Title of Regulation: 20VAC5-309. Rules for Enforcement of the Underground Utility Damage Prevention Act (amending 20VAC5-309-150).

Statutory Authority: §§ 12.1-13 and 56-265.30 of the Code of Virginia.

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: August 6, 2021.

Agency Contact: Lauren Govoni, Director, Division of Utility and Railroad Safety, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9590, FAX (804) 371-9734, or email lauren.govoni@scc.virginia.gov.

Summary:

The proposed amendment allows for a person other than the excavator to complete the post excavation video inspection for trenchless excavation across gravity fed sewer mains and combination storm and sanitary sewer system utility lines.

AT RICHMOND, MAY 27, 2021

PETITION OF

VIRGINIA NATURAL GAS, INC.,

CASE NO. URS-2021-00171

For rulemaking to revise requirements

for trenchless excavation set forth in

20 VAC 5-309-150 B 4 of the Rules for

Enforcement of the Underground Utility

Damage Prevention Act

ORDER ESTABLISHING PROCEEDING

On May 6, 2021, Virginia Natural Gas, Inc. ("Petitioner"), filed a Petition for Rulemaking ("Petition") requesting that the State Corporation Commission ("Commission") initiate a rulemaking for the limited purpose of revising 20 VAC 5-309-150 B 4 ("Rule 150 B 4") of the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act¹ that prescribes requirements for post excavation inspection. The proposed revisions ("Proposed Rule") are attached hereto as Attachment A.²

The Petitioner states that the Proposed Rule would provide for greater safety, efficiency, and flexibility when conducting post-drill inspections of certain trenchless excavations.³ The Petitioner states 20 VAC 5-309-150 establishes the requirements for trenchless excavation. Subsection B, in particular, provides that "any person conducting trenchless excavation crossing any gravity fed sewer main or combination storm-sanitary sewer system utility lines need not expose such utility lines by hand digging" if certain steps are taken, including obtaining appropriate documentation from the utility line operator, appropriately locating the utility line and ensuring proper clearance, and conducting a post-excavation inspection to ensure no cross bore or other damage has occurred.⁴

The Petitioner seeks the amendment of the rule regarding the post-excavation inspection set forth in subsection B 4. Rule 150 B 4 currently requires the same excavator who performed the pre-excavation inspection and trenchless excavation work to also perform the post-excavation inspection using the same type of video equipment.⁵

With its Petition, the Petitioner proposes the revision of Rule 150 B 4 to allow a qualified contractor other than the one who performed the trenchless excavation to conduct the post-excavation inspection of that work. The Proposed Rule would still require a post-excavation video inspection of the sewer lines but provides an alternative to the current requirement that the excavator inspect his or her own excavation work.⁶

The Petitioner asserts that the Proposed Rule is in the public interest, as it would enhance the safety, effectiveness, and efficiency of the post-excavation inspection process. The Petitioner states that in its own experience, opening the post-excavation inspection process to qualified contractors who were not involved in pre-inspection and excavation work would allow certain contractors to develop specialized skills in this area, and would facilitate scheduling efficiencies that would benefit the system.⁷

The Petitioner further asserts that introducing a neutral third party that specializes in post-drill inspection would also provide increased accountability on trenchless excavation projects and stands to potentially reduce damage events.⁸

The Petitioner further proposes to remove the requirement that the post excavation inspector use "the same type of video equipment" utilized by the trenchless excavator during the pre-excavation inspection. In support, the Petitioner states that qualified contractors may use varying types of closed-circuit video equipment, provided it is suitable to adequately conduct the inspection.⁹

NOW THE COMMISSION, upon consideration of the matter, is of the opinion and finds that a proceeding should be established to consider adopting the proposed revision to Rule 150 B 4. Attachment A to this Order contains the Proposed Rule. We will direct that notice of the Proposed Rule be given to interested persons and that interested persons and the Commission Staff ("Staff") be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rule. We will further direct that the Petitioner serve a copy of this Order upon each member of the Commission's Underground Utility Damage Prevention Advisory Committee ("Advisory Committee") and each entity listed in Attachment B.

Accordingly, IT IS ORDERED THAT:

(1) This case is docketed and assigned Case No. URS-2021-00171.

(2) The Commission's Division of Information Resources shall forward a copy of this Order Establishing Proceeding to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(3) On or before June 11, 2021, the Commission's Division of Information Resources shall cause the following notice to be published in newspapers of general circulation throughout the Commonwealth of Virginia:

NOTICE TO THE PUBLIC OF A PETITION FOR RULEMAKING TO REVISE REQUIREMENTS FOR TRENCHLESS EXCAVATION SET FORTH IN RULE 20 VAC 5-309-150 B 4 OF THE STATE CORPORATION COMMISSION'S RULES FOR ENFORCEMENT OF THE UNDERGROUND UTILITY DAMAGE PREVENTION ACT CASE NO. URS-2021-00171

On May 6, 2021, Virginia Natural Gas, Inc. ("Petitioner"), filed a Petition for Rulemaking ("Petition") requesting that the State Corporation Commission ("Commission") initiate a rulemaking for the limited purpose of revising 20 VAC 5-309-150B 4 ("Rule 150 B 4") of the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act that prescribes requirements for post excavation inspection. The proposed revisions ("Proposed Rule") are attached as Attachment A to the Commission's Order Establishing Proceedings.

The Petitioner states that the Proposed Rule would provide for greater safety, efficiency, and flexibility when conducting post-drill inspections of certain trenchless excavations. The Petitioner states 20 VAC 5-309-150 establishes the requirements for trenchless excavation. Subsection B, in particular, provides that "any person conducting trenchless excavation crossing any gravity fed sewer main or combination storm-sanitary sewer system utility lines need not expose such utility lines by hand digging" if certain steps are taken, including obtaining appropriate documentation from the utility line operator, appropriately locating the utility line and ensuring proper clearance, and conducting a post-excavation inspection to ensure no cross bore or other damage has occurred.

The Petitioner seeks the amendment of the rule regarding the post-excavation inspection set forth in subsection B 4. Rule 150 B 4 currently requires the same excavator who performed the pre-excavation inspection and trenchless excavation work to also perform the post-excavation inspection using the same type of video equipment.

With its Petition, the Petitioner proposes the revision of Rule 150 B 4 to allow a qualified contractor other than the one who performed the trenchless excavation to conduct the post-excavation inspection of that work. The Proposed Rule would still require a post-excavation video inspection of the sewer lines but provides an alternative to the current requirement that the excavator inspect his or her own excavation work.

The Petitioner asserts that the Proposed Rule is in the public interest, as it would enhance the safety, effectiveness, and efficiency of the post-excavation inspection process. The Petitioner states that in its own experience, opening the post-excavation inspection process to qualified contractors who were not involved in pre-inspection and excavation work would allow certain contractors to develop specialized skills in this area, and would facilitate scheduling efficiencies that would benefit the system.

The Petitioner further asserts that introducing a neutral third party that specializes in post drill inspection would also provide increased accountability on trenchless excavation projects and stands to potentially reduce damage events.

The Petitioner further proposes to remove the requirement that the post excavation inspector use "the same type of video equipment" utilized by the trenchless excavator during the pre-excavation inspection. In support, the Petitioner states that qualified contractors may use varying types of closed-circuit video equipment, provided it is suitable to adequately conduct the inspection.

An electronic copy of the Petitioner's Petition may be obtained by submitting a written request to counsel for the Petitioner, Jonathan B. Heath, Southern Company Gas, 544 South Independence Boulevard, Virginia Beach, Virginia, 23454, JBHeath@southernco.com. If acceptable to the requesting party, the Petitioner may provide the documents by electronic means. Interested persons also may download unofficial copies from the Commission's website: scc.virginia.gov/pages/Case-Information.

On or before August 6, 2021, any interested person may file written comments on the Petition with the Clerk of the Commission, State Corporation Commission c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. In the alternative, comments may be submitted with the Clerk of the Commission electronically by following the instructions found on the Commission's website: http://www.scc.virginia.gov/case. Compact discs or any other form of electronic storage medium may not be filed with the comments. All comments shall refer to Case No. URS-2021-00171.

On or before August 13, 2021, any interested person may request that the Commission convene a hearing on the Proposed Rule. If not filed electronically, an original and fifteen (15) copies of such request for hearing shall be filed with the Clerk of the Commission at the address set forth above. Requests for hearing shall refer to Case No. URS-2021-00171 and shall include: (i) a precise statement of the filing party's interest in the proceeding; (ii) a statement of the specific action sought to the extent then known; (iii) a statement of the legal basis for such action; and (iv) a precise statement why a hearing should be conducted in this matter, and why this matter cannot be decided on the pleadings.

A copy of any written comments and requests for hearing simultaneously shall be sent to counsel to the Petitioner at the address set forth above.

STATE CORPORATION COMMISSION

(4) On or before June 18, 2021, the Petitioner shall serve, electronically, a copy of this Order upon each member of the Advisory Committee and each entity listed in Attachment B to this Order.

(5) On or before July 2, 2021, the Petitioner shall file with the Clerk of the State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118, proof of the service required by Ordering Paragraph (4).

(6) On or before August 6, 2021, any interested person may file comments on the Application by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. All comments shall provide suggested changes, if any, to the Proposed Rule. Comments shall refer to Case No. URS-2021-00171.

(7) On or before August 13, 2021, interested persons may request that the Commission convene a hearing on the Proposed Rule. Such request for hearing shall be filed with the Clerk of the Commission. If not filed electronically, the original and fifteen (15) copies of the request for hearing shall be submitted to the Clerk of the Commission at the address set forth in Ordering Paragraph (5). Requests for hearing shall refer to Case No. URS-2021-00171 and shall include: (i) a precise statement of the filing party's interest in the proceeding; (ii) a statement of the specific action sought to the extent then known; (iii) a statement of the legal basis for such action; and (iv) a precise statement why a hearing should be conducted in this matter, and why this matter cannot be decided on the pleadings.

(9) A copy of any written comments and request for hearing simultaneously shall be sent to counsel for the Petitioner, Jonathan B. Heath, Southern Company Gas, 544 South Independence Boulevard, Virginia Beach, Virginia 23454, JBHeath@southernco.com.

(10) On or before August 30, 2021, the Staff may file any comments on, proposed modifications or supplements to, or requests for hearing on the Proposed Rule.

(11) On or before September 3, 2021, the Petitioner may file with the Clerk of the Commission any response in rebuttal to Staff comments, requests for hearing, and any comments filed by interested persons in this proceeding.

(12) This matter is continued generally pending further order of the Commission.

A COPY hereof shall be sent electronically by the Clerk of the Commission to: Jonathan B. Heath, Southern Company Gas, 544 South Independence Boulevard, Virginia Beach, Virginia 23454, jbheath@southernco.com; Nicole M. Allaband, Esquire and Timothy D. Patterson, Esquire, McGuireWoods LLP, Gateway Plaza, 800 East Canal Street, Richmond, Virginia 23219, nallaband@mcguirewoods.com, tpatterson@mcguirewoods.com; and C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424, Mbrowder@oag.state.va.us; and a copy shall be delivered to the Commission's Office of General Counsel, Division of Utility and Railroad Safety, and the Division of Information Resource.

20VAC5-309-150. Requirement for trenchless excavation.

A. Any person conducting trenchless excavation shall take all reasonable steps necessary to protect and support underground utility lines. Except as provided in subsection B of this section, these steps shall include, but are not limited to the following:

1. The excavator should verify that all utility lines in the area are marked;

2. The excavator shall ensure that bore equipment stakes are installed at a safe distance from marked utility lines;

3. When grounding rods are used, the excavator shall ensure that they are installed at a safe distance (at least 24 inches plus the width of the utility line, if known) away from the marked or staked location of utility lines;

4. The excavator shall ensure sufficient clearance is maintained between the bore path and any underground utility lines during pullback;

5. The excavator shall give special consideration to water and sewer systems within the area that cannot be located accurately;

6. Unless prohibited by other laws, ordinances, regulations, or rules of governmental and regulatory authorities having jurisdiction, the excavator shall expose all utility lines that will be in the bore path by hand digging to establish the underground utility line's location prior to commencing bore. For a parallel type bore, unless prohibited by other laws, ordinances, regulations, or rules of governmental and regulatory authorities having jurisdiction, the excavator shall expose the utility line by hand digging at reasonable distances along the bore path;

7. The excavator shall ensure the drill head locating device is functioning properly and within its specification;

8. The excavator shall visually check the drill head as it passes through potholes, entrances, and exit pits; and

9. If the depth indicated by the locating device is lower than the bottom of the pothole or pit, the excavator shall cease boring until the hole or pit can be hand excavated further to maintain a visual inspection of the drill head.

B. Notwithstanding the requirements of subdivision A 6 of this section, any person conducting trenchless excavation crossing any gravity fed sewer main or combination storm/sanitary sewer system utility lines need not expose such utility lines by hand digging if, in addition to meeting the other applicable requirements set forth in subsection A of this section, the following steps are taken:

1. Prior to commencing a trenchless excavation project, the excavator shall receive documentation from the utility line operator (such as, but not limited to, documentation through the permitting process) documenting that the operator has been notified of the proposed trenchless excavation and that trenchless excavation will be used to cross its underground utility line. The scope of a trenchless excavation project shall not exceed the scope of a single notice of excavation;

2. Prior to commencing the boring process, the excavator shall determine (i) the depth of the utility line through appropriate locating technology and (ii) the diameter and condition of the utility line using a sewer system camera with video recording capability;

3. The excavator shall ensure that a clearance of at least three feet is maintained between the bore path and the utility line;

4. Using the same type of video equipment identified in subdivision B 2 of this section, after After the trenchless excavation project has been completed, the excavator a qualified contractor shall use a closed circuit sewer system video camera to determine the condition of the utility line and ensure that no cross bore or other damage has occurred;

5. The excavator shall immediately notify the utility line operator of any damage found; and

6. After the bore has been completed, the excavator shall make all video documentation available to the utility line operator and the division upon request. Such video documentation shall be maintained and made available for 12 months from the time of the notice of excavation.

C. The provisions of subsection B of this section shall apply only to gravity fed sewer mains or combination storm/sanitary systems that are considered "utility lines" as that term is defined in § 56-265.15 of the Act.

DOCUMENTS INCORPORATED BY REFERENCE (20VAC5-309)

Virginia Underground Utility Marking Standards, March 2004, Virginia State Corporation Commission, Division of Utility and Railroad Safety.

Virginia Underground Utility Marking Standards, February 2020, Virginia State Corporation Commission, Division of Utility and Railroad Safety