12/07/2012

Legislators poised to modify underground utility location laws

But enforcement teeth missing

Legislation strengthening Ohio's underground utility location laws appears to be on its way to enactment in the final days of the current two-year session of the General Assembly.

On Wednesday, the House of Representatives unanimously passed H.B. 458 and an identical bill, S.B. 354, will be voted on by the Ohio Senate next Tuesday.

The bills are the product of nearly two years of deliberations by a coalition of approximately 75 "interested parties" that includes two representatives of ACEC Ohio. The bills propose a wide range of tweaks in Ohio's two utility protection laws (one "general law" regulates private construction, the other regulates public improvement projects).

Many of those who participated in development of the legislation have expressed disappointment in the bills, however, because they lack any substantive enforcement mechanism, such as monetary fines, for those who fail to comply with the laws.

Nevertheless, proponents of the legislation point out that it would move Ohio closer to a true "one-call" utility protection system.

The bills would accomplish this by repealing, effective July 1, 2013, existing law that requires developers, or their designers, to notify a utility protection service (e.g., OUPS) of a planned excavation, and further requires the developer to individually contact utilities that participate in a protection system on only a "limited basis" to inform them of the planned excavation.

In place of these requirements, the legislation provides that when the developer notifies a protection service of a planned excavation, the protection service will then notify all utilities with facilities in the project area, including limited basis participants.

The bills further require that utilities with facilities in the project area, including "limited basis participants," would be required to inform the developer of the locations and descriptions of their underground lines within 10 working days of being notified of the planned excavation by the protection service.

The legislation also:

• Requires excavators, contractors or utilities that use a protection service to obtain training in the protection of underground utilities, but specifies that an individual who is a member of a protection service is deemed to have received training;
• Requires each protection service to establish a "positive response system" that records all notifications to and from utilities, designers, developers and excavators;
• Requires excavators to define and premark the "approximate location" of an excavaton before notifying a protection service about a proposed excavation.  Utilities would be required to locate and mark their lines with 48 hours of receiving notice from the excavator or protection service;
• Includes additional requirements for an excavator using trenchless excavation methods;
• Applies certain provisions of the general protection service law to the the designer employed by the developer and includes surveyors in the defintion of designer;
• Makes the general protection law applicable to public improvement projects and makes other minor changes in the public improvement law.

One of the two bills, most likely the Senate bill, is expected to gain final passage before the General Assembly brings the curtain down on this two-year session the week before Christmas.

Download the Legislative Service Commission's analysis of H.B 458 (which is identical to S.B. 354).