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Thread: NUCA Response to PHMSA

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    Right Wing Conspirator GWJ_CAS's Avatar
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    Default NUCA Response to PHMSA

    OK Locate Professionals, listen up...NUCA, the National Utility Contractors Association, wants to find a way for their members / excavators to be reimbursed for costs and downtime when a line is mis-marked...I knew this was coming. You can read the entire NUCA official response to the PHMSA Notice of Proposed Rule Making here: NUCA Response

    "...NUCA also suggests PHMSA consider adding one more element to the nine already listed requirements for a comprehensive damage prevention program. Item ten should require all excavators and pipeline operator/owners to report near misses and/or mismarks to the state one-call (dig safe) system and/or Damage Information Reporting Tool (DIRT) sponsored by the Common Ground Alliance.

    Owners/operators are often not subject to the same type of penalties, are not required to reimburse excavators for any of their expenses, and are often subject to significantly lower fines. In some states, excavators must reimburse owner/operators up to three times their expenses, can be prevented from bidding on certain projects, and can be fined up to $10,000. PHMSA should include in the rule that where a pipeline is hit because of the failure to locate and mark the pipeline accurately in a timely fashion and the excavator is not at fault, owners/operators and/or their contractors (including locators) should be required to reimburse excavators for their costs. This would include any damages to the excavator’s equipment or property, and any downtime incurred by the excavator while the true location of the pipeline is determined. These losses can be significant. When an excavator is required to shut down a project because the pipeline is not marked or marked inaccurately, this is a problem that must be addressed by PHMSA. NUCA recognizes that PHMSA can only establish this requirement for pipelines included in the PIPES Act, but it would send a message to all facility owners...."

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    Conservative Meanie ifinditunderground's Avatar
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    Default Re: NUCA Response to PHMSA

    GWJ, can you help with a brief summary of the "PIPES Act", I think that would give folks a better understanding, and should give them the opportunity to form a more educated response. Thanks.

    As an afterthought, maybe a link would be better.
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    Right Wing Conspirator GWJ_CAS's Avatar
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    Default Re: NUCA Response to PHMSA

    Here is the response from the Associated General Contractors to the PHMSA Notice of Proposed Rule Making.

    "...AGC believes the proposed standards place too much emphasis on enforcement and the excavator, and too little on the owner/operator and locators’ responsibilities for timely and accurate locates and determining whether damage prevention has the support of all stakeholders. PHMSA itself commented that "in determining a state program's adequacy, PHMSA would evaluate a state's overall damage prevention enforcement program..." (page 19809). AGC is supportive of PHMSA taking a position to evaluate a state's overall damage prevention program, and encourages PHMSA to make this clearer in the proposed standards.

    PHMSA’s existing requirements for locating and marking requirements in 49 CFR 192.614 for gas pipelines and 49 CFR 195.442 for hazardous liquid pipelines recognize the crucial role and shared responsibility of owners and operators in damage prevention. PHMSA should encourage State regulatory authorities to equally enforce state laws applicable to underground facility owners and operators who fail to respond to a location request or fail to take reasonable steps, in response to such a request. Accurate and timely enforcement will help all parties ensure accurate marking and locating of the pipeline facility to prevent damage. Unfortunately, locating and marking duties are all too often neglected or performed inadequately by underground facility operators and the contract locators retained by them. It is absolutely critical that enforcement of these requirements be a high priority for state authorities.

    Without accurate locating and marking, contractors are put in harm’s way. That is why accurate locating and marking responsibilities of the pipeline operator are clearly defined in the PIPES Act Section 2(a)(1)(e), which addresses the locating and marking responsibilities of the pipeline operator, stating that “[a]ny owner or operator of a pipeline facility who fails to respond to a location request in order to prevent damage to the pipeline facility or who fails to take reasonable steps, in response to such a request, to ensure accurate marking of the location of the pipeline facility in order to prevent damage to the pipeline facility shall be subject to a civil action under section 60120 or assessment of a civil penalty under section 60122.”

    These “prohibitions” also restrict persons from engaging in demolition, excavation, tunneling, or construction “without first using that system to establish the location of underground facilities,” or “in disregard of location information or markings established by a pipeline facility.” The legislation also requires that excavators promptly report any damage to the owner or operator caused by excavation, and to call the “911” emergency number if “the damage results in the escape of any flammable, toxic, or corrosive gas or liquid…”

    In other words, the PIPES Act clearly dictates the responsibilities of excavators to call the appropriate one-call center, respect the markings provided by the pipeline operator, report any damage and call 911 in hazardous situations. Comparably, the Act dictates that pipeline owners and/or operators must respond to locate requests and provide accurate locating and marking of their facilities in a timely fashion. The PIPES Act also clearly puts these two responsibilities on equal footing. Accurate and timely locates are critical to damage prevention efforts and absolutely cannot be ignored as a step in the damage prevention process. AGC believes that in reviewing individual state damage prevention laws, it is paramount that PHMSA consider that compliance and participation of all stakeholders in preventive efforts (such as participation in one-call notification centers and accurate locating and marking of facilities) and examine whether penalties for violating state laws not only address excavators, but facility owners and operators, one-call notification centers and facility locators."

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    Right Wing Conspirator GWJ_CAS's Avatar
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    Default Re: NUCA Response to PHMSA

    Here are some links to the PIPES Act, a presentation on the PIPES Act and Damage Prevention by PHMSA, and some information about the Act and "The Nine Elements of Effective Damage Prevention"


    Full Text - PIPES Act of 2006

    PHMSA Presentation on the PIPES Act and Damage Prevention

    Excavation Safety Article

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    Senior Member UULC's Avatar
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    Default Re: NUCA Response to PHMSA

    I have been following PHMSA for the last 5 years or so. This is the Federal Regulations that I have discussed in other threads. This will be the FIRST step to require licensing or certification of locators and of companies. When state governments do not step up the federal government will. So I am looking forward to see where this goes. This will change the way contract locating firms operate. This will weed out the mediocre locator. So keep an eye out for more to come.

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    Default Re: NUCA Response to PHMSA

    Personally, I think any person that causes another person to lose money should pay damages. Whether it be a locator that mis-marks a line, an excavator that haphazardly digs for a line and hits it causing a business to lose communication lines, thus hurting their business, or a utility company that doesn't provide accurate prints to the locators. All sorts of scenarios can happen and do happen. I'm actually surprised that this business (the utility business as a whole) has enjoyed the luxury of not paying for damages, mis-marks, down-time etc... in many instances. Although sometimes the loss incurred is written off, many times it is not, as you all know.

    I guess what I'm getting at is this shouldn't come as a surprise. I'm not good at legalese and other foreign languages so I hope I'm understanding this correctly and my point isn't missing the mark. But, I think it had to come sooner or later. The locating business is enjoying luxuries that should have been stamped out LONG ago.
    "Change does not always equal progress."

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    Default Re: NUCA Response to PHMSA

    I am sure the time will come when all parties will be held with equal liabilities and fate for one will be the fate for the other!
    wise men talk because they have something to say and fools because they have to say something....plato

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    Default Re: NUCA Response to PHMSA

    I believe its time to tighten all rules in the one call white lining should be mandatory tickets should only be called in 1 or 2 times no more 5 or 6 calls to bury a drop. I marked 5 city blocks 2 utility 12 weeks before anybody showed up on the job and the first contract was a dewatering company with no ticket. I have no problem paying for down time on mismarks as long as all other rules are enforced. No mechanical digging 18 in either side of the mark, core drilling concrete for crossing etc.

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    Mke
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    Default Re: NUCA Response to PHMSA

    this sounds good, but in the begining "we" as locators will be proceeded to be shat upon. Generally speaking. There isn't going to be a "Fair" way of determining the out come of all "Incidents" unless there is a board of arbitrators that can view the information of each situation and come to a common ground out come.

    It comes back to the old saying... "Every story has 3 sides, My side, your side, and the truth". The contractors are going to look at all situations that will favor them, they will start to bill stand down time for crew that wasn't even on site (I have personally seen it). I have also seen contractors bill down time for delays that they personally caused.

    Its not just the contractors either, there is plenty of locators out there that call the day after tickets are do, hoping that the contractor will tell them they already dug and they don't need to show up.

    The board of arbitrators should be made up of a couple of locators..... i'm not just talking about a desk monkey from a locating office, I mean an actual in-field locator. A couple of Contractors. Toss in a Rep or two from local utilities. And finish her off with a regular ole joe blow. Someone who doesn't have any experience with utilities or construction.

    I'm tired of hearing stories of companies going "Halfsies" with a utility on a damage just to make one party or the other happy. I personally have a damaged 200pr on my record because the damage investigator said I didn't have a Offset where the damage took place. It didn't matter that I had over 75 offsets on this one cable, or the fact that the contractor was plowing in another cable within 10" of my marks. What mattered was the offsets, or the lack there of.

    I think this is the way utility locates should go, I just hope the locators fight for an equitable process.

    Mke

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    Default Re: NUCA Response to PHMSA

    So it is the same-o same-o, as a locator you are guilty until you prove my innocence. I sure on the board none of those contractors will change the law or penalize themselves for calling in entire property. when they are only doing landscaping 10' off the house or planting one tree in the front or back. Call in 3000 sign locations under a joint meet ticket and expect them to be located in 3 days. Call in 4 miles of row to row on a highway but only working 300' around the bridges. The cable drop company calling in 40 tickets and for the next two months you are going back and relocating them. The city calling in 6 streets all several blocks long and recall the ticket in 6 times before they start on one street and then keep calling in 24 hr relos on a friday at 1530 for the other streets until they get to them weeks later. 50% of what e mark is never going to be in the dig area. The utility company putting their stuff in the ground and not worrying how it will get located.

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    Senior Member Enjoythefall's Avatar
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    Default Re: NUCA Response to PHMSA

    If I am personally liable for damage costs, I feel that the contractors should be responsible for the productivity losses and delays that are caused when I have to spend an extra hour looking for non existent white marks, or when I have to spend two hours marking a 3 mile ditching job that was called in as a 500ft locate.

    I also want them to be responsible for any damage caused by a powered excavator within 18" of my marks, and to be required to verify and daylight every line that I've marked by hand before digging with equipment.


    I want a comprehensive ticket scope. My n=money is on the line here, so I also want field maps and white lines on every ticket I locate. Even Cable drops and Invisible fences.

    I want it to be required that the contractor maintain my marks on long jobs, instead of them all being destroyed the day after I mark them. It is unreasonable for me to have to locate the same 6000' of HP facilities in and around my local airport every week because the contractor has no respect for the marks that I'm laying.

    If there is legislature causing a crackdown on locators, it needs to keep a tight reign on contractors as well.

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    Senior Member sprayandpray's Avatar
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    Default Re: NUCA Response to PHMSA

    When they give me locating equipment that will locate PVC, fiber without any conductor, old concentric electric, and be 100% accurate, then I would be open to being held responsible for my markings. Or, barring that, be able to demand exposure from my company, the facility owner or the contractor because of a poor or non-existent signal.

    I have been around long enough to realize we, the locators, will be the least protected under this proposed rule.
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    Mke
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    Default Re: NUCA Response to PHMSA

    Enjoy, You referenced marking near an airport. Which reminds me of a pickle that me and my company face. I work for the airport. I try my hardest to lower the impact of our ongoing construction jobs here on the local one-call locators. However, The city as well as the company formerly known as qwest take offense to us marking their utilities. So, since they threatened us with PUC fines we have to make sure the contractor follows the letter of the state law. Which includes either maintaining the marks or recalling the ticket to freshen the marks in the work area. You wanna guess which one they usually use?

    This whole situation is a fine line. Some locators need a fire under their arse so they stop 4 striping a single drop, at the same time you need to smack most contractors around for abusing the one-call system. To an excavator it is an easy answer. Just hire more locators to perform the work, and then you won't have the non-responses and no late tickets. Unfortunately there will never be enough locators in the field to perform the work.

    Like I said before, I just want an unbiased 3rd party to look over the situation before any down time would be charged.

    mke

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    Default Re: NUCA Response to PHMSA

    No more emergency tree planting or fence installation Or an emergency ticket and they will not be there until the next morning. No more one hour relo because you only dug 3 feet and did not find the line which is another foot down.

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