SJR 75

Joint Subcommittee Studying the Underground Utility Damage Prevention Act

November 13, 2000, Richmond

After addressing several unresolved issues at its third meeting, the joint subcommittee considered amendments to the Underground Utility Damage Prevention Act.

Mandatory Incident Reporting in Other States

The State Corporation Commission (SCC) has proposed regulations that would require operators to notify the SCC of damage by an excavator to a buried electricity, telecommunications, cable television, and water and sewer facility. In response to an inquiry regarding the extent to which other states imposed mandatory reporting requirements, an SCC polling of state public utility commissions indicated that 15 states require incidents to be reported. Three additional states (including Virginia) require reporting for incidents involving gas only. Twenty-seven states and the District of Columbia do not have mandatory reporting requirements. It could not be determined whether five states require incident reporting.

As a general rule, statutes require the person conducting excavation to notify the operator of the affected facilities. The language in most statutes is similar to the Virginia Act's requirement that the person responsible for the excavation or demolition operations must notify the operator of the underground utility line if there is any damage, dislocation or disturbance to the line. Some states, including Georgia, Idaho and Mississippi, provide for notification of the one-call center operator by the excavator.

New Jersey was determined to be the only state whose buried facility damage prevention statute imposes a requirement that operators report incidents to a state agency. Its law requires operators to maintain a record of all damage to underground facilities and to provide this record to the public utility board on a quarterly basis. The other states with a reporting requirement implement it through an order of their public utility commission or through a statutory provision not included in the state's damage prevention law. For example, Virginia's mandatory incident reporting requirement for natural gas facilities is implemented through its enforcement authority under gas pipeline safety laws, and not through the act.

Mandatory Incident Reporting by Local Governments

The Underground Utility Damage Prevention Act is unique among provisions of Title 56 in its application to political subdivisions and state agencies. However, the SCC is not authorized to assess civil penalties for violations by counties, cities and towns. The SCC's proposed mandatory incident reporting regulation does not exempt political subdivisions and state agencies from its requirements, though localities would apparently remain exempt from civil penalties if they failed to comply with its provisions. Staff presented material regarding the scope of the General Assembly's authority to require local governments and state institutions to report incidents involving underground utility facilities to the SCC.

The question involves Article IX, 7 of the Virginia Constitution, which states that "corporation" or "company" shall exclude all municipal corporations, other political subdivisions, and public institutions owned or controlled by the Commonwealth. Several localities have suggested that the SCC lacks the authority to require local governments or state institutions to comply with provisions of the act because (i) the commission's powers under Article IX, 2 apply to companies and corporations, and (ii) 7 excludes political subdivisions and state-controlled institutions from the terms "corporation" and "company."

Though the issue has not been addressed in a reported court decision, Professor A.E. Dick Howard, in his Commentaries on the Constitution of Virginia, contends that 7 does not preclude the General Assembly from placing aspects of municipal corporations, such as their operation of gas or water utilities, under SCC regulation. Instead, it means that unless the General Assembly affirmatively acts, such corporations are not, by virtue of the Constitution itself, under SCC jurisdiction. Section 7 does not limit the language of 2, which gives the General Assembly authority to confer upon the SCC additional powers and duties not inconsistent with the Constitution. It lies with the General Assembly to determine by statute whether any of the aspects of the operations of political subdivisions shall be regulated by the SCC or by any other body.

The Virginia Municipal League and Municipal Electric Providers Association of Virginia (MEPAV) contended that, notwithstanding arguments regarding the constitutional limits on the General Assembly's power to bestow jurisdiction on the SCC, the legislature should uphold its policy of abstaining from bringing government-owned utilities under SCC authority. The wisdom of imposing incident reporting requirements on localities operating utilities was challenged on public policy grounds. They alleged that local governments have a greater incentive to ensure public safety than do for-profit utilities and that the requirement would impose additional costs while not serving any beneficial purpose.

Currently, private gas utility compliance with the federal gas pipeline safety act is administered by the SCC, while municipal gas utility compliance with the act is administered by the federal Department of Transportation. Members questioned why municipalities would prefer to be subject to federal government enforcement than to state enforcement. Concern was also expressed that while private gas operators must report incidents to the SCC, municipal gas operators do not. SCC staff was asked to provide the joint subcommittee with federal information on municipal gas pipeline safety.

VDOT Compliance

The act's definition of a "person" subject to its requirements includes any governmental unit, department or agency. The Virginia Department of Transportation (VDOT) is exempt from the act when performing excavations for routine pavement maintenance upon the paved portion of a roadway if the depth of the digging does not exceed 12 inches, and repairs are needed to address unforeseen occurrences that impair a roadway. In addition, VDOT employees are not required to comply with the act when excavating entirely within the right-of-way of public roadway if reasonable care is taken to protect the utility lines placed in the right-of-way by permit if the excavation does not exceed 18 inches in depth or replaces previous structures in their previous location.

VDOT advised the joint subcommittee that the agency complies with the act pursuant to instructions issued by the chief engineer requiring the proposed excavation to be called in to the notification center. However, VDOT is concerned with any requirement that it be required to join a notification center as an operator. VDOT spent over $4.7 million in the past year locating utility lines and designing new construction around these facilities.

Most of the damage to VDOT facilities is damage to traffic signals caused by permitted work. The agency has not had problems recouping its expenses. Consequently, VDOT does not support mandatory reporting of incidents to a third party.

Review of Issues

Staff compiled a list of 16 concerns with the act that were raised by joint subcommittee members at their first meeting or by speakers at the second meeting and drafted possible amendments to the act addressing these concerns. The concerns and possible responses were posted to the joint subcommittee's web site by October 1. The responses of interested parties were submitted by November 1. The joint subcommittee reviewed the 16 issues and agreed to narrow the concerns still under review to 10. The surviving areas of concern involve:

  • The SCC's proposed rule requiring mandatory reporting of incidents involving non-gas utility facilities. The proposed SCC rule generating the most interest would require that incidents meeting certain thresholds be reported to its Division of Energy. For incidents involving electric facilities, the level is 1,000 or more customer meters affected or injury or death. For telecommunications facilities, it is 1,000 or more access lines affected. For cable television or combined cable television and telecommunication, it is 1,000 or more customers affected. For water and sewer facilities, incidents must be reported if they result in injury, death or serious impact on public health.
  • The act's discrepancy in the measure of damages available to an operator and to an excavator, who is allowed to recover from an operator who has violated the act only the cost of repairing damaged equipment.
  • The absence in the act of a de minimis exemption for shallow diggings, such as yard signs used by political campaigns and real estate agents.
  • The absence in the act of requirements as to how deep non-gas utility lines must be buried.
  • The potential liability for treble damages resulting from a "willful" violation of the act may encourage persons to avoid becoming educated about the act.
  • The act should focus on training and education, with incentives or rewards for avoiding injuries.
  • Mandatory reporting to the SCC by local governments and VDOT of damage to underground facilities.
  • The current broad scope of what constitutes a "violation" under the act.
  • The notification center staffing should contracted for by competitive bidding and not be brought in-house.
  • The SCC should consider additional criteria in designating notification center service areas.

Next Meeting

The joint subcommittee's last meeting will be convened in December. The joint subcommittee will review the possible amendments to the act, receive comments from interested persons, and entertain motions with respect to each issue.

The Honorable William T. Bolling, Chairman
Legislative Services contact: Franklin D. Munyan