Page 10 - Tennessee 811 Magazine 2022 Issue 3

What Are the Rules When There Are No Rules?
By Craig Ingram
Public Awareness Manager Tennessee811
When you are marking
a ticket and the white paint does not match
the described scope of work, you want to know what you are accountable for locating. When you
are running into rock and realize that your only realistic bore path will take you near a 16” water main, you want to know what steps you should follow to demonstrate that you took precautions to avoid damage. In either situation, if you turned to the dig law for an answer, you might be disappointed. The dig law states that white markings are required, with some exceptions (TCA 65-31-106 (b)), and that excavators are required to use reasonable care when working in the tolerance zone (TCA 65-31-108 (c)), but it does not specifically state what
to do when white lining is different from the marking instructions or what techniques count as reasonable care. Since the law is gray on those topics, what do you do?
If your company has a written policy
on either matter, you are in luck – you have a standard procedure that you
can point to as justification for your next steps. If not, you may start looking through our Damage Prevention
Guide (found in our mobile app, more info on page 7), the Common Ground Alliance’s Best Practices Guide, or you may call up your trusty Tennessee 811 Liaison (see page 17 for our current region breakdown). Regardless of which approach you take, the guidance you walk away with will be generalized and
should not be viewed as legal advice. That means you are still ultimately left in the position of having to make a judgement call and hope for the best.
Here is the good news: when the Underground Utility Damage Enforcement Board was created
in 2015, they were empowered to establish rules to provide additional detail and clarity on how they handle the matters they have authority
over. In 2021, the enforcement board completed a rulemaking procedure with administrative support from the Tennessee Public Utility Commission and published the result. These
rules, as an extension of the law, are enforceable by the board under the same authority granted by the dig law.
So, back to white lining, what are locators responsible for marking when the paint on the site does not match the scope of work? Rule 1230-01-02-.01 (2) says that the ticket sets the parameters for the area to be marked and advises that the excavator be contacted to sort out any discrepancies. You may think that is straightforward, and you would be right, but it is groundbreaking in that it is the first time that a fixed answer has been provided for this scenario in the state of Tennessee.
How about the bore path that puts
an excavator in close quarters with a water main? Rule 1230-01-03-.03 (3) says that the path of excavation should be visually inspected, utility locations should be verified against utility records, surface markings should be
checked for accuracy, potholing should be used to spot the line and ascertain depth, and drilling should occur at a slow enough pace that the bore head can be tracked to account for it getting deflected. Compared to, “use reasonable care,” that is some very clear and actionable guidance.
Sometimes shades of gray can work in your favor because they leave you room for discretion, but vague language that does not clearly establish expectations can leave you unsure of how to proceed. Before we pursue changes to the legislation, we make a point of working with industry stakeholders to make
sure that no one is unintentionally handicapped by a change that is meant to provide helpful guidance for someone else.
Let’s point out some other areas
of concern. Did you know that our state’s dig law does not define or even acknowledge the existence of cross bores? It did not mention hand digging or the use of hand tools until 2021. It contains no mention of private service lines. If you are looking for direction on those topics, you would not be the only one, and thankfully the enforcement board’s rules offer additional insight. Make sure you add the rules to your toolbox of resources today.
View the rules in full at https:// www.tn.gov/tpuc/divisions/uudp- underground-utility-damage-prevention. html. Just click “1230-01-01 Final Rules (pdf)” there on the left side of the page.
8 • Tennessee811 2022, Issue 3