Changes are coming to the landscape of Call-Before-You-Dig Enforcement in Ohio. Do you know how these changes will affect your utility and are you ready to handle a complaint before the Underground Technical Committee?
On January 1, 2016 any stakeholder, including utilities and excavators, can file a complaint with the new 17 member Underground Technical Committee (UTC), for a perceived failure to abide by a duty imposed in the one-call statutes found at O.R.C. 153.64 and O.R.C. 3781.27, 3781.28 to 3781.32.1 The duty of a utility to accurately mark its underground lines within 48 hours of notification, whether on a private or public project is found in these sections. Additionally, the duties of an excavator to call before the dig, and to take precautions to avoid striking properly marked underground lines, is similarly found in these sections.
Utilities can expect to see complaints filed by excavators, where the excavator determines that the utility's locator failed to properly mark the underground lines. The majority of Courts in Ohio follow the economic loss rule, which effectively bars an excavator from seeking "downtime" damages, due to a utility's failure to accurately mark its underground lines. However, this protection will not exist for a complaint before the UTC. The excavator need only be "directly involved or impacted" by the failure to file a complaint.2 The excavator does not need to establish that they have actual damages to ask the UTC to impose a fine against the utility.
Notably, this new enforcement procedure has no effect on the ability of the utility, or the excavator, to file a civil suit to recover its appropriate damages in Court.3 A complaint with the UTC must be filed not later than 90 days after discovering the alleged compliance failure. In most circumstances, this will be within 90 days of the incident. Thought should be given to delaying an invoice for damage until after the
For those utilities that have a strong program in place to document the cause of any underground damage, determining the potential exposure will be simple. For those that have not yet implemented such a program, it will become imperative that your locator is charged with taking accurate pre-damage photos or video, and thoroughly investigating the cause of the damage. While the first responder from the utility should always have the first priority to make the area safe, it should be impressed upon the employees in the field that investigating and accurately documenting the cause of the damage is another priority. No longer does the failure to document the damage while in the field simply hamper the ability to collect in Court, it could cost the utility up to $10,000 in fines per incident.4
As the result of a complaint filed with the UTC, its staff will ask for documentation regarding the incident. Proof, similar to what is used in a court case should be provided, including photos, video and statements by the locator and field employees as to their impression of the cause. For this reason, it is important to again remind the employee responsible for providing the report of the incident, that accurate information, based on fact is critical. A wrong assumption as to whether the line was accurately marked, without support such as photos and measurements will hurt your utility's credibility. A mistaken impression of the status of the law set out in the report could be equally damaging. While an attorney is not required to draft the response or appear at a hearing before the UTC, the attorney you regularly use to recover damages in these cases will be familiar with your utility's strengths and weaknesses in this area, and will know how to frame the issues before the UTC to achieve a favorable result.
Your utility will see a surge in complaints before the UTC in 2016. If you want to ensure that your utility has accurately prepared, or for help with a complaint before the UTC, please contact Amanda Yurechko.
1 See ORC 4913.05(A)
2 See ORC 4913.01(A).
3 ORC 4905.041(C)
4 ORC 4913.171
