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.

Effective Date: January 1, 2022.

Agency Contact: Lauren Govoni, Director, Division of Utility and Railroad Safety, Public Utility Regulation, 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 amendments allow for a qualified contractor, in addition to 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, DECEMBER 1, 2021

PETITION OF

VIRGINIA NATURAL GAS, INC.

CASE NO. URS-2021-00171

For rulemaking to revise requirement

for trenchless excavation set forth in

20VAC5-309-150 of the Rules for

Enforcement of the Underground

Utility Damage Prevention Act

ORDER ADOPTING REGULATIONS

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 Act that prescribes requirements for post excavation inspection. The Petition included proposed language ("Proposed Rule") to be considered by the Commission.

The Petitioner states that the Proposed Rule would provide for greater safety, efficiency, and flexibility when conducting post-drill inspections of certain trenchless excavations.¹ 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.²

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.³

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.⁴

On May 27, 2021, the Commission entered an Order Establishing Proceeding ("Procedural Order") which, among other things, directed that notice of the Proposed Rule be given to interested persons and that such 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. The Procedural Order directed the Commission's Division of Information Resources to provide a copy thereof to the Registrar of Regulations for publication in the Virginia Register of Regulations.⁵ The Procedural Order further directed the Petitioner: (i) to serve a copy thereof upon each member of the Commission's Underground Utility Damage Prevention Advisory Committee and each entity listed in Attachment B of the Procedural Order.⁶

On August 25, 2021, Staff filed a letter in lieu of comments stating that Staff does not oppose the proposed revision. On September 3, 2021, the Petitioner filed a letter in lieu of rebuttal testimony acknowledging the Staff's comments and requesting that the Commission approve its Petition. No other comments or requests for hearing were filed in the docket.

NOW THE COMMISSION, having considered this matter, is of the opinion and finds that the Proposed Rule as submitted for Commission consideration should be approved subject to our findings discussed herein. The Rules we adopt herein contain modifications to those that were first proposed by Petitioner and published in the Virginia Register of Regulations on June 21, 2021. These modifications are for clarification and follow our consideration of the entire record in this proceeding.

The Petitioners request that, among other things, 20 VAC 5-309-150 B 4 be revised to remove the term "excavator" and replace it with the term "qualified contractor." The Commission finds that it is more appropriate to add the term "qualified contractor" while also retaining the permissibility of the excavator also performing the requisite post excavation inspections.

20 VAC 5-309-150 B 5 ("Rule 150 B 5") states "[t]he excavator shall immediately notify the utility line operator of any damage found." The Commission finds that by approving the Proposed Rule as revised herein, the language of Rule 150 B 5 should also be revised to allow for the qualified contractor who may ultimately perform the post excavation inspection to immediately notify the utility line operator of any damage found.

20 VAC 5-309-150 B 6 ("Rule 150 B 6") states "[a]fter 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 notice of excavation." The Commission finds that here also, Rule 150 B 6 should be revised to allow for the qualified contractor to make all video documentation available to the utility line operator and the division upon request.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act, 20 VAC 5-309-10 et seq., hereby are adopted as shown in Attachment A to this Order and shall become effective as of January 1, 2022.

(2) A copy of these regulations as set out in Attachment A of this Order Adopting Regulations shall be forwarded to the Registrar of Regulations for publication in the Virginia Register.

(3) This case is dismissed.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the State Corporation Commission, c/o Document Control Center, 1300 E. Main Street, First Floor, Tyler Building, Richmond, Virginia 23219. A copy shall also be sent to the Commission's Office of General Counsel and Division Utility and Railroad Safety.

_____________________________________

¹Petition at 1.

²Id. at 2.

³Id.

⁴Id.

⁵The Order Establishing Proceeding and the proposed regulation were published in the June 21, 2021 issue of the Virginia Register of Regulations.

⁶On July 1, 2021, the Petitioner filed a Certificate of Service stating that it had mailed a copy of the Procedural Order to each member of the Underground Damage Prevention Advisory Committee as well as each Virginia Local Natural Gas Distribution Company.

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 [ or ] 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 [ or qualified contractor ] shall immediately notify the utility line operator of any damage found; and

6. After the bore has been completed, the excavator [ or qualified contractor ] 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