Long Sought NC Underground Utility Safety Law Becomes a Reality

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On August 23, 2013 a long sought after comprehensive overhaul of NC’s Underground Utility Safety and Damage Prevention Act became law. Enactment of the law accomplishes a 15+ year goal of Carolinas AGC’s Utility Division (CAGCUD) to update and better the Carolinas’ underground utility safety laws.

The law addresses issues associated with conducting excavation activities in the vicinity of existing underground facilities, i.e. electric, gas, telecommunication, water, sewer, etc. Its purpose is to ensure public and workforce safety, as well as the integrity of vital infrastructure through the 811/call before you dig process, which is orchestrated thru NC811.

Excavating in the vicinity of underground utilities can be very dangerous. All stakeholders involved in the 811 process; particularly excavators (whether they are professional or homeowners), facilities owners and NC811 must work together in a considered process to make certain underground facilities in an area of proposed excavation are identified and safe digging practices are implemented before and during excavation activities. The new law provides the direction; processes and procedures necessary to accomplish this.

The new law brings clarity to NC’s 811/call before you dig process, spelling out each stakeholder’s responsibilities from the design/planning stage, notifying NC811 of proposed excavation activities, facility owner responses to the notice, facility marking guidelines, safe digging practices to the conclusion of excavation activities. The law also provides an enforcement mechanism for those who fail to follow the law and a process for adjudicating violations.

North Carolina’s previous law was the oldest, and widely considered weakest in the nation. It lacked even the most basic elements to be considered “effective” by the USDOT’s Pipeline & Hazardous Materials Safety Administration’s (PHMSA) Nine Elements of an Effective Underground Utility Safety & Damage Prevention Program. With this distinction came the threat of federal intervention in the way of enforcement if NC didn’t bring its law and program into compliance.

CAGCUD began seeking to update the Carolinas’ underground utility safety laws in the 1990’s. At the time, call before you dig laws and programs varied wildly between states. Some had effective laws, often brought about from an accident, death, or property damage resulting from failure in the process. Others had weak laws leaving it to stakeholders to piece together programs as best they could. North Carolina’s law fell into the latter category, with no enforcement, ambiguous direction and little in the way of defining stakeholder responsibilities in the process.

Among the short comings, the old law didn’t require universal membership by all facility owners in the NC 811 Center, which receives notices of intent to excavate and transmits them to utility owners with facilities in the area of proposed excavation. This left a majority of NC facility owners outside the 811 process. With no mechanism in place to identify facility owners who are not members of NC811, excavators had no way of notifying them of intent to excavate, leaving those owner’s facilities in the area of proposed excavation exposed to damage, in turn compromising public and workforce safety. Although many stakeholders joined CAGCUD in advocating for comprehensive overhaul of NC’s law, others were content with the status quo, resisting attempts to bring it up-to-date. It was clear; CAGCUD had to find other avenues to bring needed change to the process.

An avenue opened in 1998 when Congress passed the Transportation Equity Act for the 21st Century. The Act included a section addressing underground utility safety and damage prevention. In it the Secretary of Transportation was instructed to conduct a study of one call systems best practices (The 811 number to call did not exist at the time). The Secretary charged PHMSA, which was the Office of Pipeline Safety then, with conducting the study.

At the time, minimizing damage to facilities during excavation activities was on the National Transportation Safety Board’s (NTSB) “Top 10 Most Wanted List” for safety improvement. PHMSA invited stakeholders from affected industries to partner with them in implementing the study. In essence the government gave contractors, facility owner/operators, regulatory agencies and others the opportunity to address a substantial safety issue affecting all industries.

One Hundred Sixty-two individuals participated in the One Call System Damage Prevention Best Practices Study (OCSS) representing oil and gas, telecommunications, railroads, utilities, electric water sewer, cable-TV one call systems, excavators, locators, design engineers, one call centers, regulators and government entities. CAGCUD staff and members also participated in the study, including CAGCUD Director, Allen Gray, who served on OCSS’s 8 person Steering Team, which oversaw and directed the Study.

Eleven months later the OCSS had identified and validated over 130 “best practices” and presented them to the Secretary of Transportation.

Subsequent to the OCSS, PHMSA was asked to facilitate and sponsor the Damage Prevention Path Forward Initiative to establish a national organization to be the central clearinghouse for disseminating best practices, products and information to enhance safety and protect vital facilities. Again, stakeholders were convened to accomplish the goal, and again CAGCUD staff and members participated in the effort, which established the Common Ground Alliance (CGA), CAGCUD took an active role in developing the CGA with Allen Gray serving on its charter Board of Directors and members serving on sub committees. Most outstanding of CAGCUD leaders was Brad Barringer, President of BRS, Inc., who unselfishly contributed his time, treasure and dedication to the effort.

The CGA became a positive tool for Carolinas AGC (CAGC) to use in educating North Carolina law makers and stakeholders on the importance of having an effective 811/call before you dig program. Â It also provided “best practices” for implementing such a program, all of which helped highlight shortcoming in NC’s law and program. Once the CGA was established, other national underground safety initiatives followed: PHMSA’s Nine Element program, national implementation of calling 811 to give notice of intent to excavate and the Damage Information Reporting Tool (DIRT) to name a few. With these successes the NTSB took excavation damage off its top 10 list; a major accomplishment.

All this national level activity provided CAGC and other NC stakeholders for change with the information and back-up necessary to redouble our advocacy efforts, which we did, but it was still an uphill battle, some were still content defending the status quo.

CAGCUD continued it progressive efforts to bring stakeholders together throughout the 2000’s serving on the NC811 Board of Directors, attending state and local utility coordinating committees, actively participating in the CGA and other venues advocating for action.

In a major effort, CAGCUD partnered with other stakeholders to form the NC Underground Utility Safety Coalition (the Coalition). The Coalition was made up of individuals representing a broad range of stakeholders from the construction, telecommunication, electric, gas, cable etc. industries. It met every month for 3years (2003-06) developing comprehensive proposed underground safety legislation. The Coalition tried to have the proposed legislation introduced in the legislature, but some refused to support it, which killed the effort. The time was not wasted because years later the Coalition’s proposed legislation would become the blueprint for both Carolinas’ law.

Advocacy continued over the next several years as CAGCUD continued its vital role on the local state and national levels to better the 811 process. CAGCUD worked with AGC of America on the national level addressing issues in Washington and continued its leadership role in the CGA. Progress continued to be made; although very slowly.

In 2009 CAGC ramped-up its advocacy to update the law. CAGC staff and members met with legislators and government entities to educate them on the 811 process and NC’s program. PHMSA weighed in on NC’s program making a presentation at a meeting sponsored by the NC Public Utilities Commission in November 2009. The efforts of those committed to bettering the process were gaining momentum.

CAGC reached out to NC Representative Mike Hager, Dist. 112 who became the legislative champion for rewriting the law. He convened a meeting, inviting all stakeholders to get together and fix NC’s law. He charged them to work together, putting aside any differences and present proposed comprehensive legislation by the end of 2012. Hager assigned Allen Gray to Chair what became known as the underground utility safety stakeholder group, referred to as the “group.” The name was never official, but it stuck.

The industries involved took on Hager’s charge and with his guidance in August 2012 commenced work on the rewrite that became law. It was no easy task and each stakeholder group worked diligently to ensure their issues were addressed, while at the same time compromising to accommodate others. Rep. Hager provided the group with meeting space and monitored its work throughout negotiations making sure they kept on track.

As the end of 2012 approached the group had met just about every other week working through the minutia necessary to develop a comprehensive, effective law, and the work paid-off. In January 2013 the group presented Rep. Hager with the final product, a comprehensive rewrite of NC’s law, developed by the industries affected and with safety as the number one item. Unprecedentedly, all stakeholders had reached 100% consensus on the document.

Rep Hager took the proposed rewrite and with co-sponsors Moffitt, Murry and Tine introduced it into the NC House of Representatives as House Bill 476 (H476). The legislative process can be trying and discouraging, but with Rep. Hager’s dogged support the H476 made its way through the legislative process. In the end H476 passed both chambers of the NC Legislature with zero (0) opposition on July 24;, an extraordinary feat itself. On August 23, 2013 the rewrite became law.

Even though we have a new law, there is much work to be done for it to be effectively implemented. With this new law and continued dedication of all underground utility safety stakeholders in having it fully implemented, public/workforce safety will be enhanced and damage to vital facilities will be kept to an ultimate minimum.