Minnesota Legislature Enacts Changes to Underground Safety Laws
Category | Briefing Papers
By Hugh D. Brown
Hugh is a shareholder of the firm’s Construction Law Department. He can be reached at 612.359.7663 or hbrown@fwhtlaw.com.
One product of the Minnesota legislature’s 2024 session was new legislation that significantly updated Minnesota’s laws concerning excavation near subsurface utilities. These updates focus on improving the safety and accuracy of these excavation activities. This Briefing Paper explains the changes and their implications for contractors and underground safety.
Background and Importance
Underground construction and excavation are critical components of infrastructure development and maintenance. However, these activities come with significant risks. Striking existing underground utilities, such as gas pipelines, electric cables, water mains, and telecommunications lines, can cause severe accidents, including explosions, electrical hazards, flooding, and widespread service disruptions. This happens with some regularity, and the problem is on the rise – the Common Ground Alliance, an organization dedicated to the safety of underground utilities and those who excavate near them, reported in their most recent Damage Information Reporting Tool (“DIRT”) that “[s]tatistical regression analysis, controlling for other influencing factors like economic activity and population density, confirms an upward damage trend over the three-year period 2020-2022.”[1]
Clear regulations and effective communication between excavators and utility operators are essential to mitigate these dangers. One vital tool in achieving this communication efficiently and effectively is the “One Call” locate system. That system involves three steps: First, the owner of a project involving excavation in the vicinity of utilities contacts the One-Call center before construction is to begin and provides the work site location and information.[2] Second, One-Call notifies member companies with utilities in the area to locate and mark utility lines. Third, the utility locates and marks routes of their buried lines. However, the system does not always work as it should. Locates are frequently requested or provided late or with insufficient specificity, excavators miss locate markings or approach them with insufficient tolerance, and utilities occasionally fail to respond to locate requests at all.[3] The updates to Minnesota Statutes, Section 216D, aim to address these and other issues by enhancing safety protocols, improve the accuracy of utility markings, and ensure timely reporting and coordination.
Summary of Changes
- Update to Utility Quality Level Guidelines
First, the legislation updates the guidelines to be used for determining the “utility quality level,” which will ensure that all utilities and excavators are using the most up-to-date guidance concerning the specificity required.
The utility quality level is a set of standards used to specify the degree of accuracy required for locating utilities for a given project.[4] As the Federal Highway Administration (“FHWA”) explains:
The use of quality levels allows project owners to decide what quality level of information they want to apply to their risk management challenge and to certify on project plans that a certain level of accuracy and comprehensiveness has been provided. There are four recognized quality levels of underground utility information ranging from Quality Level (QL) D (the lowest level) to Quality Level A (the highest level). The highest level of accuracy and comprehensiveness is generally not needed at every point along a utility’s path, only where conflicts with highway design features are most likely to occur. Hence, lesser levels of information may be appropriate at points where fewer conflicts or no conflicts are expected.
Under the previous guidelines, the utility quality level was required to be determined in accordance with old guidelines established in 2002 by the Construction Institute of the American Society of Civil Engineers (“ASCE”) in document CI/ASCE 38-02 entitled “Standard Guidelines for the Collection and Depiction of Existing Subsurface Utility Data.” The new legislation updates the source guide to “Standard Guideline for Investigating and Documenting Existing Utilities,” ASCE/UESI/CI 38-22, or “a successor document.”[5]
In other words, Minnesota law will now automatically incorporate the most recent version of the ASCE’s Standard Guidelines without the need to amend Minnesota statutes every time ASCE does. This will help keep Minnesota’s underground safety standards up to date with best practices as they evolve over time.
- Performance Reporting
Second, the new legislation adds a new reporting requirement for operators,[6] thereby improving the information available to all stakeholders and allowing for continued improvements of safety protocols. Chapter 216D now requires that each operator submit a report to the Office of Pipeline Safety on a quarterly basis, using a form or database entry designated by the Office of Pipeline Safety.[7]
The report must contain the following information:
- the total number of notifications and the number of notifications, itemized by type;
- for each notification type, the percentage of notifications marked by the start time on the notice; and
- the number of utility damages, itemized by the cause of the damages.
Operators with fewer than 5,000 notifications per year are exempt from this reporting requirement unless they are a pipeline operator separately regulated under Chapter 299F or 299J (each of which regulates operators of natural gas pipelines). To encourage candid and accurate reporting, the data collected from the reporting may not be used by the Office of Pipeline Safety to initiate an enforcement action.
The Commissioner of Public Safety must annually publish a report on the data collected under this subdivision and make the report available on the Office of Pipeline Safety website. Interestingly, the legislation does not state how detailed the report must be or whether it will identify operators by name. However, the Common Ground Alliance’s 2022 DIRT report highly recommended the collection of the information to be collected, and endorsed its usefulness, stating: “Monthly reporting and near-miss data submitted by Damage Prevention Institute (DPI) participants through DIRT will provide unprecedented insights, enable timely analysis and create shared accountability across stakeholder groups.” The new requirement should lead to better information and safer excavating.
- Excavation Plans
Third, the new legislation gives excavators[8] the power to call an onsite meeting with operators. This will be an important tool to contractors as they seek to obtain more information about subsurface utilities, and also as they work to coordinate any work affecting those utilities or adjacent to them.
Under new subdivision 1b of Minn. Stat. 216D.04, any excavator may request an “on-site meet,”[9] and, as noted below, utilities must attend. The meet request must include the entire geographic area of the proposed excavation, and the specific location of the meet. Further, although one can be called at any time at the excavator’s discretion, an onsite meeting is required for an excavation notice that involves excavation of one mile or more in length or when any combination of notices provide for adjacent geographic sections that, when combined, meet or exceed the one-mile limit.
When an affected operator receives a meet request, it must respond and either: (1) attend the on-site meet at the proposed date and time, (2) contact the excavator before the meet and (i) reschedule the meet for a mutually agreed date and time, or (ii) reach an agreement with the excavator that a meet is not required. At the meet, the operator and the excavator must agree on any subsequent planned meets or further communication. The on-site meet date and time must occur at least 48 hours after the notice, (though excluding Saturdays, Sundays, and holidays). The excavation start time must be at least 48 hours after the proposed meet date and time specified on the notice, excluding Saturdays, Sundays, and holidays.
The excavator and the operator must submit documentation of each on-site meet to the notification center, in the manner specified by the notification center. The documentation must include the following information: the date and time of the meet; the names, company affiliations, and contact information of the attendees of each meet; a diagram, sketch, or description of the precise excavation locations, dates, and times; and the agreed schedule of any future on-site meets or communications.
- Locating Underground Facilities.
Fourth, the new legislation adds new requirements for markers to show the location of underground facilities. These requirements will ensure that markings are more highly visible, and thereby contribute to safety.
While the old legislation required only that excavators follow the minimum standard used by the American Public Works Association, the new legislation adds several new requirements, as follows:
- Markers must be a combination of paint markings and at least one of (i) a flag or flags, or (ii) a stake or stakes, or (iii) a whisker or whiskers;
- All markers must follow the current color code standard used by the American Public Works Association;
- All markets must be located within a plus or minus two-foot tolerance; and
- The name of the operator must be indicated on each flag, stake or whisker.[10]
On hard surfaces, markers without flags, stakes, or whiskers may be used, but the markers must comply with the color code standard and tolerance requirement under clauses (2) and (3).
Further, an operator may just use geospatial location information, or some equivalent technology, to develop as-built drawings of newly installed or newly abandoned facilities when such facilities are exposed during excavation.[11]
Finally, excavators were previously required to use white markings for all proposed excavations.[12] Now, excavators must use white markings in normal conditions, black markings in wintery conditions, or, at their option, electronic markings. This too will contribute to visibility, and therefore, safety.
Conclusion
The amendments to Minnesota Statutes, Section 216D, aim to improve the accuracy and safety of excavation activities by clarifying definitions, enhancing reporting requirements, and establishing more detailed protocols for coordination and communication between excavators and operators. These changes are designed to minimize the risk of damage to underground facilities and ensure that all parties involved in excavation projects are better informed and prepared. Their enactment is an important development for construction safety in Minnesota.
[1] Common Ground Alliance, 2022 DIRT Report, Three-Year Trending: Statistical Analysis Confirms Upward Damage Trajectory available at https://dirt.commongroundalliance.com/2022-DIRT-Report/Three-Year-Trending-Statistical-Analysis-Confirms-Upward-Damage-Trajectory#mainContentAnchor (last accessed July 19, 2024).
[2] Making One-Call Better, Underground Infrastructure (April 2015, Vol. 70, No. 4).
[3] Common Ground Alliance reports that the top three causes of utility strikes are (1) failure of utilities to provide locate information, (2) failure to mark utilities due to locator error, and (3) excavator failure to maintain clearance. Common Ground Alliance 2022 DIRT Report, Damage Root Causes Remain Consistent, available at https://dirt.commongroundalliance.com/2022-DIRT-Report/Damage-Root-Causes-Remain-Consistent#mainContentAnchor.
[4] FHWA Programs, available at https://www.fhwa.dot.gov/programadmin/sueindex.cfm (last accessed July 19, 2024).
[5] Minn. Stat. 216D.01, subd 12.
[6] “Operator” means a person who owns or operates an underground facility. Minn. Stat. 216D.01, subd. 9.
[7] 216D.03, subd. 5.
[8] “Excavator” means a person who conducts excavation in the state. Minn. Stat. 216D.01, subd. 6.
[9] An “On-site meet” is a meeting at the excavation site, requested by the excavator. During this meeting, all affected underground facility operators gather to discuss the excavation details, locations, schedules, and any other relevant information. This helps ensure precise communication and coordination before excavation begins. Minn. Stat. 216D.01, subd. 8a.
[10] Minn. Stat. 216D.04, subd. 3.
[11] The requirements of this paragraph apply on or after January 1, 2026, or January 1, 2027 for operators that served fewer than 10,000 customers in 2025.
[12] Minn. Stat. 216D.05.
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