Legal and Regulatory

The Hidden Price of Outdated Damage Prevention Laws: Part II

Advocating for updated damage prevention laws with state and federal legislators would significantly reduce the likelihood of incidents and increase economic growth as excavators become more efficient.
By Brigham A. McCown
November 27, 2018
Legal and Regulatory

Part II: Solutions

Part I of the two-part series, “The Hidden Price of Outdated Damage Prevention Laws,” discussed the flaws that exist across state and federal damage prevention programs. In short, many aspects of current damage prevention programs may encourage asset owners and locators to save money on the upfront costs of identifying and marking underground infrastructure by shifting the economic burden to the excavator without fear of civil, legal or regulatory enforcement consequences should things go wrong.

Part II identifies solutions that builders and the public can advocate for with their state public utility commission, state legislators and federal legislative representatives. If adopted, the solutions outlined would significantly reduce the likelihood of incidents and increase economic growth as excavators become more efficient.

Advanced Communications Techniques and Technologies Will Improve JOBsite Safety

One way to improve jobsite safety and prevent future incidents is to ensure the best available information about the jobsite and project is shared with the excavator. Sharing images, maps and geolocation coordinates with the excavator will prevent crews from damaging underground infrastructure they otherwise may not have known existed. Strengthening the definition of Positive Response in state statutes and public utility codes will allow all parties real-time access to all jobsite information.

Existing Positive Response Systems Are Inadequate. A “Positive Response” indicates to an excavator that either the facility owners marked the location of their underground facilities within the jobsite, or that no such facilities exist. Unfortunately, in many states marking the jobsite itself – even when not communicated affirmatively to the excavator – constitutes compliance with the Positive Response requirement. This is problematic because when the legally required time period to perform the locate has passed, the excavator may draw the conclusion that no facilities exist beneath the jobsite, when in fact the locator may not have not performed the job. This adds significant risk to an otherwise routine process. State statutes and public utility codes should require facility owners (this requirement should also extend to locators acting on behalf of facility owners) to explicitly notify excavators when the locate is completed and the jobsite has been marked or that there are no facilities to mark at the jobsite.

Enhanced Positive Response Would Be a Significant Improvement. A host of new technologies have come to market since the creation of the 811 System that could significantly improve project efficiency and excavation safety. In fact, people use many of these technologies in their daily lives (i.e. GPS location technology, smartphones and tablets). One particular system, Enhanced Positive Response, which incorporates GPS as well as digital images and detailed site maps, has shown enormous promise to improve the 811 System. The Pipeline and Hazardous Materials Safety Administration explained how EPR works and detailed the safety improvements experienced during an EPR pilot program:

Enhanced positive response allows for completed ticket information, including photos and manifests of the dig site, to be provided to the excavator in advance of the digging project. This is often provided through the one-call centers…. [U]sers of enhanced positive response report up to a 67 percent decrease in damage rates.

PHMSA continued by explaining that use of advanced technologies is critical to addressing gaps in current damage prevention programs, pointing to EPR as a tool to make sure all parties to a project are on the same page. This makes sense, because, even with a fully functioning quality Positive Response system in place, if available technology is not used, inclement weather, construction, lawn mowing or other disruptions could wash away or otherwise remove markings that were made.

States that have not done so should update their programs to include EPR as a required component of damage prevention compliance. Alternatively, PHMSA could make EPR an essential element for states seeking to have their programs certified by the federal government as sufficiently protective of public health and safety, and hence exempt from federal enforcement efforts. New technologies bring new opportunities, and EPR has proven to be a simple and effective path to eliminating unnecessary pipeline incidents, increasing operational efficiency, and reducing costs.

Mandatory Reporting of On-Time Performance and Incidents is Key to Improving Damage Prevention Programs

One Call centers should collect and publish locate data on all excavation projects from start to finish, including the date a ticket is created, the date a ticket is closed, whether the ticket was closed on time, the name of the party that performed the locate, the facility owner and any incidents or near misses that occurred during the excavation. All information should be submitted no less than annually to the Common Ground Alliance for inclusion in the organization’s annual Damage Information Reporting Tool (DIRT) Report.

Ticket On-time Completion Rates. Making ticket volumes and on-time completion rates from all One Call centers available through DIRT would provide valuable information for analysis. For example, better information could help determine whether a site that was not marked prior to excavation is significantly more likely to experience damages. This information will assist stakeholders and policymakers to assess what practices might deter future events.

Further, a comprehensive data set would help regulators identify whether certain states, regions within a state or specific locate contractors are particularly problematic when it comes to marking a site within the designated timeframe. This information could guide outreach, education and regulations to ensure all parties understand the importance of marking a site within the legally designated timeframe.

Incident Reporting. The overall occurrence and costs of excavation incidents may be underestimated due to incomplete data sets as well. Allowing subjective reporting or requiring reporting only under certain circumstances – as exists under current law – necessarily leads to a skewed data set. One primary issue with non-mandatory reporting programs is that the data is more likely to reflect what a submitter would like to convey – whether consciously or subconsciously – than what policy makers need to know. Instead, strict reporting requirements and enforcement of those requirements should be viewed as critical components of strong damage prevention programs (See Section III). PHMSA should require states to adopt such a system to be deemed compliant with federal safety standards.

After all, the true goal of any regulatory program is prevention. Without precise information about the number of incidents, where they occurred, why they occurred, who caused them and what infrastructure was damaged, it is impossible to identify narrow root causes and improve damage prevention programs to address them. A more accurate data set around excavation damages would allow for the comparison of incident rates in a number of ways. One could compare incident rates before and after a policy change and also identify particular contractors or work practices that correlate with higher rates of incident.

Consistent and Strong Damage Prevention Enforcement Programs Will Reduce Incident Rates

States must increase accountability for infrastructure facility owners to identify the location of all facilities beneath the jobsite no later than the deadline prescribed by state law or regulation. In addition to improving damage prevention outcomes, strong enforcement programs can positively impact cost-benefit considerations from a business perspective. For example, many companies are reluctant to increase overhead costs for damage prevention technologies and equipment above what is required by law or regulation. However, strong and consistent enforcement programs that increase the fines and other penalty costs of each incident will likely make the upfront investments in safety technology more financially attractive.

As described in Section II(a) it is difficult to strengthen enforcement efforts without any information on when violations occur and which facility owners (or their contracted locators) are responsible for these violations. States should require that each locate contractor submit specific locate data as part of the DIRT process, including the ticket origination date, the date a ticket is closed and whether it was closed on time, the names of the facility owner and any contract locators used to mark the site, and any incidents or near misses that occurred during the excavation. This data should then be made available to state enforcement authorities. Not every violation reported need be subjected to harsh punishment, as long as enforcement efforts are consistent. However, it is critical that the regulators and enforcement officials charged with overseeing damage prevention programs have sufficient accurate data so that they know where to focus their efforts and have the opportunity to target repeat offenders.

In 2016, in furtherance of producing a congressionally mandated damage prevention safety study, PHMSA conducted meetings with state pipeline safety and damage prevention stakeholders to discuss and evaluate each state’s enforcement program. PHMSA should continue these interactions and encourage states to share ideas and exchange information on which enforcement efforts have been most successful in improving on-time compliance and safety outcomes within their states.


Excavation damage has long been a safety and economic issue across the United States. Even if incident rates remain steady, occurrences are likely to increase as the economy continues to expand. Unfortunately, current damage prevention laws put most of the economic risk and regulatory compliance burdens on excavators despite the fact they have the least control over whether laws, regulations and best safety practices are adhered to. Some incidents are unavoidable. But, uniform adoption of the modern technologies, reporting requirements, enforcement strategies and liability realignment recommended herein will go a long way on avoiding the great majority of incidents that are avoidable.

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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