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Booming N.D. sees rise in call-before-you-dig requests, fines: Call center received more than 200,000 requests to locate underground utilities last year

BISMARCK — A flurry of construction activity in North Dakota generated more than 1 million requests to locate underground utilities last year, and state regulators are increasingly digging in their heels when contractors violate the state’s call-before-you-dig law.

Last week, the North Dakota Public Service Commission held its first-ever formal hearing on a case involving unintentional damage to an underground utility line. The PSC only began imposing fines for such violations in 2009 and has since levied a total of $30,000 in fines in 24 cases.

State law requires anyone doing excavation or demolition to notify the North Dakota One Call program by calling 811 at least two days in advance of digging.

Those who don’t make the call and then cause damage to underground utilities such as electrical lines and natural gas pipelines can face up to a $25,000 fine, which was increased from a maximum $5,000 fine by the 2013 Legislature. Companies also may be fined if they called 811 but still caused damage.

PSC Chairman Brian Kalk said utility companies such as Bismarck-based Montana-Dakota Utilities are showing “much less tolerance” of damage to their infrastructure and becoming more aggressive about filing complaints. The PSC currently has about 20 complaints under investigation, including 10 stemming from one company that “basically went out on a digging spree,” he said.

“This is a representation of the growing concern out there of holding people accountable for third-party damage,” he said.

North Dakota’s surge in earthwork, especially in western counties installing infrastructure and housing to accommodate oil and gas development, has spurred more calls to locate utilities, Kalk said.

Calls to 811 from contractors, utilities and homeowners in North Dakota are answered at an Iowa call center that serves multiple states.

The center received nearly 212,000 calls from North Dakota last year and issued almost 1.2 million outgoing tickets to locate underground utilities in the state, according to Ryan Schmaltz, director of education and public relations for North Dakota One Call.

“Compared to about five, six years ago, our ticket numbers have doubled,” he said.

Outgoing tickets to North Dakota increased by about 31,000, or 3 percent, last year. But in the four years prior to that, they rose by more than 25 percent annually, including a 36 percent jump from 2011 to 2012, Schmaltz said.

Last year saw a slowdown in 811 calls because lawmakers changed the rules to make utility locates valid for 21 days instead of 10 days, and because rainy weather and an October snowstorm hindered construction, he said.

Kalk said damage complaints in which the excavator failed to call 811 are usually straightforward cases. Disputes are more likely to arise when underground lines have been marked but damage still occurs, he said.

“We’ve kind of seen this coming where the cases are getting a little more complex,” he said.

The formal hearing on May 1 involved a complaint filed by Montana-Dakota Utilities against Tom’s Backhoe Service Inc. of Brainerd, Minn., for damaging a 1-inch natural gas line last July in Minot.

The contractor’s president stated in a letter to the PSC that there was no negligence in locating the roughly 2-year-old gas line but that he didn’t expect such variation in its depth.

Commission advocacy staff proposed a $500 civil penalty, finding that the contractor failed to conduct the excavation “in a careful and prudent manner.”

The commission has yet to decide on the case.

In addition to PSC fines, contractors also may face civil lawsuits from utilities trying to recover the cost of repairs. Kalk said the PSC can’t force contractors to pay for damage to utilities, but it can and does require reimbursement before agreeing to a consent order, which saves the contractor from a potentially lengthy and costly administrative hearing process.

Of the 24 cases, the excavator has reimbursed the utility for the damage in every instance, Kalk said.

Regulators say hitting an underground utility can interrupt service to customers, damage the environment and cause injury or death. In the largest fine levied by the PSC among the 23 cases, Aevenia Inc. of Moorhead, Minn., agreed to pay a $5,000 fine – the maximum allowed at the time – for failing to call for locators before digging in Mountrail County on Nov. 8, 2010. The company was excavating to install electrical cable when its equipment struck an eight-inch natural gas transmission pipeline, resulting in one fatality, two injuries and a shutdown of the pipeline, according to PSC records.

Kalk, who pushed for the PSC to start imposing fines for call-before-you-dig violations after his election to the commission in November 2008, said awareness of the One-Call Program grows with each enforcement action.

“The goal is not to fine people,” he said. “It’s to protect the underground infrastructure.”