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02/16/2010

Longstanding dispute over liability threatens to derail underground utility protection bill

Some utilities resisting proposed changes

The latest effort to revise Ohio's underground utility protection law is foundering due to a longstanding dispute over who should bear the responsibility when utility lines are damaged during construction.

Members of the Senate Energy & Public Utilities Committee learned about the gulf separating utility owners and excavators last week when they heard testimony on S.B. 152.

Committee Chairman Chris Widener (R-Springfield) said the current system appears to cause some confusion among the different parties involved in a construction excavation project over which party is responsible for doing what – but the new bill may not resolve that confusion.

Language in the bill that makes utility companies liable to contractors if they fail to locate their lines, or provide erroneous location information, "is a big stumbling block," Widener observed.

"The liability language in this bill is a big issue," he said. "Contractors want to be absolved of liability, and I understand that to some extent, but obviously the utility companies can't accept total liability either for miss-marking or not marking," he said about the requirement to delineate underground utility lines before construction.

The bill also requires all utilities to "fully participate" in an underground utility protection service within four years of the bill's enactment.

Current law requires utility owners to participate in a utility protection service and to register the location of its underground facilities with that service, but it permits utilities to be "limited" participants in a protection service, in which case they need only identify the various political jurisdictions in which they have underground lines.  S.B. 152 would eliminate this concession.

The bill also requires all "commercial excavators" to be members of a utility protection service.

A nine-member Underground Utility Protection Advisory Committee would be created to recommend how the new law should be enforced and help resolve complaints about unfair rates charged by utility protection services.

A more powerful three-member Underground Utility Protection Commission would be established to investigate alleged violations of the statute, bring disciplinary action against "habitual or willful non-compliers" and mediate resolutions of all complaints alleging unfair rates or fees charged by utility protection services.

Tom Stewart, executive vice president of the Ohio Oil & Gas Association, told committee members that his organization supports the bill as a compromise between the affected parties, but still has concerns over liability questions.

When contacted, OGPUPS gives the excavator contact information for the utility line owner, who must then mark the facility and coordinate with the contractor, he explained. "This method assures appropriate assignment of liability and encourages effective due diligence in order to avoid facility dig-ins and disruptions."

Utility line owners shouldn't be saddled with liability for excavating accidents, he said in response to a question from the chairman.

"The people who are digging are intruding on the preexisting party," he said. "There are costs associated with both sides and the one side needs to pick up its obligation."

If S.B. 152 passed, it is possible the OGPUPS might merge with the Ohio Utilities Protection Service (OUPS), which generally comprises larger utility companies. "If a merger happens, Ohio would have an authentic one-call underground protection service."

OUPS President Roger Lipscomb said excavating contractors sometimes have to make as many as seven or eight calls to get utility lines properly marked under the current system.

The bill would create a "positive response system" where each utility would communicate to one call center that will forward the information to the contractor before the excavation date, he said. The measure would "make all the players more responsive to their duties."

No immediate action on the bill is expected unless the gulf between utility owners and contractors can be bridged.

 

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