Legal and Regulatory

The State of Damage Prevention in 2019

DOT finalized regulations for damage prevention that allow the federal government to supersede the states where underground infrastructure is not sufficiently protected.
By Brigham A. McCown
April 27, 2019
Topics
Legal and Regulatory

Since 1998, when Congress first instructed the United States Department of Transportation to study the risks of excavation damage to underground infrastructure, progress has been slow. Department of Transportation regulations allow states primacy over damage prevention laws in most cases. The federal government had not done much in the way of pushing state programs to improve or evolve until 2007 when allocating 811 as the national “Call Before You Dig” number. Since then, excavation damage has been on the radar, even if the federal and state governments are moving slower than they should.

Most recently, the Department of Transportation finalized regulations setting procedures that allow federal regulators and enforcement professionals to supersede state authorities in states found to be less than sufficiently protective of their underground infrastructure. States have begun to take notice. In recent years, several states have strengthened, improved or at least made minor tweaks to their damage prevention laws. A legislative and regulatory review of state damage prevention activity since 2016 shows some progress in critically important areas, including improved reporting requirements and information sharing, stronger enforcement and better quality control techniques.

Reporting, Data Management and Transparency

Accurate and comprehensive data sets regarding excavation damages are needed to identify shortcomings in damage prevention programs, improve enforcement efforts and identify habitual bad actors. Federal law requires reporting only of incidents involving hazardous materials and hazardous material infrastructure. This is because the federal government has excavation damage jurisdiction over hazardous materials but does not have jurisdiction over intrastate telecommunications networks and other underground infrastructure. This means that states need to step up their reporting requirements to make sure regulators and legislators understand the full scope of damage prevention challenges. Florida and Texas took recent steps, albeit different ones:

  • Florida now requires Sunshine State One-call to provide a summary of all damage reporting data received by the system for the previous year, as well as an analysis of that data by One-call’s board of directors; and
  • Texas added a requirement that any excavator not receiving a positive response – the process whereby a facility owner notifies the excavator within the prescribed amount of time that they have marked the worksite or that none of their facilities lie beneath the worksite – must report the operator to the Texas Railroad Commission.

While seemingly minor tweaks, both changes can be very impactful. Florida and Texas are two of the most populous states in the U.S. Mandatory damage reporting in Florida will go a long way in identifying where, why and when accidents happen and who is responsible. This information makes it far easier to identify and develop effective solutions. Similarly, Texas’ updated statute will ensure that policymakers and enforcement authorities can easily identify how frequently operators fail to close tickets and who the habitual bad actors are.

Enforcement

Damage prevention law enforcement varies from state to state. Some states have laws on the books, but not a specific body imbued with authority to level penalties. Others don’t specify the consequences for violating the law, which can lead to poor or inconsistent enforcement. In recent years, Florida, Louisiana and Mississippi have all made progress on specifying which state agency is responsible for enforcing the law, or the consequences of violation, albeit in different ways.

  • Florida’s updated law allows state or local law enforcement to issue citations for violations of the Florida statute. Citations are treated the same practically regardless of which governmental entity issues the citation.
  • Louisiana gave the state’s Commissioner of Conservation exclusive authority to enforce violations of the state’s damage prevention law.
  • Mississippi added explicit penalties to its law making enforcement more consistent. A first offense in Mississippi is met with additional compliance training. The next offense comes with a fine of up to $500 and a third offense is met with a fine of up to $2,500.

It’s difficult to say whether any of these approaches are better. There’s value to having more cops on the beat as is now the case in Florida, but there’s also value in having one single enforcement authority and a level playing field state-wide. Specifying penalties and setting expectations is almost always a step in the right direction. More important is that states are recognizing weaknesses in their damage prevention enforcement and are adopting changes to better meet their needs.

Quality Control

Compared to some other damage prevention safety provisions discussed, quality control can seem benign. But the truth is, if all damage prevention laws and best practices operated smoothly and were uniformly enforced, damage rates would be much lower than they are now. Arizona, California and Idaho made small modifications to their respective programs that improve communication between parties and allow for better quality control generally.

Each of these changes brings increased organization and focus to state damage prevention programs, demonstrating the respective states are beginning to take the issue more seriously. Requiring additional vigilance from all parties is critically important. Formalizing independent offices to oversee damage prevention efforts will make it easier to streamline regulatory and enforcement efforts, identify problems and improve safety.

Which States are Leading the Way in Safety?

Each year, the Common Ground Alliance releases a Damage Information Reporting Tool (DIRT) report summarizing and analyzing all the incidents and near misses that are voluntarily reported into the system from the previous year. It’s worth noting that the data sets are incomplete since incident reporting is not mandatory and there is always some bias – even if unintentional – in any self-reporting system. Nonetheless, the data published in each year’s DIRT report is the most comprehensive data available at this point in time.

States that improve their damage prevention programs consistent with the metrics outlined in the previous sections, and those that begin to recognize the role technology, can play in improving damage prevention safety should see improved results. Continued and improved data collection practices will help identify correlations between states proactively strengthening their programs and reducing incident rates. Here’s where things stand according to the most recent DIRT report:

  • In 2017, the states with the fewest incidents per 1,000 transmissions were (in order from least to most) Rhode Island, Vermont, New Hampshire, Oklahoma and Montana.
  • In 2017, the states with the most incidents per 1,000 transmissions were (from most to least) Missouri, Maryland, Iowa, North Carolina and South Carolina.

While there are a number of factors that can contribute to a state’s statistical performance in any given year, measuring performance per 1,000 transactions is the best way to try and neutralize many of these factors. Interestingly, none of the states with the worst performance according to DIRT made efforts to strengthen their programs in recent years. However, unless and until all states adopt mandatory incident reporting, it’s impossible to know whether the states listed truly do standout as having particularly high or particularly low comparative incident rates. So, to truly answer the question “which states are leading the way in safety?” better information needs to be made available. It’s likely that more accurate future data sets will show that states making efforts to improve damage prevention safety will be the same states that standout as having the fewest incidents per 1,000 transactions.

Simply stated, the state of damage prevention in 2019 is a mixed bag. According to DIRT, the number of incidents reported went down from 2016 to 2017 despite a growing economy with steadily increasing GDP. This is great news. By comparison, incidents increased from 2015 to 2016 despite an economic slowdown. Further, several states have made moves to strengthen their programs. If this trend continues and states continue to experiment with new technologies in pilot programs, incident rates could continue to decline in the future.

by Brigham A. McCown
Brigham McCown is the founder of Aii.org, 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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