Insights

On November 14, 2012, Ohio State Senator Bill Coley (R–Liberty Township) offered testimony before the Ohio Senate bolstering Senate Bill 354, which he sponsored. Coley testified that this overhaul of the “Call Before You Dig” Laws in Ohio are necessary to bring Ohio’s law more in line with federal legislation.  Coley testified, “Call before you dig is about keeping our workers safe and protecting the integrity of our state’s infrastructure…. By updating our state regulations and complying with federal guidelines, we not only make certain that those priorities are met, we also ensure that Ohio’s industry is safe from unnecessary intervention from Washington.”

What is contained in this proposed legislation and what would it mean for Ohio utilities? The full text of the proposed legislation can be found online at www.legiscan.com.   Senate Bill 354 as introduced seeks to alter both the statutes covering public excavation  and  private excavation. 

In terms of the public excavation statute, the proposed legislation seeks to withdraw the exemptions which currently appear at O.R.C. 153.64 (A)(5) for “telephone companies classified as medium or small under rule 4901.7.01 of the Ohio Administrative Code, owners of pipelines that conduct liquid petroleum products, or cable television companies to the extent that it requires membership in an underground utility protection service.”   The most significant change to this statute however, is that the obligations of both the utility and the excavator would be governed by the obligations as set out in the private excavation statute.   This means for purposes of litigating who was at fault for damage to an underground utility, there would no longer be separate rules if the excavation was under a contract with a “public authority” (a city, state  or township), versus a private excavation, where the general contractor is a private entity.  This change would increase safety as the watered down regulations which exist now for public excavations would be tightened, and the reference to locating depth in the public statute removed entirely.  Excavators would know that regardless of whom the job is for, there is one set of rules spelling out the excavator’s obligation to inform itself of the location of the lines and to avoid contact, and setting out the utility’s obligation to accurately mark the location of its lines. 

Much of the private excavation statute found at O.R.C. 3781.25 et seq. is left untouched, with a few notable exceptions.  The statute would use the more industry accepted term “tolerance zone” rather than “approximate location” to describe the 18 inch zone in which the marked facility may be found.  The Bill adds a statute section to create a certification program for excavators through the “Positive Response System” maintained by OUPS.   This certification would measure the excavator’s competency under O.R.C. 3781.25 through 3781.32, and at least one employee of any excavator participating in the Positive Response System must hold the certificate.

The biggest changes to the private improvement statute seem to address the areas of the statute which presently create the most room for confusion.  For example, today on a large scale excavation the statute is somewhat vague on the excavator’s obligation to mark or remark sections of the excavation as the excavation progresses.  Practically, the excavator will call in the whole job, and call for re-markings as the job progresses. When the excavator arrives, they are told by the excavator what part of the job to mark on any given day.  This creates uncertainty for the locator when the ticket calls for a 30 block section of a road to be marked, but they are told they only need to locate 10 blocks for now, and the rest later. The proposed changes to O.R.C. 3781.28(E) obligate the excavator to provide written notice of the proposed schedule of the excavation’s progress.  Then the excavator and utility’s locator establish a mutually agreeable schedule for the locate, replacing the obligations to re-call for markings as the excavation progresses, as set forth under the current statute. 

The proposed legislation also adds the requirement on the excavator to pre-mark the project.  An excavator using the OUPS system must pre-mark the perimeter of the project in white, unless certain exclusions apply.  The excavator does not need to pre-mark its project if the call to OUPS sets out the precise location, direction, size and length of the project, if the excavator has conducted an on-site pre-construction meeting with the utility specifically to discuss the location of the project, or if pre-marking would interfere with vehicle or pedestrian traffic.  This pre-marking should end the issue of a locator not marking far enough off the road, or issues where confusion arises as to the actual site that needs marked.  The proposed legislation also sets out the duties of an excavator in an emergency situation.  In an emergency, the excavator would be required to make every effort to contact OUPS prior to the excavation or as soon as possible after starting the excavation.   The proposed legislation makes use of OUPS’ “Positive Response System.”  The utility will be required to mark its underground facilities, and also to report the appropriate information to OUPS for its Positive Response System. When a locator has trouble marking lines, this information will also be reported through the Positive Response System.

Senate Bill 354 is currently in the Ohio Senate Energy and Public Utilities Committee, who has heard and is considering proponent and interested party testimony.  A possible vote on the Bill by the committee is expected Wednesday December 5, 2012.  If the Bill passes the Committee, the full Senate will have the opportunity to consider the Bill.  If it passes the Senate, the Bill is passed to the Ohio House of Representatives to approve or amend.  If the Bill is amended by the House, the Senate must approve those changes, or the House and Senate create a reconciled Bill for both chambers to approve again.   Only then is the Bill presented to the Governor for signature.  Clearly, this Bill has a long way to go before it becomes a law, but it important to be aware of the proposed changes and the impact on utility damage claims in Ohio. 

See proposed version of O.R.C. 3781.29 (A)(1) in Senate Bill 354.
http://www.ohiosenate.gov/senate2012/education/how-a-bill-becomes-a-law