Legal and Regulatory

The Hidden Price of Outdated Damage Prevention Laws: Part I

Excavators typically bear the risk of delays, cost overruns and legal liability when underground utilities are damaged. Improve the damage prevention process with better practices and technologies.
By Brigham A. McCown
November 9, 2018
Legal and Regulatory

Excavators know that dialing 811 triggers a process that requires all utilities operating in the service area to find and mark the location of their underground facilities so that they are not damaged during the excavation process. In addition, marking the location of the utilities is intended to keep the public safe, for instance by preventing an excavator from striking a gas line.

But excavators also know that in most states, the laws and regulations that govern these procedures are weak and that enforcement is even weaker. It’s an unfortunate fact that excavators and the public – typically the least culpable parties – suffer the consequences of weak damage prevention laws and lack of strong enforcement regimes.

Builders and Excavators are on the Wrong Side of Damage Prevention Programs

Unlike locators, or the one call centers that oversee damage prevention programs, excavators have real-world deadlines, which, if not met, can have serious financial consequences. Project delays can extend construction schedules, which means that the excavator remains on a jobsite longer than anticipated and therefore incurs additional costs. This is a big deal because the fundamental premise that underlies every construction project is “time is money.” Thus, the longer the work goes on, the higher the costs.

Delays on a construction site are almost always costly. The list of costs that can be incurred by a construction delay is long. Delays can mean significant additional costs incurred in the following ways:

  • increased costs for construction site facilities used longer than initially anticipated;
  • increased costs for management and supervisory staff salaries and their associated expenses;
  • extended, and thus more costly construction bonds, sureties and insurance requirements;
  • increased overhead costs for equipment like cranes and backhoes;
  • higher costs due to inefficient and unproductive use of personnel and equipment which are only partially being utilized or which cannot be used at all while they are waiting for access or information for some work areas;
  • higher costs due to delays and inefficiencies when work is pushed back into a season with unfavorable weather conditions;
  • higher material costs as prices can increase in the period that the contractor is waiting to begin; and
  • higher cost when delayed work overlaps work in the same work area, thereby adversely impacting productivity.

Additionally, costs aside, delays that cause an activity or task to be undertaken out of sequence can create logistical challenges, including:

  • access being limited due to other work being completed;
  • the work area becoming congested due to other activities happening simultaneously;
  • specialist equipment, subcontractors or personnel not having continuity of work, resulting in them having to return to site at a later date – in some cases, the equipment or subcontractors may not be available when they are required again, which could result in even further delays;
  • damage to work which, in the interim, has already been completed; and
  • construction materials, which have been ordered, having to be stored because the site isn’t ready to use them.

And, of course, staff and equipment are unable to move to the next profitable construction project. This means that the contractor likely loses potential profits, or that the new project starts late or is under-resourced, causing problems on the project and perpetuating the cycle.

One Call Centers, Utilities and Locators Often Don’t Follow Legal and Regulatory Guidelines nor Focus on Best Practices and Technologies

A critical element to a successful excavation project is full communication among involved parties. But, as the Pipeline and Hazardous Materials Safety Administration reported to Congress last year, state damage prevention laws generally do not require the use of up-to-date communication technologies. Nor do they require the use of up-to-date locate technologies. This is striking considering that new technology is available that can contribute to better locates and communication.

Further, even for states that have more stringent laws and regulations on the books, their benefits are muted if they are not properly enforced. While some states have strong enforcement programs, which are overseen by the state’s public utilities commission, a number do not. Further complicating the issue is the fact that there is an egregious lack of statistics and data on the topic. Its unknown how strict enforcement is or is not and there isn’t sufficient data to fully understand the breadth, scope and causes of incidents that occur.

This is primarily attributed to the fact that there is no nationwide standard requiring mandatory incident reporting. In fact, there is very little reliable data available surrounding the damage prevention process at all. There is currently no available data set that shows how often jobs are not completed on time and whether sites that are not marked on time are more likely to experience an incident. And, therein lies one of the significant problems. Without accurate information, it’s difficult to determine the primary causes of incidents. This information would help in understanding the importance of on-time performance and assist state enforcement agencies in rooting out bad actors that continually fail to meet their obligations.

Builders Take on All the Risk, While Profits are Widely Distributed

Builders and excavators are often the last people on the jobsite. If everyone else completes their roles accurately and on time, the risks of an incident are very low. Conversely, if the locating, marking, mapping and other preparatory work is done poorly, or not completed on time or at all, builders and excavators fly blind. Even worse, without positive response laws, and use of advanced communications techniques, builders and excavators may not even be aware that they’re flying blind or that there is a mine field beneath them.

Excavation Crews Often Aren’t Made Aware if a Project Site was Marked or Cleared Prior to Construction; Weak or Non-existent Positive Response Rules Allow This to Continue

Many states do not currently have a serious positive response program in place. “Positive response” refers to the locator’s obligation to affirmatively notify the excavator – usually through the one call center – after the worksite has been marked, or to notify the excavator that no facilities exist within the work area. If marking a site in and of itself constitutes a positive response – rather than explicit notification – an excavator has no way of knowing whether an unmarked site is clear, or whether the locator did not perform the locate within the required time frame. Such a practice can create unnecessary confusion.

Additionally, even when a locate is performed on time and a positive response is entered in the system, many systems put the onus on the excavator and require the excavator to look each ticket up on an individualized basis to determine if the site was marked in compliance with law.

Too Much Confusion Will Delay a Project or Lead to an Incident 

On-time performance is critical to economic efficiency. More importantly, from a safety standpoint, failure to mark a site on time could lead an excavator to believe that the site was cleared as having no underground facilities when they show up to break ground. This in turn could lead to an incident that would have been entirely avoidable had the facility owner or operator or contracted locator been required to provide a positive response that the locate had been performed.

Incidents can have deadly consequences for excavators, emergency response professionals, and other innocent bystanders. According to PHMSA data, there were 635 reported excavation-related incidents over the past 10 years (from 2008-2017). These incidents accounted for 23 fatalities and 132 serious injuries. In one such instance, a brave firefighter lost his life in Sun Prairie, Wisc. in July because of an excavation related gas line breach. As bad as these numbers are, the actual numbers may be significantly worse. Not all damages are reported and some incidents that get attributed to other events, like gas leaks, may actually have resulted from damaged pipes that went unnoticed during excavation.

Excavation damage also causes economic harms far broader than only those associated with the project delays described above. External economic damages resulting from hundreds of thousands of annual accidents lead to shut downs or outages of water lines, sewer lines, telecommunications infrastructure and power lines, causing billions of dollars of lost productivity. According to The Berkeley National Laboratory, power interruptions alone cost U.S. electricity consumers $79 billion annually.

External Safety and Economic Risks Can Create Massive Legal Liabilities and Associated Costs for Excavators and Construction Companies

Because damage prevention laws and regulations protect and favor utilities, locators and one call centers at the expense of excavators and builders, liability often is attributed to the excavator or builder, while locators and utilities often escape blame. Recent examples of this dichotomy include a 2010 Pennsylvania Supreme Court ruling, which held that “[a] utility will not be held liable for purely economic damage suffered by an excavating company because of the utility’s failure to properly mark its pipelines in response to a request under Pennsylvania’s One Call system.” Similarly, a 2015 case in Missouri resulted in the company performing the excavation being held liable despite the fact the worksite had been improperly marked. In that case, the party was assessed damages of $5.9 million, while the locator that mismarked the site incurred no liability.

Even in less serious cases, project delays cause problems. The simple fact is that the longer a construction site is active, the greater the risk of incident is. This is especially frustrating for contractors who are liable for things that occur outside their control, including weather, theft or property damage. The good news is that much can be done.

Part II highlights proposed changes to laws and regulations, best practices and the commercially available technologies that could significantly reduce incident rates, and thus, keep projects on schedule while helping to limit liability exposure.

by Brigham A. McCown
Brigham McCown is the founder of, a non-partisan think tank dedicated to improving the safety and security of America’s national infrastructure. His career spans three decades of strategic policy, legal, military and operational experiences across multiple industries and economic sectors. A domestic and foreign policy expert, Brigham has been a member of three presidential administrations, two presidential transition teams and is a retired naval officer and a current member of the federal government’s Commercial Space Transportation Committee and is a contributor to Forbes.

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