Tragedies often have unintended consequences. Case in point: many of us have taken off our shoes in an airport because of one man who decided to pack his footwear with explosives. Similarly, due to accidents that occurred in surrounding states causing injury and death, North Carolina’s General Assembly is in the process of rewriting the current Underground Utility Damage Prevention Act at the prompting of the federal government. I believe that several other states have received the same prompting. Thematically, it looks something like this:
Dear North Carolina,
Rewrite your law or we will. Do it before someone gets hurt.
The negotiations to rewrite the current law began in August 2012, with as many as 28 stakeholders formulating legislation that would protect the general public, excavators, and homeowners while dispersing the burden of responsibility to all those who bury lines across the state.
North Carolina’s Act
The legislation came to the attention of the North Carolina Society of Surveyors (NCSS) initially after hearing that there was opposition forming to NC Senate Bill 9 that was being promoted by senator Wesley Meredith. SB 9 was a simple law lobbied for by NCSS “requiring utility owners to locate and describe underground utilities upon written or oral request from a person who is responsible for designing or surveying underground facilities or requires a general description and location of existing underground facilities in an area.”
NCSS then learned that the more comprehensive NC House Bill 476 was being negotiated as a complete rewrite of the Underground Utility Damage Prevention Act. When Senate Bill 9 passed the senate unanimously headed for the House, the stakeholders involved in HB 476 asked us to join them in the negotiations to make sure the provisions were incorporated into the new bill.
The conflict can be summarized as follows: employers and government officials do not want anyone to be harmed while digging due to ignorance of underground utility locations. North Carolina 811 Inc., a non-profit call center providing the location of buried utilities prior to excavation on request, wants everyone who buries lines in North Carolina to become members of the One Call System as a clearinghouse to simplify the process of utility location. Utilities want teeth in the enforcement process so that if someone damages their lines while excavating, there is a procedure in place for them to recoup their losses. Surveyors want to be respected in the same manner as someone with a backhoe when they call in a ticket, but not burdened with regulation that slows down the process or causes multiple trips to a site for one job. Most importantly, all parties want North Carolina to write the law rather than the federal government.
The solution was not a simple one. But after hours of negotiation and compromise, NC House Bill 476 made its way through various committees and was signed by the governor in August. For those states yet to fight this battle, our journey might give you foundational ideas from which you may negotiate on behalf of surveyors in your state.
Issues Important to Surveyors
The following items were important to NCSS. As other states address their current laws, they may find our course of action noteworthy.
This bill defines surveyors as excavators, and one who excavates is “anyone who moves or removes rock, earth or other materials in or on the ground by use of manual or mechanized equipment … including but not limited to auguring, backfilling, boring, digging, ditching, drilling, directional drilling, driving, grading, horizontal directional drilling, well drilling, plowing-in, pounding, pulling-in, ripping, scraping, trenching and tunneling” [emphasis mine].
Therefore, in the proposed law surveyors are required to call utility locator services when driving any stake or boundary marker into the ground, which is a broader definition than the current NC law. Surveyors do not often know where every stake is going to be driven because much of the research takes place in the office while a crew is in the field initiating the first steps.
NC 811, Inc. has assured surveyors that a call may encompass the entire property to be surveyed and that locators respond to one ticket or multiple tickets that encompass the entire property. NC’s law allows for tickets to be issued in one-quarter-mile increments. Communication at this point will be critical for the locators to stay ahead of the surveying crew if the property area is significant. Most would agree that a learning curve in this process is surely on the horizon.
Calling in a ticket on the entire property becomes important because, in the new legislation, the locators have three days to respond with marks. If they have not marked the site within that time, the excavator is required to make one more call and wait three hours. The excavator is then free to proceed if they are taking reasonable care not to damage utilities. (NC811 has a free app for smart phones that allows surveyors to request the “locate” over the phone and track the ticket’s progress.)
In the past, the operators—defined in the new law as “any person, public utility, communications or cable service provider, municipality, electrical utility, or electric or telephone cooperative that owns or operates a facility in this state”—have either not responded to a locate/design ticket or have not come in a timely manner because an excavator down the street with a backhoe is a bigger priority. With the inclusion of surveyors in the excavation definition, the positive result is that locators must respond to them in the same timely manner as a utility contractor. Requests made for an entire survey site ensure the wait time is one three-day period, rather than three days for every stake driven. It is the locator’s responsibility to divide the job the best way they see fit.
NCSS received very few exemptions. We began with a request for 24-inch boundary markers and gradually reduced our request to 12-inches, but to no avail. This conclusion was reached after American Petroleum stated that pipeline throughout the state buried in the 1930s is now only 17 inches deep in places due to erosion. After pointing out that large tracts of land will often have surveyors digging for lost irons in unpredictable areas, the exemption was given that surveyors are allowed to dig if they are locating, maintaining, or repairing an existing survey pin. If the pin has to be reset, surveyors are responsible to call in a locate ticket.
Design Ticket Location
NCSS found strong opposition to the request for locates in the design process. It became apparent throughout the negotiations that the operators believed that it would open the door to anyone speculating on a piece of property. A designer is defined as “any architect, engineer, or other person who prepares or issues a drawing or blueprint for a construction or other project that requires excavation or demolition work.” A design notice is defined as “a communication to the Notification Center in which a request for identifying existing facilities for advance planning purposes is made.” Operators were assured that the implication of a surveyor requesting a design ticket suggests financial commitment, not speculation on the part of a property owner or developer.
The compromise included one of three responses from the operators: 1) marks on the ground; 2) the best available description of all facilities in the area, which may include drawings marked with a scale, dimensions, and reference points; 3) allowing the person to inspect the drawings or other records for all facilities at a location that is acceptable to both parties. This design process will see an increase in productivity as the smaller co-ops are grandfathered in over the next three years because mapping will become a requirement. Many smaller utilities and cooperatives have not mapped in the past, so this clause will become more beneficial to surveyors as time passes.
Modeled on Virginia law, North Carolina has written the enforcement section to include an underground damage-prevention review board to review reports of alleged violations and act as a mediation panel. There will be 15 members on the governor-appointed board, and a licensed NC surveyor will occupy one of those seats. This assures that no surveyor will be brought before the board without having a surveyor to hear the case.
Also, a surveyor has equal rights to file a complaint against an operator if they do not fulfill their obligation. If an infraction is determined as the result of negligence, the penalty will be training and education, plus damages and personal injury claims, if necessary. If the infraction is due to gross negligence, the fine is a combination of $1,000 plus training and education. If the violation is willful or wanton conduct, a $2,500 penalty plus education and training will be levied.
Several utility operators said that surveyors rarely cause underground utility problems; less than .02% of reported damage comes from someone surveying. However, striking a gas line that is close to the surface due to erosion or a fiber optic cable is not a statistic in which one wants to be included, no matter how small.
NC surveyors have legitimate concerns regarding the increased volume for operators resulting in the strengthening of this law. Because surveyors will be required to call, even when out of the immediate right of way of the Department of Transportation, we are concerned that such a comprehensive bill will cause multiple trips to a site, thus transferring those costs to the consumer.
We will also continue negotiations for issues such as traverse nails that are 6 to 8 inches long but are technically not exempted as the proposed bill stands. NCSS’s other concern regards the grandfathering process of the smaller co-ops. Will this mean that a surveyor may have to make multiple calls to locators that are not included in NC811 for the first two years?
We will be able to amend the bill during the short session of our legislature before the bill goes into effect, and these are the issues that we will continue to negotiate so that the burden of this regulation does not become cost-prohibitive to the consumer nor endanger the small businesses that are vital to our state’s economy.
Many other states may be heading for the same type of battle inspired by the federal government, and NCSS hopes its experience will benefit those who have yet to engage on the front lines. Be involved in the process. Remember the big picture, which is the safety of the public, but do not be afraid to ask for specific elements that protect the profession.