By Bill Turner
Tennessee’s Underground Utility Damage Prevention Act (TCA 65-31-101 et al.) has been amended seven times since it was originally passed in 1978, with the latest update occurring in 2018. We view it as a living document that needs to adapt over time to meet the ever-changing needs of the state’s damage prevention stakeholders.
Through consultation with the enforcement board and industry associations that represent both utility operators and excavators, we carefully consider the impact of adding or removing language from the chapter before filing a bill. The following agenda items do not represent finalized concepts; instead they are areas of interest where we believe there’s room for improvement to better protect underground utilities and the public they serve.
- Cross Bores: Horizontal Directional Drilling (HDD), also known as directional boring, has become one of the most commonly used techniques for installing new utilities. HDD work can be dangerous if a new line is drilled through an existing utility in a scenario called a cross bore. To reflect the widespread use of HDD across Tennessee and the potential risks associated with cross bores, the legislation should define and address both topics.
- Damage Tickets: The law requires utility operators to report damages to CGA’s Damage Information Reporting Tool (DIRT), but only a small percentage of the state’s utilities are registered in the online application and not all of the current reporters have provided the data grant that allows their damages to appear in queries or reports run by TN811 or the TPUC. Without the ability to analyze damage data, we lose the ability to put it to use in preventing future damages. A formal damage ticket would require the reporting of excavation damages to TN811. Data collected through a damage ticket could then be uploaded to DIRT and would also be evaluated to determine what effect legislative exemptions have on damages (see the trench collapse earlier this year in Spencer, TN), what parties are most likely to cause a damage, what areas of the state are prone to damage, and what types of excavation activity have the highest probability of resulting in damage.
- Enforcement Board: The Middle Tennessee Chapter of the National Utility Contractors Association (NUCA) would like to be considered as an additional source of nominations for excavator representation on the enforcement board.
- Enforcement Penalties: We’ve received input from stakeholders requesting an increase to the monetary penalties allowed for under the law. Second or subsequent violations of the law are currently subject to monetary penalties of up to $2,500 except in the case of gross negligence or willful noncompliance. The executive committee of the enforcement board has adopted an informal policy of penalizing violators at ¼ of the total allowable penalty followed by an incremental increase of at least ¼ of the amount for each future violation. We may consider an increase in civil penalties to better align with the expectations of PHMSA, the Pipeline and Hazardous Materials Safety Administration, at the federal level.
- Excavator Certification: Recently, another state passed legislation requiring excavators to be trained and certified before performing excavation work in the state. The certification program appears to have been an overall success, yielding increases in awareness and decreases in damages.
- Executive Committee: TPUC legal staff suggests that there’s room for clarification in the law concerning the executive committee of the enforcement board. In addition, there have been discussions about increasing the size of the committee beyond its current three members.
- Hand Digging: Some states have a clause in their law requiring hand digging inside the tolerance zone or when there is evidence of an unmarked utility. Our law does not include a hand digging clause but does require that excavators utilize reasonable care when working in close proximity to buried lines. We are researching other states’ laws to determine whether a more detailed definition of reasonable care or soft digging methods would be beneficial without creating an undue burden for excavators dealing with asphalt, concrete, or rock on a jobsite.
- Large Projects: Design tickets are now formally recognized in the law along with a few options for utility response, but the process is still somewhat open ended and is therefore underutilized. Large projects occurring across the state benefit from coordination and design efforts on the front end and stress the manpower and resources of utilities and their locators in the absence of those efforts. A better system for addressing large projects is needed to prevent delayed responses and excavator downtime.
- Legislative Exemptions: Regular review of notification and membership exemptions provides the opportunity to eliminate or modify those exemptions that increase the likelihood of damage.
- Membership Violation: When a utility operator is found in violation of the law for not joining the one-call service they are subject to the same penalties as an excavator who digs without calling, but monetary penalties may be more appropriate than safety training.
- Private Utilities: The Act doesn’t define or otherwise address private utility lines. Suggested definitions for private utilities include underground lines owned by utility customers or master-meter systems, but the point of ownership is under dispute. Some stakeholders view a metering device as the point where the public utility ends while others view property lines and/or easements as the dividing line. Addressing private utilities may also mean setting expectations for who is responsible for locating and marking private lines.
- Utility Fund: Civil monetary penalties collected by TPUC on behalf of the enforcement board are deposited into a utility fund that the board controls. The fund can only be used to contract with providers of public awareness, educational, and compliance training. We suggest that the funds also be used to assist small utility operators in complying with the membership requirements of the law as was included in the original bill but expired January 1, 2018.
- White Paint: The law currently requires excavators to mark their proposed dig site with white stakes or paint, but we’re routinely made aware of situations where the white-lined area does not match the scope of work defined on the locate request. We recommend that the ticket data be recognized as the legal document and encourage additional communication when they differ. There are also exceptions to the white paint requirement that need to be revisited.