failure to submit a One Call Ticket, and fourth is an excavators’ failure to use prudent measures when looking for lines. The numbers support this contention, as described in the chart below.
Another way of looking at the data is by comparing the data by the highest two violations of each respective stakeholder. In the chart below we compare the topmost two violations of both the facility owner and the excavator. On the first chart, the facility owners had 82 percent of the violations compared to the excavators with 18 percent. On the second chart, the facility owners were in violation 64 percent while the excavators were 36 percent at fault.
After reviewing the new data collected by the Pennsylvania Public Utility Commission (PUC), let us then compare the 2019 PUC Enforcement data collected to that reported by the Common Ground Alliance (CGA) in the latest DIRT Report (2018 Analysis & Recommendations).
1) Mandatory Reporting for all Stakeholders. As noted throughout this article, is our belief that the only true approach for data collection is to require it by law and then enforce it.
2) Abandoned lines. Many facility owners remove abandoned lines from their mapping for tax purposes. This leaves contractors in the dark when working in the field. Some PUC cases discussed in 2019 noted the facility owner failed to mark the number of lines within the tolerance zone. For example, a line was encountered, safely excavated around and protected, only to find another live line a couple of feet below the initial line encountered. Sometimes the line first encountered is abandoned, but other times it is active. Taxation should not be tied to mapping of abandoned lines and state laws should include locating all abandoned lines. Again, SUE QLA and QLB would determine unknown abandoned lines within the excavation tolerance zone. The fact is that many local and state ordinances, if they exist at all, are vague when it comes to establishing requirements for the future of abandoned utilities. Again, abandoned lines lead to project delays. There is no economic incentive for facility owners to remove obsolete or abandoned lines; they simply are abandoned in place by the owner. There are problems with this type of practice:
- Usable available underground space is reduced
- Repair of adjacent facilities is hindered
- Can be a source of contamination of the soil if not properly purged and cleaned upon abandonment
- Can create confusion when attempting to locate active lines
- Can cause excavation downtime due to the unknown status of the line
Facility Owners should retain ownership of lines abandoned in place, and the responsibility for locating them. Any abandoned line, regardless if removed from the tax roll, should still be located. The best solution would be to require the removal or repurposing of abandoned facilities whenever feasible. An incentive and/or disincentive to encourage removal of abandoned lines in rights-of-way should be considered. The fact is that abandoned lines are a problem, and they cannot be pushed aside indefinitely.
3) Delay Claims. As usual, we focused much of this article on the Excavator vs Facility Owner issues. The real point is that we need to rethink the stakeholders’ mindset of nearly 20 years where it was thought to correct the problem at the tail end of the construction process. Our knowledge of the situation has evolved over the past 20 years. New technologies have led to a different way to tackle utility locates. Today we suggest a forward approach where we start the utility locate initiative on the front-end of the process rather than expecting the contractor (crew and equipment) to locate the utilities during the construction phase placing the crew in harm’s way.
According to FHA, inaccurate utility location data during the preconstruction phase has a detrimental effect on construction and leads to:
- Increased risks for contractors
- Increased contract bids
- Increased costs due to change orders and claims
- Project delays
- Increased safety risks to contractors and the traveling public because of longer lasting work zones and the threat of hitting live utility lines, gas, and power
In 2019, the PA Public Utility Commission (PUC) seemed more focused on the facility owner and excavators too, but late in the year; a new direction surfaced, and the enforcement shifted a little toward the Designers and Project Owners. We know the number of utilities using the rights-of-way has grown as a result of an ever-growing population, growth of suburban communities, demand for additional services and developments in technology. Frequent personnel changes have further compounded compliance abilities for municipal project owners. The computer age has taken over 30 years to reach many small municipal water and sewer system owners. GIS and GPS are great tools that will lead to significant improvements to utility locations in the future. We are really at the beginning phase of mapping all utilities. The best way to get the best x, y and z locates is to employ Subsurface Utility Engineering (SUE), Quality Levels A and B (QLA & QLB). Pennsylvania law requires SUE on projects that cost $400,000 or more. We know this provision of the PA One Call law is underutilized, yet only one violation was issued in 2019. The fact is that delays in completing projects due to utility relocation issues and conflicts create safety risks and traffic congestion, and add inconvenience and expense to businesses, taxpayers, motorists, contractors, utilities and adjacent property owners. We no longer can continue to act in the same manner as we have for the last several decades. Times change. Technologies change. We also must change our methodology to answer the challenge of today and tomorrow.
According to the federal highway administration (FHWA) program guide, utility relocation and accommodation on federal-aid highway projects, 6th Edition – January 2003, “the FHWA should not participate in any construction delay claims caused by conflicts with underground utilities that would have been avoided if subsurface utility engineering had been used.”
One way in which excavation technology has changed is from open trenching to directional drilling and boring. Pre-construction utility location information detailing x, y and z positions will become more important as newer technologies become more utilized on construction sites. Noting VVH (verified vertical and horizontal) on site plans will give excavators a trusted level of confidence in the data knowing the data has been verified (FL DOT Practice).
Another technology change is GPS technology that was officially introduced as a guidance system for earthmoving machines in the late 1990s. The machine control system uses site design information combined with accurate positioning technology to automatically control equipment. The site design, typically created by an engineering firm, can be imported from the original design file into the machine’s GPS display and can be used for grade and raising the boom and bucket to maintain the predetermined design grade. GPS continues to be integrated in the construction industry and soon will be an industry standard. With this technology on the horizon, it’s another indicator that SUE QLA and QLB that provide the coordinate of x, y and z planes, is the direction we must move toward to raise overall efficiency and reduce costs of the ever-increasing prices of infrastructure projects.
The Federal Highway Administration (FHA) recognized the use of SUE decades ago and soon pushed state highway departments to use SUE to reduce utility relocate and conflict issues. They understood the high cost of delays associated with such events (15% of federal aid projects reported utility delays, per FHA). Local projects also can find cost savings by utilizing SUE on water and sewer projects. The FHA provides for delay claim procedures and payment. This same type of forward thinking is the initiative needed to change the mindset from the tail end to the front end of the construction process. For those project owners that opt to ignore the sound data supporting cost savings, they should compensate the contractor for utility related extra delay claims. This gives the project owner a choice to utilize SUE and its cost savings, or to pay contractor delay claims for failing to comply with law.
“Allowing compensation for losses sustained due to another party’s non-performance should shift liability to the responsible party. The potential of such liability should enhance the likelihood that all parties will focus on their responsibilities.” – INDOT Report of the Utility Relocation Task Force, July 1, 2004.
This article was written by Jim Dacey, Excavator, and Brenda Reigle, Executive Director of NUCA Pennsylvania.