United States. Congress. House. Committee on Publi.

Comprehensive One-Call Notification Act of 1994 : hearing before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, One Hundred Third Congress, second session, September 22, 1994 online

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participation — very important. We believe that it should punish
failure to call ahead of time. And it should strongly encourage exca-
vators who do, in fact, errantly strike facilities to promptly report
that damage. States should tailor their programs to ensure that ex-
cavators are not fearful of reporting when they accidentally do
strike facilities. Again, an ounce of prevention is worth an ounce
of cure. We would much rather know the facility has been struck
so we can go out and make appropriate repairs as soon as phys-
ically possible.

Then, fourth, the model should include a public education compo-
nent which the Department of Transportation would complement
with its own program. In addition — and I have emphasized this
earlier — there needs to be a single, easily remembered, nationwide
telephone number dedicated to reporting planned excavations. This
nationwide number does not have to replace the existing State
numbers. The benefit, however, of a single nationwide dedicated
number is that it can be easily popularized and easily commu-
nicated through a nationwide public information campaign. We be-
lieve that it is a significant element of this bill that is important
to its success.

We are very pleased to see, Mr. Chairman, that these principles
have been included in the legislation as reported by the House En-
ergy and Commerce Committee. We understand that the Senate
Commerce Committee has held a hearing on August 3 and will
plan to hold a markup on the companion bill very shortly.

In closing, Mr. Chairman, I want to promise you and the mem-
bers of your staffs the continuing assistance of our industry in
passing H.R. 4394, along with revisions as have been proposed by
the staff. I urge Congress to pass this legislation before you ad-



32

journ because both the natural gas industry and the public need
to protect our Nation's underground service infrastructure.

Thank you, Mr. Chairman.

Mr. Rahall. Thank you, Mr. McNiel.

Mr. Thomas.

Mr. Thomas. Good morning. My name is Larry Thomas and I am
President of BP Oil Pipeline, again, one of the liquid pipeline com-
panies here in the U.S. I am really here this morning representing
the Association of Oil Pipe Lines. ALPL is an unincorporated trade
association of 74 common carriers, and we transport some 95 per-
cent of the crude oil and petroleum products delivered by interstate
pipelines in the United States.

We believe liquid pipelines are the safest mode of transportation
in the United States. There are more than 220 miles of liquid pe-
troleum pipelines in the U.S. We transport almost one-fourth of all
intercity freight in the U.S.

We do a lot of things to try to protect the safety of our pipelines
and the public, but we still have a major cause of pipeline accidents
and that is third-party excavator damage, an activity over which
the pipeline operator normally has very limited control. In order to
minimize such third-party accidents, present DOT regulations pro-
vide for routing of proposed pipelines around congested urban
areas and industrial areas. However, many pipelines were con-
structed in rural areas which now have become populated. Despite
regular aerial and, in some cases, surface inspection of pipeline
rights-of-way, above-ground signs marking pipeline routes, active
public education programs regarding the hazards of digging around
pipelines, and existing one-call systems; third-party damage contin-
ues to be a major problem.

One-call systems have become a proven method of alerting the
excavator to the existence and location of underground facilities,
and these are being used effectively today. It is and has been our
position that one-call systems should be encouraged and supported.
Today's remarks are directed towards H.R. 4394, as ordered re-
ported by the Energy and Commerce Committee and, clearly, as an
association, we support this bill.

We support broad-based participation in one-call systems, as my
colleague here mentioned a minute ago, okay, by both owners and
of all underground facilities, including hazardous liquid pipelines,
and excavators. We are especially pleased that under this legisla-
tion, government entities, public utilities, as well as private under-
ground facility owners, are required to participate in the program.
Having everybody in the program is key.

Participation is driven, in large part, by public awareness. The
industry already has existing programs to promote public aware-
ness. A single, nationwide toll-free telephone number that is envi-
sioned in the bill will clearly help this public education. This
should increase, I think, the effectiveness of one-call systems.

We also support an aggressive education program to further the
use of one-call systems. Initiation of a government-sponsored public
education program is a positive approach. The bill calls for the cre-
ation of State one-call programs, either through the establishment
of new programs through the modification or improvement of an
existing program and that a State program may be implemented by



33

a nongovernmental organization. I think this "grandfathering" of
existing programs is a very positive feature.

The bill provides grants to States to develop and upgrade exist-
ing one-call systems. In addition to development of one-call sys-
tems, States should be encouraged to participate in oversight and
one-call compliance. Without some enforcement, one-call does little.

We agree that the criminal penalties and enforcement section,
which leaves to the States the discretion to prescribe the actual
penalties for violations, is appropriate. We also strongly believe
that it is advisable for DOT to craft a model program, using its ex-
pertise and resources of others involved in one-call, to assist the
States in their efforts. Clearly, Dr. Sharma and George Tenley ad-
dressed that in their testimony. To do so through the rule-making
process fosters the greatest participation by interested parties and
provides ample time to consider the various -comments received.

With respect to States' rights, we understand the funds con-
templated for grants to States to establish these systems are cur-
rently in escrow. These funds result from user fees currently paid
to the Department of Transportation by the pipeline industry.
While our industry does not object to fund use for the establish-
ment of a one-call incentive program, all facility operators in one-
call notification systems should bear their appropriate financial
burden of the incentive program. This makes the programs basi-
cally self-funding as they go forward.

We encourage the subcommittee to report the pending legisla-
tion.

Mr. Chairman, that concludes my testimony. Thank you very

much.

Mr. Rahall. Thank you, Mr. Thomas.

Mr. Gainer.

Mr. Gainer. My name is Walter Gainer. I am President of W.F.
Wilson & Sons, a utility contractor in Ellicott City, Maryland and
a member of the board of directors of the National Utility Contrac-
tors Association. I was Chairman and I wrote the State law in
Maryland for the one-call system that we got passed four years ago.

You have a draft of my testimony, and I want to hit a couple of
high points of my testimony.

I am probably the only person in this —

Mr. Rahall. Mr. Gainer, excuse me for one second. I forgot that
we have a roll call vote on the Floor. Let me go over and vote, and
ask the subcommittee to be in recess; and I will come right back.

Mr. Gainer No problem.

Mr. Rahall. Thank you.

The subcommittee is in recess.

[Recess.]

Mr. Rahall. The subcommittee will regain itself.

Mr. Gainer, please continue.

Mr. Gainer. There is probably no need to reintroduce myself.

I am probably the only person in this room that uses this one-
call system on a day-to-day basis, because I am a contractor. It
does work. I believe that all but one State has some type of one-
call system, some of them are not as good as others, but from a
safety point of view, it protects the public. It keeps them from get-
ting in and prevents interruptions.



34

We have used the one-call system for 20 years in Maryland, and
we have finally put teeth into it and got it to where it is manda-
tory. Everybody has to call. There shouldn't be any exemptions to
anybody from using this system; I don't care whether you work for
the State, the cities or railroads, whatever. It only takes a second
to make one call, and safety is good business.

I think you will find that there should be no exemptions in the
law, because once you open the door up, it allows everybody to seek
exemptions. The main problem is that most States are not manda-
tory.

I think that anybody that has an underground system should be-
long to a one-call system, so the contractor has one place to call
and a central clearinghouse. The reason I think this is, it protects
the public, it lets the owner of the facility know who is working in
his area at any time of the day, and it protects the contractor.

We found when we passed the bill in Maryland, the hardest
thing to get by were the municipalities and the State road commis-
sions. Your 1-800 number, I don't quite understand how that will
work for the whole United States having one number, but that all
can be worked out. We need a good national campaign to let every-
body know what the one-call system is so everybody will use it. The
fees, they should be paid by the owners of the systems because
they are a public service and what they are doing is protecting
their public facilities, which are a public service, from anybody who
is excavating in that area.

One last point I would like to make is that my father, an old
West Virginia politician, once said, they don't put brass plaques on
underground monuments. But what I do believe, in the placement
of new facilities now, is that there ought to be a template set up
so that these young men that are going out there and marking
these lines have at least an idea of where everybody is in the same
place, and at a minimum, what they ought to do is put a tape or
a piece of wiring with them so that we can — the people that are
marking underground facilities from the one-call systems — readily
locate facilities, because believe me, they are putting things in the
ground that run around like snakes.

We, as contractors and utility contractors, support this bill and
will be glad to help you in any way that is possible to get this thing
passed.

Thank you for the opportunity to testify.

Mr. RAHALL. Thank you very much, gentlemen. Let me just make
one point of clarification, Mr. Gainer, on your testimony. As I un-
derstand the concept behind the 1-800 nationwide number, the
idea is that if you don't remember your State number, you can call
that one nationwide number, and it would refer you to the State
number.

Mr. Gainer. As long as you don't have to call on a daily basis.
For instance, I use the thing probably four to five times a day.
There is a plumber across the street from me probably makes 50
faxes or probably makes 50 phone calls a day. If you run that on
a day-to-day basis through a 1-800 national number, you ought to
have something that looks like the Empire State Building with peo-
ple in it to answer all those phone calls and disperse them some-
place else.



35

I don't know how many calls they get in the State of Maryland
a day, but I would say it is in the thousands.

Mr. Rahall. Okay. I have no further questions.

Does the gentleman from Michigan, Mr. Ehlers?

Mr. Ehlers. No.

Mr. Rahall. The gentlelady from Washington?

Ms. Dunn. No.

Mr. Rahall. Gentlemen, thank you very much for your testi-
mony. We appreciate it.

That concludes the subcommittee's hearing on H.R. 4394,, and
we will meet again next Tuesday pursuant to my opening state-
ment for further action on this legislation.

Oh, yes, the gentleman from Michigan is recognized.

Mr. Ehlers. Thank you, Mr. Chairman. I didn't have an opening
comment, but I do have a closing comment.

I just wanted to comment, in Michigan we have the one number;
you call the MISS-DIG, D-I-G, which has worked very well, and
it is operated basically by the utilities. Since we put that in, it has
saved a lot of problems and certainly a few lives, and we have had
no major problems with puncturing of gas lines — occasional small
puncture, but very, very rare. And generally anyone who calls
MISS-DIG digs in the right place, and we haven't had a problem
with anyone who calls. The only remaining problems appear to be
those who don't call. So I think the basic idea is correct.

Whether or not the Federal Government has to be involved is a
totally different question, but certainly each State should have a
program like ours.

Mr. Rahall. Yours is mandatory then?

Mr. Ehlers. No. Actually, it is voluntary by the utilities. It is
cost-effective for them to avoid major conflagrations, electrocutions
and things like that. So it saves them a lot of money. It is an in-
credible expense if a contractor cuts through a telephone cable or
if there is a fire or a water-main break or something like that. And
so it is run by the industry, and it has been cost-effective.

Mr. Rahall. Very good. Thank you.

No further comments?

The subcommittee stands adjourned then.

[Whereupon, at 11:50 a.m., the subcommittee was adjourned, to
reconvene Tuesday, September 27. 1994.

[Prepared statements of witnesses follow:]



36




PREPARED STATEMENTS SUBMITTED BY WITNESSES

NATIONAL UTILITY CONTRACTORS ASSOCIATION

4301 N FAIRFAX DRIVE

SUITE 360

ARLINGTON. VIRGINIA 23203-1627

[703] 358-9300 FAX (703) 358-9307



Statement of Walter Gainer

on behalf of the

National Utility Contractors Association



before the



Subcommittee on Surface Transportation

Committee on Public Works and Transportation

U.S. House of Representatives



Thursday, September 22, 1994



"Comprehensive One-Call Notification Act of 1994"



CONSTRUCTORS OF WATER. SEWER AND UNDERGROUND UTILITY SYSTEMS



37



My name is Walter Gainer, and I am President of W.F. Wilson and
Sons, Inc., a utility construction business located in Ellicott City, Maryland. I
also serve on the National Utility Contractors Association (NUCA) Board of
Directors. NUCA represents companies that construct water, sewer, gas,
electric, communications, and other underground utilities and supply the
equipment, materials, and services for construction.

NUCA Supports H.R. 4394

Procedures to locate and mark underground facilities have improved
significantly over the years without the benefit or imposition, depending on
one's viewpoint, of federal law. One-call notification programs have prevented
scores of excavation accidents and saved everyone a lot of time, money, and
grief. For decades, the construction industry has worked with utility owners,
one-call centers, and others at the state and local level to create and improve
one-call notification programs that are accessible and easy to use. Most
notification centers do an outstanding job.

Despite significant progress, a more effective excavation damage
prevention system is necessary. Third-party damage continues with
unacceptable frequency because some states have not established one-call



38

notification programs in some areas. In areas that have one-call programs,
underground-facility owners fail to participate, excavators fail to contact one-
call centers before digging, equipment-operators make mistakes, and facility-
operators miss or improperly mark facilities.

Meanwhile, underground-facility installation continues to increase rapidly
due to economic growth, technological progress, and the relocation of aerial
facilities. Furthermore, many abandoned underground facilities remain buried,
which create an additional hazard. Things are getting pretty crowded
underneath it all, and excavators face potential instant disaster regularly.

Minimum national guidelines are needed to effectively manage the risk of
excavation damage. H.R. 4394 (Amendment in the Nature of a Substitute,
Discussion Draft dated September 14, 1994) provides a good starting
framework, assuming that the states are willing to consider and accept its
provisions.

Most importantly, the bill calls for participation by all excavation damage
prevention stakeholders, including some excavators and facility operators who
have historically shunned one-call programs. It also establishes an important
public-education program to generate greater awareness of the system, and it
will ultimately provide a model state program that will encourage a degree of
beneficial uniformity without impairing state flexibility to institute specific



39

standards. In sum, we expect that H.R. 4394 will reduce the frequency of
third-party damage and support the bill.

The remainder of my testimony summarizes our support of important
provisions in H.R. 4394 and includes our concerns about some elements of the
bill. I also welcome the opportunity to answer any questions the Subcommittee
may have about excavation.

Comments on Specific Issues
I. Improved Participation

If adopted by the states, the comprehensive participation required
by H.R. 4394 will do more than anything else to reduce damage to
underground facilities and excavation equipment. It will also protect the
environment from toxic discharges and, most importantly, increase
excavator safety and the safety of the general public.

Although exemptions have been carved out of H.R. 4394 for
reasons unrelated to safety, we ask the Subcommittee to reject any
additional exemptions. Ideally, all underground-facilities operators
should be required to participate in one-call programs and all excavators
should be required to notify one-call centers prior to excavation.



40

Our support for H.R. 4394 is largely contingent on its broad
coverage.

A. Programs in Every Community

To effectively manage the risk of third-party damage,
one-call notification programs are needed in every community.
H.R. 4394 may put us over the top by requiring states to consider
comprehensive statewide one-call programs and by providing grants
to states that adopt the substance of the provisions or establish an
equally effective program.

B. Coverage of Most Underground Facility Owners

H.R. 4394 will force many reluctant facility owners to
participate in one-call programs. We are particularly pleased that
the mandate will extend to water and sewer utilities, traffic control
operators, and government at every level. Facility owners have an
obligation to protect their facilities.



41

C. Coverage of Mechanized Excavation

All excavators should notify the appropriate one-call center
except in the case of routine residential or landscaping activities
performed with non-mechanized equipment. H.R. 4394 goes a
long way toward reaching this goal.

II. Nationwide Toll-Free Number System

We support Section 3 of H.R. 4394 and are pleased that the
Secretary of Transportation will consult with excavators and others before
establishing this system.

The idea of a toll-free number system that provides general
excavation damage prevention information such as individual state 800
numbers is laudable because it will provide excavators with a useful and
convenient resource and generate public awareness.

On the other hand, we do not believe that one number can be used
to provide excavation notification. It would have to be capable of routing
incoming calls from excavators to any one-call center where excavation is
planned (e.g., if a contractor in Bozeman, Montana calls to provide
notice of a planned excavation in Phoenix, Arizona, the call must be
routed to Arizona). We also note that one -call notification numbers have



42

been advertised at great expense for years and work just fine. Many
excavators already maintain direct computer contact with notification
centers.

III. Elements of State Programs and the Model Program

We generally support the state-program elements in Section 5 of
H.R. 4394. However, we prefer the original version of Section 5(a)(8),
which stated that an appropriate fee schedule would be imposed on
facility operators to cover the state programs' costs. The great majority
of one-call systems are funded exclusively by facility operators who want
to protect their assets in the public right-of-way. In addition, most work
performed by excavators is for facility operators. Finally, to ensure
universal excavator participation, we need to safeguard the excavation
damage prevention system from becoming a revenue raising bonanza. In
at least one community, opening the excavators' checkbook to the local
authorities has generated excavator ill-will.

We also encourage the Subcommittee to consider an additional
program element whereby the states would establish guidelines requiring
facility operators to ensure that new underground construction and
installations can be reasonably located at a later date as built. For



43

example, a state might require that metallic tracer wire or tape be
installed above new concrete sewer collectors.

NUCA strongly supports the proposed model state program, the
proposed public education campaign, and the call for annual workshops.
We look forward to working with the Secretary of Transportation on
these matters, which may become the most successful features of the bill.

IV. Penalties and Enforcement

We support the changes that have been made to Section 6 of
H.R. 4394, which reduced the measure's original heavy emphasis on
sanctions. While sanctions are needed in some instances, we believe that
education and greater participation in one-call programs will more
effectively reduce damage.

We are pleased that changes have been made to eliminate heavy
civil fines, assess increased penalties for knowing and willful violations
only, reduce penalties for violators who promptly report actual or
potential damage, remove the contentious issue of what constitutes a
habitual violator, and generally give the states flexibility to design their
own enforcement systems.



44
Conclusion

H.R. 4394 (Amendment in the Nature of a Substitute, Discussion Draft
dated September 14, 1994) doesn't put the states' feet to the fire to the extent
that many might prefer, but it does promise to improve the existing
underground notification system.

Excavators, either contractors or facility operators, face the uncertainty of
weather, traffic, production schedules, labor shortages, cash flow, competition,
jurisdictional disputes, equipment breakdowns, regulatory overkill, and
unknown subsurface conditions. However, few are as potentially dangerous as
unknown subsurface conditions. H.R. 4394 will improve excavation safety and
we urge its approval.

Thank you for the opportunity to testify. This issue will be around for a
while, and we look forward to working with this Subcommittee in the future.

ff » #



45



TESTIMONY



*****



Statement of

James L. Martin

Legislative Counsel

National Governors' Association



before the

Committee on Public Works and Transportation
Subcommittee on Surface Transportation
U.S. House of Representatives



on

H.R. 4394

The Comprehensive One-Call Notification Act of 1994



September 22, 1994



NATIONAL GOVERNORS' ASSOCIATION

Hall of the States«444 North Capitol Street • Washington, DC 20001-1572* (202) 624-5 SO0



46



Good morning, Mr. Chairman and members of the committee. After consultations
with the staffs of the national organizations of state and local elected officials —
Governors, state legislators, mayors, and county officials — I am pleased to offer a
few comments on H.R. 4394, The Comprehensive One-Call Notification Act of
1994. My comments are based on a September 14 staff discussion draft that
reflects consultations with state and local government representatives.



Forty-nine states now have one-call notification systems; Hawaii is the only state
without such a system. Some of these systems are just starting, while others are
top of the line. The important point is that all states are now acting without federal
legislation.



The new staff discussion draft of September 14 contains some major changes
sought by state and local government representatives. The most important point is
the addition of the language in Section 4, State Programs, paragraph (a)
Consideration . The addition of "consideration" changes this program from direct
confrontation between the specifics of federal and state procedures for one-call
systems to a program of cooperation and mutual support, as well as provides the
flexibility to meet each state's unique needs.



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Online LibraryUnited States. Congress. House. Committee on PubliComprehensive One-Call Notification Act of 1994 : hearing before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, One Hundred Third Congress, second session, September 22, 1994 → online text (page 5 of 7)