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Thread: Official NULCA Response to PHMSA NPRM

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    Right Wing Conspirator GWJ_CAS's Avatar
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    Default Official NULCA Response to PHMSA NPRM

    NULCA has provided an official response to PHMSA regarding their Notice of Proposed Rulemaking (NPRM). The NULCA response addresses our objection to the inclusion of any rule language in support of damages for delay or downtime associated with locate marks.

    Both the National Utility Contractors Association (NUCA) and the Associated general Contractors (AGC) submitted responses to PHMSA with statements encouraging PHMSA to include language in the final rule that would support penalties for downtime experienced by an excavator in association with mis-marks or lack of marks. Such language in the final rule would make it easier for contractors to receive payment for downtime alleged to occur as a result of locator errors or no-shows. NULCA strongly objects to any such language within the final rule and believes that downtime claims are best left to the courts to decide.

    You can read the official NULCA response here.

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    Mke
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    Default Re: Official NULCA Response to PHMSA NPRM

    Where do you stand on this GWJ?

    I understand the want behind this action, but i've been around long enough to know that if you give a contractor a way to make money, they will try to make money. Is anyone fighting for the locators in this situation?

    We have a contractor working for us right now who has put us on notice that he plans to bill for down time because "we" have delayed his project to the point he won't meet the milestones or target dates for completion. He states that by not accepting the grading of the sub-base, we have delayed the completion. He doesn't state however, that the grading is unexceptable and we have actually lowered the standard to help them out, and they still havn't been able to build an acceptable sub-grade for the buidling of the Road.

    But it doesn't stop him for trying to bill us for down time.

    Mke

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    Right Wing Conspirator GWJ_CAS's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    Quote Originally Posted by Mke View Post
    Where do you stand on this GWJ?

    I understand the want behind this action, but i've been around long enough to know that if you give a contractor a way to make money, they will try to make money. Is anyone fighting for the locators in this situation?

    We have a contractor working for us right now who has put us on notice that he plans to bill for down time because "we" have delayed his project to the point he won't meet the milestones or target dates for completion. He states that by not accepting the grading of the sub-base, we have delayed the completion. He doesn't state however, that the grading is unexceptable and we have actually lowered the standard to help them out, and they still havn't been able to build an acceptable sub-grade for the buidling of the Road.

    But it doesn't stop him for trying to bill us for down time.

    Mke
    Here is my take on this matter...

    In the case of utility locates, mis-marks, delayed tickets, etc...When an excavator calls 811 for locates he has a reasonable expectation that locates will be performed within the statutory time limit (48 hours, 2 biz days, etc) barring any unusual circumstances like rain days or unusually high ticket volumes. Now, once the utility locates happen, the excavator has no real guaranty that the marks are correct, he only has what the locator painted...therein lies the root of the problem. The locator can only place marks based on available information...the locator can connect to the ped and mark the comm lines, mark the power by coupling or power mode and the gas by connecting or maybe inducing, etc. but, what if there is no tracer on the gas and you have to mark it by measurements on service cards, or the water line is PVC with no tracer and GPR won't work in the soil conditions, so you mark by as-built measurements. Now, is the locator at-fault for the excavator's downtime if the gas and water marks are off?

    What if the ticket has to be delayed because the ticket volume is off the charts and the locator has 100 tickets on his screen, or it has been raining all day, or the locator's truck flat tire or a dead battery, or the locator for that area has a 102 degree fever and had to call out sick?

    Based on the NUCA and AGC responses, in either of these scenarios the excavator should be able to bill for downtime and the locator (locate company) should have to pay...Likewise, both groups assert that they should automatically be able to bill for downtime if there is a damage as a result of a mis-mark or no mark or a missed locate...hmmm, let's explore a similar scenario...

    Excavator "XYZ" calls a ticket, it is marked in 48 hours and then he has to call the locator back because the marks are no longer visible. What did the excavator do to protect or maintain the marks? Should the locator get to bill the excavator if he failed to protect the marks? What if the same excavator damages a facility that was encountered within the tolerance zone? Now, should the locator get to bill for the downtime associated with performing the damage investigation? In both scenarios the locator responding would probably have to postpone or delay other tickets in order to respond to the excavator who failed to protect the marks or damaged the facility, so shouldn't the locator be compensated? What about the other excavators who had their tickets delayed as a result? Should they be compensated?

    It creates a viscous cycle.

    MKE, in your issue you should hold the contractor to the standard of the specification and contract he signed. If he can't meet the requirements then he should not have entered into the agreement. I would document the hell out of each and every instance, every inspection and why it failed, every discussion with the contractor and hsi response or lack thereof. Easing off on the requirements only opens you to problems, the main issue being "if you accepted it that way once, you should accept it that way again, and always". If the contractor can point to specific instances, especially if he documented the specific situation(s), where the substandard work was accepted and he was allowed to continue, then he could have a case to argue. When I have these types of issues I make it very simple...Mr. Contractor, did you read and understand the specifications? Did you execute a contract to abide by the specifications for the project? Did you submit anything in writing prior to executing the agreement requesting a change, modification or relaxing of the specification? If you read and understand the specs, executed the agreement and did not specifically request a mod in writing, then suck it up and deal with it. I have it all documented and we can let the man in the black robe with the gavel decide.

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    Junior Member Hung Powers's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    LOL...When do excavators ever maintain or protect the marks?

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    Premium Conservative OVUS1's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    The bigger issue is that NUCA and AGC have large member bases, lobbyists in the government world to further their agendas, and credibility as well. There is no voice for the LOCATORS themselves, there is only NULCA which is and has always been managed/staffed by locate company owners that could seemingly care less about anything unless it affects their bottom lines. Locators won't have to pay downtime, owners will.

    Therein lies the problem. Locators don't have single voice out there that has standing or credibility anywhere in the excavating or operating world.
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    Default Re: Official NULCA Response to PHMSA NPRM

    John,

    I take issue with your blanket statement that the NULCA BOD could care less about the rank and file staff. Whilst you are entitled to your opinion, there are those on the BOD who care a great deal about our staff of locators and the issues they face every day.

    Locators do have a voice, and it is NULCA. Each and every locator has the option of joining the organization and serving on our committees and possibly our BOD, they need only raise their hand and commit to serving.

    What troubles me is your comments about wanting to improve the daily routine for locators, but you resigned from the organization that represents the industry, where you could have made the most impact. Instead, you flatly resigned instead of standing up and advocating for the rank and file from a recognized position within the industry.

    If you have suggestions, or constructive criticism, please put it out there and let us all look at the merits and discuss. If you are just looking to stir the pot, please do it elsewhere.

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    Premium Conservative OVUS1's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    Quote Originally Posted by GWJ_CAS View Post
    John,

    I take issue with your blanket statement that the NULCA BOD could care less about the rank and file staff. Whilst you are entitled to your opinion, there are those on the BOD who care a great deal about our staff of locators and the issues they face every day.

    Locators do have a voice, and it is NULCA. Each and every locator has the option of joining the organization and serving on our committees and possibly our BOD, they need only raise their hand and commit to serving.

    What troubles me is your comments about wanting to improve the daily routine for locators, but you resigned from the organization that represents the industry, where you could have made the most impact. Instead, you flatly resigned instead of standing up and advocating for the rank and file from a recognized position within the industry.

    If you have suggestions, or constructive criticism, please put it out there and let us all look at the merits and discuss. If you are just looking to stir the pot, please do it elsewhere.
    Public forum Greg, and not just my opinion. You know NULCA is just a sham Greg - after 26 years in this business I know it even better than you. They play political footsies and never, ever take up pay, benefits, or any other employee issues. They waste time and members money on all these wonderful little "family reunion" outings in Florida, Las Vegas, and other convenient spots. They discuss ways to keep the owners safe from liability, but I have never, ever been present when anything that would actually help an employee was discussed in real fashion.

    I'm looking to improve worker conditions Greg - if you want to silence that voice then by all means try.
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    Senior Member UULC's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    Greg & John,

    I will put in my two cents. I was a member of NULCA for three years. Only after I met Mr. Bell and quizzed him on what the benefits were, did I ever receive anything from NULCA and that was a certificate. I never received an update as too what they were doing to improve my working conditions, pay, ect. To have a voice in NULCA it would cost me money in the way of taking off work and at times to travel. Most Damage Prevention Specialist (I do not like to use the word locator) cannot do that as they live pay check to pay check. I have been in damage prevention for over 25 years. I have worked for the government, contractor side and the contract locating side.

    I do not think a union is the way to go. There is no union that stands strictly for the DPS. We are a tag along group. Most DPS's would like to see a group stand up for us. Anyone who works for a contract locating company are most likely getting the shaft in pay, bennies, ect.

    Greg your company is the exception. You treat your employee’s great and expect the same from them.

    If NULCA would stand up and have something to show the DPS something that was worthwhile to be a member NULCA might get more DPS's to join. When I pluck down the money to join and see no return why should I be a part of it? It does nothing to enhance my working conditions.

    This is my opinion and I am sure there are a lot of DPS's with the same sentiment.

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    Premium Conservative OVUS1's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    Here is what I saw when I just now clicked on the "voice" for the locators (NULCA website).......

    NULCA - National Utility Locating Contractors Association
    Site Under Construction
    This site is currently under reconstruction. For inquiries, please send us an e-mail.
    NULCA stands for National Utility Locate CONTRACTORS Association. It was created for the actual contractors (owners of locate companies) and not the workers. As UULC stated, how can a regular tech get any benefit from NULCA?

    Not trying to start anything here, this was started long ago when locate companies started screwing over their employees by piling on more work and taking away what I consider rightfully earned pay and benefits. Just the stress of the work has taken a huge toll, much less the long and unpredictable hours, low pay, constant fight for any decent benefits, turnover, training standards, mid-management control (or in many cases out of control), and bad customer/public relationships. The whole system is built so one sided it's unbelieveable. As for a blanket statement on locate companies I will agree that there are some (very, very few) locate companies out there that try and do the right thing, but those same companies do very little to help the overall working conditions of the vast majority of people employed as techs in this industry, myself included. I did resign from NULCA after I realized that nothing ever changes there. They keep running the same people through the Board and no real change is ever made. They are totally reactive and very seldom do they take a pro-active stance unless there is a threat against one of the big boys out there. CGA slams the industry in their latest report on causes of damages and what does NULCA do? Sends a letter crying foul......... That is the voice for the tens of thousands of locate techs nationwide??
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    Mke
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    Default Re: Official NULCA Response to PHMSA NPRM

    I will add this.... Its not just NULCA. Most local orginizations that meet on a semi-reliable basis for the betterment of the industry cover nothing, and better yet solve nothing. They do put on a pretty good golf scramble at pumpkin ridge.


    Let me go back to the original point on this thread. This action will not benefit the locator. Again, I'm not trying to create a wall of protection for the shitty locators. I am strictly thinking on how typical excavators will look at this opportunity.

    You brought up them signing the contract and need to adhere to the specifications of the contract. If you have any experience with the construction side of things you will realize that the Construction contract is a living contract that changes throughout the entire proccess of construction. Both sides will take part in the consessions and the strict adhereing of the contract when needed.
    My entire point was solely to highlight the way excavators think. Since then, I have talked to a superintendant for one of our projects and asked him about this change in the industry and what he thought. You wanna know what he told me?

    This is what he said....

    "Hell, if they did that around here it would be great. I just hit a verizon line in downtown. The locator stated the line was on the one side of the road and it turned out to be on the other. We started grading and started pulling out orange conduit. We were told that it was on the other side, so we kept going..... untill the verizon techs showed up. If we could bill for down time, I would of called all the operators over, had them all park right next to the exposed fiber and start timing them. Hell, I'd even drive out to the site and park. I would bill the ever loving S$#@ out of them for delaying the project."

    Here is the great part, That fiber was installed on the same project they were working on. They were just doing the road work and shoulder grading. The Locator didn't even have that run on their print. To an excavator this doesn't even factor in. They don't care the reasons, they just know they can bill someone for no work.

    This comes back to the Orginizations that are supposed to help. Does putting more liability on a locators shoulder what the industry wants? I don't know about you guys, but I have enough on my shoulders. If you are trying to get the crappy locators out of the industry.... Require an exam and a acceptence review board by their peers.... that should take care of it. Not threatening them with personal claims from an excavator.

    Mke
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    Premium Conservative OVUS1's Avatar
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    Default Re: Official NULCA Response to PHMSA NPRM

    Quote Originally Posted by Mke View Post
    The Locator didn't even have that run on their print.Mke
    We lost the Virginia Natural Gas contract because they included language in the new contract that specifically prohibited us from including pertinent information in our damage investigations and I would not agree to that language. In talking to them we were told that we could not reference records issues in damage investigations. They could have already known this downtime recovery process was coming and constructed their contract to keep locate companies from showing how bad their records really are - keeping that insulation between the Operator and the locate company. In my personal experiences records are pretty bad in the communications world, but it is beyond belief bad in the gas world. Yet these same Operators have to certify to PHMSA and other regulatory entities that their records are good every year. If PHMSA were to really launch an investigation into records they would be able to fine these companies billions of dollars for non-compliance.

    I can't see any legal way that a locate company can extend financial liability to one of their employees if a records issue was the cause of a damage. The only way they could do that is if they start hiring everyone as an independent contractor/consultant and requiring each person to carry liability insurance.
    Last edited by OVUS1; July 30th, 2012 at 11:38 AM.
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    Default Re: Official NULCA Response to PHMSA NPRM

    All this talk about down time claims. . .
    As s member of management for a facility owner who locates in-house, what about my cost? Responding to restakes where the excavation is completed? Staff responding to emergency locates that are not emergencies (our construction forces are just as guilty)as defined by the law? Locating 1,500 ft when only 400 ft was actually needed? Tickets called in as normal locate tickets for surveying work instead of design tickets? If some sort of fee schedule was in place, how many of these needless locates would cease?
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    Mke
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    Default Re: Official NULCA Response to PHMSA NPRM

    Quote Originally Posted by mikea030 View Post
    All this talk about down time claims. . .
    As s member of management for a facility owner who locates in-house, what about my cost? Responding to restakes where the excavation is completed? Staff responding to emergency locates that are not emergencies (our construction forces are just as guilty)as defined by the law? Locating 1,500 ft when only 400 ft was actually needed? Tickets called in as normal locate tickets for surveying work instead of design tickets? If some sort of fee schedule was in place, how many of these needless locates would cease?
    So, here is my take. If the locator had enough time to sniff out these requests, we would just mark what is needed. Right now I locate in-house. We work closely with contractors so we don't have to mark more then what is needed. This however takes a little bit of time, and the ability to re-visit a site. At our main facility, we have one address that can cover 150 acres of property. I have had a contractor call in for a gas service and put down mark entire property. If the locators had enough time to call and talk to the contractor or better yet talk to the supervisor in the field they would get a better idea of what is going on and where the actual work is taking place.

    I believe that there is a common ground where the contractors can get accurate marks and the locators are not pissed on. This however, is going to take time. There really should be a orginization out there to help with the communication between the contrators and the locators. Fines are only used to intimidate, they are not there to improve industry conditions.

    mke

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    Default Re: Official NULCA Response to PHMSA NPRM

    Quote Originally Posted by Mke View Post
    So, here is my take. If the locator had enough time to sniff out these requests, we would just mark what is needed. Right now I locate in-house. We work closely with contractors so we don't have to mark more then what is needed. This however takes a little bit of time, and the ability to re-visit a site. At our main facility, we have one address that can cover 150 acres of property. I have had a contractor call in for a gas service and put down mark entire property. If the locators had enough time to call and talk to the contractor or better yet talk to the supervisor in the field they would get a better idea of what is going on and where the actual work is taking place.

    I believe that there is a common ground where the contractors can get accurate marks and the locators are not pissed on. This however, is going to take time. There really should be a orginization out there to help with the communication between the contrators and the locators. Fines are only used to intimidate, they are not there to improve industry conditions.

    mke
    How many times has a contractor told you one thing and done something completely different? This is why we need white paint put down. I do what the ticket says, unless it's a contractor that I've grown to trust.

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    Mke
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    Default Re: Official NULCA Response to PHMSA NPRM

    I think thats what i'm getting at. We really need to get away from the advesarial relationship we have with contractors. They don't want to get fined for hitting utilities and we don't want to get fined for missing utilities. In theory we are on the same side. However, I know of more contractors who will over call tickets to piss on the public locators. Little do they know this is the reason they get mystery marks.

    I'm saying we should have a system inplace where we are expected to communicate appropriately. White paint is fantastic, but understanding what the goal of the ticket is, is better.

    I once had qwest call in a ticket. Area was marked in white paint. I called the qwest contractor and they stated they were digging up an existing splice and that they only needed a radius of where the splice was. They however didn't know where the splice was so they painted an area big enough (30x 150) that should contain the area of the splice. I went out to the spot to locate our utilities and escort the Qwest locator. The qwest locator located the area appropriately according to the white paint. However, he did not locate the Qwest line that was 10' ouside the white paint and had the area of the splice. I let the locator know and he was adamant about only painting the white area. I located their line and their underground splice so the crew didn't have to re-mobilize and coordinate access to the secured area.

    Knowing that they were looking for the splice for the service line to this one building, the locator should of been able to hook up at this building, locate the underground splice and clear a radius of that location. It would of saved him 45 min from locating the cables that were no where near the dig area.

    I'm not saying to be friends or best buds with the excavators, but we should be able to have a proffessional understanding without the fear of having fines levied against us.

    mke

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