This is the latest story in The News & Observer’s “Are We Safe?” project investigating readers’ concerns and how well government is protecting us. If you have a question for “Are We Safe?” go to bit.ly/AreWeSafeProject to fill out a simple form.
The state board tasked with enforcing North Carolina’s underground digging laws has heard few cases — and issued even fewer fines — despite hundreds of thousands of violations, since 2014.
Most of those violations are never reported to the N.C. Underground Damage Prevention Review Board, which has heard fewer than 250 cases since it was created in 2014.
If the volunteer board does find someone responsible for breaking the law, the punishment is nearly always the required viewing of an online video for “education and training.” The board has never issued its maximum fine of $2,500.
Board members say they don’t have enough money or staff support to hear more cases and that they can’t issue fines or punishment if people don’t report potential violations.
A bill, HB 872, could help change that, said sponsor Rep. Dean Arp, who wants to see the state put a higher priority on keeping people safe.
“What does it take to ensure that objective?” the Union County Republican asked. “The recent tragedies highlight how important it is for us to be vigilant.”
The News & Observer reviewed North Carolina 811 data, academic papers and interviews with experts about damages to underground utility lines in the aftermath of the April 10 downtown Durham gas explosion that killed two people and injured nearly two dozen more. The properties damaged in the explosion have a total assessed tax value of more than $100 million, according to county land records.
How 811 works
Before a company, contractor or a homeowner can begin digging, a call must be made to North Carolina 811 to give utility companies time to mark the presence of any fiber, natural gas, water or power lines underground.
NC 811 has existed in some form since 1978 but calling the center used to be optional. Utilities were not required to participate until 2013, and it wasn’t until 2016 that all utility companies that operated in the state had to join 811 as members.
The Pipeline Safety Trust, a national organization, says excavation-related incidents have decreased since states began requiring people to call ahead.
“Both the use of the system and the enforcement of that system has really brought excavation damage down significantly,” said Rebecca Craven, the trust’s program director. “They have plateaued a little bit in the last five or six years, but there was a pretty good decline” across the country starting in 2005.
The federal government grades states’ enforcement of their call systems as either adequate or inadequate. North Carolina is adequate, while 15 states are listed as inadequate including Florida, California and Kentucky.
After 811 is contacted, utility companies are notified and must respond and mark any underground lines within three days. Utilities typically report they don’t have lines in the digging area or that lines have been marked. Locators use paint and flags to mark the lines.
If the utility company doesn’t respond within the three-day window, state law does allow an excavator to begin work if there are “no visible indications” that there are underground lines. But that changes if the excavator believes there are or sees evidence of underground pipes like a utility pole or water meter. Then the excavators must put in a “three-hour ticket” to 811. That gives the utility companies three more hours to get the lines marked.
If they still haven’t been marked in that time frame, work may begin.
According to 811 data, there were nearly 2 million calls to 811 from excavators and homeowners in 2017.
Each call generated about 5.5 responses or transmissions through the 811 system. There were nearly 8.1 million responses or transmissions throughout North Carolina in 2017, according to 811 data.
Nearly 10% — 806,583 — of those transmissions were when a utility company didn’t respond to the 811 request and excavators were left in the dark about possible lines.
The 811 data shows that In many of those cases, excavators take a gamble and dig anyway. And most of the time without incident.
There were 11,160 reports of damage during in 2017, which can range from scratching a pipe to cutting a pipe and disrupting service. In rare instances a damaged pipe can cause serious injuries and property damage. In Durham, investigators are still trying to determine what caused the spark that ignited the deadly natural gas explosion.
But even when utility companies do respond to an excavator’s 811 request, the lines marked after the call may not always be accurate.
Michael Burg is a Colorado-based trial attorney who has litigated several cases after a natural gas explosions and has won millions for people he represents.
“They go out and pay somebody minimum wage to put the markers down where the gas lines are,” he said. “First of all, they are consistently inaccurate. And when I say inaccurate they could be a foot off, they could be a yard off. You really have to know what you’re doing.”
PSNC has employees who locate and mark the lines, but the energy company contracted out the locating work at the site of the Durham explosion, a PSNC spokesperson has said.
A report to federal regulations from Dominion (PSNC) Energy says the gas company doesn’t know if the lines were properly marked for a contractor laying underground fiber cables before the Durham explosion. PS Splicing reported the gas line damage through the 811 system, as required by the state.
Nearly 88% of 811 users said the marks were located accurately, according to a study in an academic paper being published in the Practice Periodical on Structural Design and Construction.
But the lines may not be as accurate as the survey responders believe. The survey also found nearly 63% of participants used an inferior method to determine if the lines were accurate, according to the paper.
The paper was written by Ahmed Al-Bayati, an assistant professor in the Kimmel School of Construction Management at Western Carolina University; Ali Karakhan, a Ph. D. candidate at Oregon State University; and Louis Panzer, the 811 executive director.
The survey was submitted and approved by the Human Subject Institutional Review Board at Western Carolina University, and it was funded by 811, Al-Bayati said. The nonprofit is excited about the findings because “they show a lot of need for improvement,” he said. “That is what (811 is) trying to do. They are trying to improve.”
811 is a nonprofit and can’t force utility companies to hire more locators. Or force them to better train their employees and contractors so utility lines are marked accurately.
“From a legal standpoint there is no enforcement, unfortunately,” Al-Bayati said. “There is no strong enforcement or citation when they provide inaccurate locators.”
“I don’t think it is effective because 811 can do nothing,” he said.
That enforcement is up to 15 volunteers appointed by the governor to the Underground Damage Prevention Review Board and the complaints it receives.
Why are there so few fines?
The review board doesn’t automatically investigate if a underground pipe is damaged. Instead, it waits for a complaint to be filed.
And that process isn’t easy.
Residents have to find a form on 811’s website, nc811.org/report-a-violation.html. Once they’ve filled out the multi-page document, they have to print it and mail it to 811. The form can’t be submitted online.
People are encouraged to submit photos and use the N.C. Secretary of State’s website to properly identify which contractors are working, though that can be difficult as companies often have subcontractors doing the actual digging. Board members said they’ve dismissed potential violations because information submitted was incomplete or had the wrong company listed.
“If the person who submitted the violation doesn’t get the proper party it’s a stopping point,” said Megan Riley, the newly appointed board chair. “Without doing any sort of research, we are relying on the citizens to submit the proper parties. Some ability to research and dig into these and looking for trends or companies that seem to have more violations than others ... would give us more indication of where we should be spending our time.”
Riley, who is a manager of distribution construction at Piedmont Natural Gas for Duke Energy, said the board has historically focused on education and training to prevent future incidents and only fined repeat or egregious offenders. She was unable to say how many fines had been issued in the board’s history.
The N&O could only find three instances of fines — each $1,000 — and Al-Bayati’s academic paper only found four. Riley agreed it was under 10.
The new law
The bill to bulk up the volunteer board was filed in April and took a small step forward in the General Assembly last week, but it remains in committee.
Arp, a construction engineer, said he sponsored the bill because he understood the dangers construction workers face. One of the two people killed in the Durham explosion was a “first responder locator” for Dominion (PSNC) Energy.
He said his goal isn’t to increase or decrease the number of reported violations or cases reviewed, but to protect the people working.
Among other changes, the bill would establish an annual fee that utility companies would pay to generate up to $200,000 for the review board, which currently has no budget. The board could use that money to help hire administrative staff and likely create a website where violations could be submitted online. It would also allow the board to hire contractors to help do its work and to tap the Attorney’s Office for legal help.
These are all things the board has been lacking since it was created in 2014.
“811 has stepped up and has been helping to make sure these first four years (are) successful,” Riley said. “If we want a sustainable model and if we want more, we are going to have to have an administrative staff that will help.”
Investigators expect to have more information on the deadly Durham gas explosion in the coming months.
As part of the year-long “Are We Safe?” series, The News & Observer will hold a free, community forum on summer safety from 7 to 8:30 p.m. Wednesday, June 26, at the North Carolina Museum of Natural Sciences, 11 W. .Jones St. in Raleigh. The panel will talk about ticks, snakes, rip currents, fireworks and fire safety, and sharks.. The panelists’ presentation will be followed by questions and answers from the audience.