Colorado's statutes for the prevention of damage to underground utilities were assessed by the federal pipeline authority PHMSA in 2014 and found to be below standard in two areas. As a result the Colorado General Assembly has revised its excavation safety statutes (Article 1.5 of Title 9) to be compliant with current best practices. The latest legislation is progressive. Most importantly, it explicitly mandates subsurface utility engineering (SUE) practice during engineering design on public construction projects to determine the location of all underground utilities in the proposed excavation area to ASCE 38-02 quality level B by a licensed professional engineer. (ASCE quality level B requires the application of subsurface remote sensing detection technologies such as electromagnetic detection and/or ground penetrating radar.) Furthermore, the legislation creates an enforcement agency for reviewing violations of Article 1.5 with the power to impose civil penalties.
Background
According to the FHWA underground utilities are a major cause of highway construction schedule and budget overruns. In the traditional approach to highway construction, the design engineer ignored utilities during design. Just prior to the commencement of construction the state one-call centre would be contacted and the utilities and telecoms with underground facilities in the area of the proposed excavation would visit the site and mark the ground with paint or flags. Utilities that conflicted with the design would then be relocated. As a result utilities are routinely relocated, often at great expense and often unnecessarily. An alternative approach is to design the highway knowing in advance the location of below-ground utilities. I have blogged about two recent highway construction projects, Birmingham AL and Cedar Falls IA that took this approach with substantive benefits. The challenge is that accurate data about the location of underground utilities is generally lacking. It is well-known that there is a consensus among DoTs that accurate and comprehensive utility location data helps make better decisions and reduces the risk of unforeseen problems with utilities emerging during the construction phase.
In addition to construction delays, damage to underground utilities during construction makes every construction project a potential disaster site. In order to promote improved safety PHMSA has developed a uniform tool that it uses for assessing state one-call systems. In 2014 PHMSA found that the Colorado one-call system had serious deficiencies. The first was that some organizations in the state were exempt from calling the one-call centre prior to excavation. Even more seriously it found that the legislation did not assign an agency to enforce the legislation.
In 2017 there was an explosion at a home in Firestone, Colorado that resulted in two deaths and a serious injury. The subsequent NTSB report concluded that as a result of local authorities allowing the development of land adjacent to oil and gas production fields without complete documentation from the operator on the location and status of its gathering system pipelines, a 1" pipeline that was still carrying natural gas was the cause of the explosion.
In 2018 the Colorado legislature revised its one-call legislation. The latest legislation is progressive, chiefly for four reasons.
- It explicitly mandates subsurface utility engineering (SUE) during engineering design for public civil engineering projects to determine the 2D location of underground utilities to ASCE 38 quality level B by a licensed professional engineer. (ASCE quality level B requires the application of remote sensing detection technologies such as electromagnetic detection and ground penetrating radar.)
- Prior to the commencement of construction in addition to painting or flagging a proposed excavation site, infrastructure owner/operators are required to provide a digital sketch, a hand-drawn sketch, or a photograph.
- It may put some degree of onus on owner/operators to provide accurate information about the location of their underground facilities.
- It creates an enforcement agency for reviewing violations of Article 1.5 with the power to impose civil penalties.
Subsurface utility engineering-required projects
In many states there is no provision as part of one-call legislation for owner/operators to provide information about underground utilities to engineers to assist with the design of civil engineering projects. This often results in the wasteful relocation of utilities. In Colorado it is now mandatory on public civil engineering projects to create a 2D map of underground utilities as part of design. Subsurface utility engineering-required projects are public projects that primarily involve horizontal construction, an excavation footprint exceeding 1,000 square feet and two feet in depth and that require the design services of a licensed professional engineer. During the design phase of these projects a licensed professional engineer is required to attempt to determine the location of all underground utilities within the proposed excavation area to ASCE 38-02 quality standard B or better. To assist this process utility owner/operators are required to either provide their available records of the approximate 2D location of their underground facilities or mark the ground in the excavation area .
Digital or paper "sketches" now required
In most states one-call legislation only requires painting or otherwise marking the ground to show the location of underground utilities. In Colorado now in addition to marking the ground owner/operators are required to provide documentation listing the owner/operator's name, the size and type of each marked underground facility, and a digital sketch, a hand-drawn sketch, or a photograph that includes a readily identifiable landmark. This is a first step toward being able to simply provide an accurate digital map of underground facilities in the proposed excavation area (as is done in the Netherlands and Flanders).
Owner/operator's responsibility for accuracy
North America, United Kingdom, Australia and other jurisdictions are characterized by a liability model that puts the onus on excavators to avoid hitting underground utilities. This provides little motivation for owners/operators to improve the quality of their information about the location of underground facilities. In Colorado Article 1.5 appears to alter this general liability model. It states that if the documentation or markings are determined to be inaccurate, the excavator shall immediately notify the owner/operator through Colorado 811 to request an immediate reverification of the location of underground facility by the owner/operator. The owner/operator is required to respond as quickly as practicable during which time the excavator can continue excavation activity with appropriate caution. Furthermore, Article 1.5 states that if the documentation or markings provided still fail to identify the location of the underground facilities, the excavator is required to notify Colorado 811, but can then proceed with excavation. Article 1.5 states that in this case the excavator is not liable for damage to the owner/operator's facilities except upon proof of the excavator's lack of reasonable care. However, accuracy is not quantified. Later in Article 1.5 where liabilities are discussed, the language relating to accuracy seems less strong. It states that excavators are liable if they fail to notify Colorado 811 of their intention to excavate or fail to exercise reasonable care in excavating. Owner/operators are liable if an underground facility is damaged as a result of the owner/operator's failure to participate in Colorado 811 or by their failure to use "reasonable care" in the marking of the damaged underground facility.
Enforcement
The most important area that PHMSA found deficient in the earlier Colorado damage prevention legislation was that it did not provide for enforcement. The most recent legislation provides for the creation of an Underground Damage Prevention Safety Commission in the Department of Labor and Employment that is independent of Colorado 811. The commission operates independently of Colorado One-call and is composed of six representative representing owner/operators, four representing engineers, contractors and excavators, four representing government agencies and one representing farmers and ranchers. It has two primary responsibilities, Firstly, to advise Colorado state agencies, the general assembly, and local governments on polices and best practices. Its other responsibility is enforcement. It is responsible for reviewing alleged violations of Article 1.5 and can order appropriate remedial action or penalties. Alleged violations are reviewed by a committee convened by the Safety Commission which must include the same number of members representing excavators and owners/operators plus one from another group. A recommendation of remedial action that includes a fine requires a unanimous vote of the review committee. Alternatively a voluntary alternative dispute resolution program is available through Colorado 811 to all owners/operators, excavators, and others regarding disputes arising from damage to underground facilities.
The legislation requires the reporting of damage to underground utilities by members (owner/operators). For each incident the location, duration of service interruption and whether Colorado 811 had been notified prior to excavation must be reported to Colorado 811. However, this is much less information than what is requested by the Common Ground Alliance's voluntary reporting of underground utility damage or PHMSA's mandatory reporting of pipeline incidents. Specifically it does not include fatalities, injuries or costs.
Summary
Taken together these modifications to Colorado's one-call legislation are progressive, especially by requiring mapping of underground utilities during engineering design for public civil engineering projects such as highway construction. Its implications for liabilities is less clear. Shared liabilities would provide an important motivation for utility and telecom owners/operators to improve the quality of their information about the location of underground facilities. That a digital or paper sketche or imagery is now required in addition to marking the ground would appear to be step in the direction of a completely digital 811 system such as KLIC in the Netherlands or KLIP in Flanders.
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