5.3. ERMUSR 02-08-2005~/
Elk River
Municipal Utilities
13069 Orono Parkway
Elk Rner, MN 55330
JanuaT-~ 24, 2005
The I-Ionorable Richard C. Luis
Office of Administrative Hearings
l0O Washington Square, Suite 1700
i'vlinneapolis, ?~~N 55401-2138
Subject: State Rule Chapter 760
Locating Se~~~er & N~'ater Lateral in Public Right of N'v'ay
Gentlemen;
phone, 763.441.200
Fax. 763 941 8099
Effective .Ianuary 1, 2006, a new state rule will take effect requiring "an operator of a
sewer or ~~~ater facility at a minimum shall locate [hat portion of a service lateral within a
public right-of-way installed after that date." This rule also includes utility easements of
government units in the definition of public right-of-way. This rule is precipitated by the
increased use of horizontal directional drilling technology. "phis technology is used
extensively in Elk River for a number of years. We desire to speak against this rule for
the following reasons.
Sewer and water laterals or service lines from the main in the street to the home
or business in many communities including Elk River; are the homeowners or
business owners property. Is it proper to place the locating burden of private
property on Cities? Locations of these laterals are not always documented.
2. Adding tracer wire ~~-hen these laterals are installed is a proposed solution. In
corrosive soi]s, history has shown the tracer wire corrodes over time and becomes
ineffective. Generally water and sewer laterals arc 6 feet to ] 0 feet deep, to
prevent freezing. Current locating technologies do not provide accurate locates at
these depths.
3. Horizontal Directional Boring Tectu~ology is used extensively to install "small
utilities" (telephone, cable television; gas and electric). These small utilities range
in depth from 6" for cable television to 42" for electric. Utility companies like
Elk River Municipal Utilities do not ~~~ant cable deeper than the required depth
due to maintenance issues. If horizontal directional boring is used to install these
small utilities, there is no legitimate need to be deeper than 42" and if they are,
they are probably not in construction compliance.
4. Current rules require the contractor to pot hole or hand dig utilities and verify
location, or if the}~ suspect a utility is present; marked or miss-marked, stop and
verify location by pot holing before proceeding. Iy~lany contractors do not want
to take the time to do this. Recently developed automated high pressure water
system and vacuums make pot holing easier; quicker and safer. Do not abandon
the current rule of requiring contractors to expose existing utilities ti~hen the~~
cross these utilities.
~ y~lany utilities, including the Elk River 1v~~Iunicipal Utilities, are not alwa}'s sure
where the physical limit of easement are in the field are without doing an
expensive and time conswning surve}~. Including easement in the right-of-way
definition is not reasonable.
6 Man}' municipals and utilities including the City of Elk River and Elk River
Municipal Utilities are just beginning to utilize Global Positioning System
~hechnologies (GPS), to locate and document at surface or below surface items.
The GPS system established a X and Y coordinate based off a county or
latitude/longitude coordinate system. This information is then stored in a
Geographic Information System (GIS). These technologies may ultimately be a
better physical solution than tracer ~~-ire and current locating technology.
Unfortunately this technology is in its infancy in many communities and non-
existent in other communities. It is expensive to imitate and more expensive to
maintain. This is not a fool proof system because it is information and computer
based and not actual physical based like actual locating.
Also marry communities, but not all, keep as built drawings of water and se~~er
main and lateral installations. These dra~~ings can possibly be made available to
the contractors. Unfortunately this is not fool proof because dimensions and
transposing numbers, errors ~~~ill occur.
7. This rule appears to be in response to the horizontal directional boring industries
desire to shift liability to local units of government. This is not making anybody
safer, just shifting liability. We would also encourage a cost benefit analysis be
completed to determine if the added cost (regardless of who pays), results in an
acceptable benefit. This proposed rule will require, on an average, each city to
add a person with equip~r~ent, vehicle and on going training.
~?~'e ~~~ould suggest these rules be dcla~~ed to such time as GPS and GIS technologies
become more common place, also a resolution as to the proper source of funding for
these technologies must be found.
This is a tough issue to resol~~e, but ~~e need to solve the issue, notjust shift liabilities.
~'~'e look forward to ~~~orking ~~~ith you in Iinding an acceptable solution.
Best egards,
~~
I3 'an .Adams. P.h.
General Manager
~~'.'~~
l~?inrres~ta l~'uerici{~a/ fltifiti~s ~Gssoeiatiorr
Rulemaking call to action
To: 1v1?~~1UA Regular Members
From: Steve Downer
Re: Excavation Notification System Rule
Date: January 14, 200
We wanted to let you know that unless stopped, a new slate 1-ule will shift the costs and
liability for certain underground utility `hits' from excavators to cities and their
taxpayers. This rule will, over tune, increase city/municipal utility liability in an
unprecedented expansion of city responsibility for private property located in the public
right-of way.
Background
The proposed rule is apparently aimed at addressing safety concerns arising out of the
proliferation of the use of trenchless technology, especially Horizontal Directional
Drilling (HDD), also known as directional boring. HDD has been used in cases where
natural gas lines were installed through se~~ er laterals, leading to gas leaks and
explosions. While supporting some of the proposed rule, two pal-ts are of particular
concel~~ to cities and municipal utilities: inclusion of utility easements of Qovernment
units in the definition of "public right of way;" and the requirement to locate certain
water and sewer laterals within the public right-of-way.
The 1-ule requires that, after Dec. 31, 2005, an operator (defined to include municipalities
which operate water and sewer systems) "shall instal] a locating wire or have an equally
effective means of marking the location of each nonconductive underground facility
~~-ithin a public right-of-way." Part 7560.0375 C of the rule requires that: "After Dec, 31,
2005, an operator of a sewage or water facilit~~, at a minimum, shall locate drat portion
of the service lateral within a public right-of--way installed after that date. "
,Letter writing, hearing details
The public hearing on the rule, Chapter 7560, will be held in the Louis North Central
room, MnDOT Building, 372 12`~ St. N., St. Cloud, starting at 10 a.m. Tuesday, Feb. 1.
All interested or affected persons should submit written comments or attend the hearing.
All interested persons are given the opportunity to speak. If you would like to testify, let
us know beforehand. The League of Minnesota Cities and MMUA are preparing written
responses and testimony. Flowevcr, we believe there should be widespread concern over
this proposal If you are concerned, we urge you to write and/or attend the hearing. If
you submit written comments prior to the hearing they should be addressed to: The
Honorable Richard C. Luis, Office of Administrative I-Iearings, 100 ~~'ashington Square,
Suite 1700, Mpls., MN 55401-2138. You should also submit a copy to Mike McGrath at
the Office of Pipeline Safety, 444 Cedar Street, Suite ] 47, St. Paul, MN X5101-5147. We
also ask that you copy MMUA.
When writing ,fudge Luis, please address as many of the following points as you wish.
3025 Harbor Lane North • Suite 400 • Plymouth, MN 55447-5192 • ?63.551.1230 • 800.422.0119 (MN) • Fax 763.551.0459 • v/v~w.mmua.org
• The Minnesota Office of Pipeline Safety ('vInOPS) should address the cause of the
problem-the fact that excavators are not following rules alread}~ in force-not simply
shift the costs and liability fro~rl excavators to cities and their taxpayers. As cun-ently
proposed, the rule changes ~~~ould do little to improve public safety, but would increase
the cities' liability for underground utility `hits.'
• It is unreasonable to simply drop the problem in the laps of local governments and not
require contractors that use directional boring to be part of the solution.
• Enforcement of existing rules regarding the safe exposure of privately-owned water
and se~~ er laterals would go a long ~~ ay to prevent the type of serious damage and threats
to public safety that h~1nOPS cites as the rationale for this rulemaking.
• No other state currently requires ~~hat is proposed in the 1`~1nOPS rules with respect to
locating of private facilities.
• Neither the technology nor resources are available to support such an obligation. It is
unreasonable to impose onerous new requirements upon cities and municipal utilities
without taking into account the regulatory burdens and costs that would be. imposed upon
public entities.
• L:vIC and MMUA remain committed to working with MnOPS, the ~~i Building Code
and Standards Division, and other state agencies to develop a workable system for
slaking privately owned water and sewer service laterals readily locatable.
• In addition, the proposed draft rule that ~~~ould include easements in the definition of
Right-of-~'av (7560.0100 Subp. 10). This may create legal issues due to the lack of
readily available records on the exact location of such easements.
Other information
For service laterals installed prior to 2006, there is little change from current practice,
with cities required to either locate or provide information on their location. An operator
of a natural gas or electric facility shall locate a service lateral up to the meter or the
connection to a customer's underground facility. MMUA has not opposed this provision,
but you need to be aware of it.
Copy of the rules may be vie~a~ed at the Off ce of Pipeline Safety website,
~~~w~~~.dps.state.mn.usipipcline/publicnotice.html
IF you have any concern over this proposal, speak up now! If you have any questions,
call me at 1-800-422-01 19.
Minne;tita ....i\..~....,..
RURAL- _ AVER
As;~ci,rti~n
The
~~C~1111'CA'~ ASSIStA'/]CP''
February 2005
T'irnes
Office of Pipeline Safety to Propose Costly Rules
Requiring Cities to Locate Private Facilities
By firm Hi~ins
On December 20, the Office of Pipeline Safer}' (MnOPS) will publish proposed permanent rules
requiring cities to install a locating (tracer) wire or "ocher equally effective means" of marking
private water and sewer service lines installed in public rights-of-way after December 31, ?005.
Other proposed rules would require cities to locate that portion of those facilities and to maintain
maps, diagrams, drawings, or geospatial (GIS) information regarding such facilities within the
public-right-of-~~~av that are installed after December 31, 2005. Because the rules would increase
city costs substantially and «~ould impose an unprecedented obligation to locate private facilities,
the League has expressed strong objections to imposing such rules and encourages cities to send
letters expressing their concerns and objections ro the proposed rules.
The proposed rules will be published in the December ?0 issue of the State Kegister and will
announce a public hearing to be held on Febniary I , 2005. ~I he exact time and place of the hearing
will be included with the published rules. To view the published rules, visit
w~~~w.minnesorabookstore.com (click on "Scare Register").
A copy; of the proposed permanent rules dated November 24, which have been approved for
publication by the Office of the Revisor of State Statutes, is currently available on the MnOPS
website at: ~ww.dps.state.mn.us%pipeline/publicnotice.html (click nn "MR %560 Final Orafr
1 1/24/04.pdf").
Comments may be submitted orally at the hearing or at any time before the close of the hearir:g
record. Following the February 1 hearing, there is a five working-day rebuttal period during which
interested parties and the Office of Pipeline Safety may respond ro new information submitted.
x111 comments and responses submitted to the Administrative Law Judge (ALJ) must be received
by the Office of Administrative Hearings no later than 4:30 p.m. on the due date for the close of
the rebuttal period established by the ALJ ar the hearing. Submit comments to: Richard Luis,
Administrative Law Judge, Office of Administrative Hearings, 100 Washington Square, Suite
1700, Minneapolis, MN 55401-218.
Prior to the hearing or during the comment or rebuttal period, the Office of Pipeline Safety has
requested that persons submitting written comments or data ro the ALJ also submit a copy of
those comments or data to the 1\InOPS contact person: Michael h~lcGrath, Coordinator, Damage
Prevention, Minnesota Office of Pipeline Safety, 444 Cedar Street, Suite 147> St. Paul, MN
55101-514?.
The League-along with the ~'~Iinnesota Municipal Utilities Association (MMUA), the Minnesota
Section of the American Water 1Y/orks Association, the City Engineers Association of Minnesota,
the Minnesota Public ~Wrks Association, the Minnesota \X/astewater Operators Association, and
the Suburban Rare Association-has raised serious objections to rule changes that MnOPS plans
to adopt.
~~
On Ta//pr
Uur (uuwunntuc ~ Uur ihufeaiuu
(Continued on Page 7)
Rural/Municipal Water and Wastewater publication of the Minnesota Rural Water Association
Elbow bake, MN 'Telephone: 800-367-6792 tax: 218-685-5272
Web: www.mrwa.com E-mail: mrwaC°mrwa.com
Member of the National Rural Water Association
Office of Pipeline Safety to Propose Costly Rules Requiring
.. ...
Cities to Locate Private Faci sties (continued from corer)
Over the past year, cir}' officials representing the League and organizations that represent the views of city officials
directly responsible for operating city water and sewer systems and overseeing the use of public rights-of--way, have
served on the MnOPS Rule %560 Advisory Committee and have offered alternatives to rules proposed by MnOPS.
Although the agency has made some minor modification to the initial proposed requirements for locating private
facilities, the current draft ignores many oFthe objections and concerns expressed by ciry officials.
The League and other organizations listed above have raised objections to the following provisions in the proposed
permanent rules:
• "756QO150 PUBLIC RIGI-I~h-0F-VUAY MAPPING AND Ii~1STr~LLATION. Subpart 1. Duty of operator
to map. After December 31, 2005, an operator shall maintain a map, a drawing or geospatial information
regarding the location of its underground facility within a public right-of-way installed after that date.
• Subp. ?. Duty to install locating wire. After December 31, 2005, an operator shall install a locating wire or
have an equally effective me°ans of marking the location of each nonconductive underground Facility within
a public right-of-~s~ay installed after that date. This requirement does not apply ~~~hen making minorrepaii-s
to an existing nonconductive facility."
• "7560.0375 LOCATING A SERVICE LATERAL. Subpart 1. C. Operator duties. After December 31,
2005, an operator of a se~~-age or water facility, at a minimum, shall locate that portion of the service lateral -_~
within a public right-of-~a~ay installed after that date. The operator shall either locate or provide information
as shown on maps, drawings, diagrams, or other records, on the location of a sewer or water service lateral
installed before January 1, 2006. If no information is available on a sewer or water service lateral installed
before January 1, 20~06,,then notifying the excavator that no information exists fulFlls the requirements: of
this section."
The League has argued that cities are not responsible for private underground facilities simply because the facilities
are connected to city water and sewer systems. Since cities neither install, own, or maintain water and sewer laterals,
cities should not be held responsible For locating them under requirements and locating standards imposed b~~
Chapter 216D. Cities have raised strong objections ro the imposition of such costly requirements, which the agency-
insists are needed ro improve public safety. 'The League has maintained that the threat to public safety hasbeen raised
by private utility contractors and excavators vv~ho are increasingly using horizontal directional drilling (HDD)
methods of excavation, sometimes termed "nenchless excavation" and that imposing duties and new requirements on
cities at the expense of local taxpayers will do little to improve public safety.
City officials have argued that expanded use of I-IDD technology has coincided with an increased number of "hits,"
as well as damage to property and injuries due ro resulting hazards such as gas leaks. City officials insist that many _,
of these incidents could be prevented if excavators and HDD operators followed existing MnOPS requirements prior
ro excavating in an area where installation parallels or crosses existing private water or sewer lines. Locating
technologies, such as tracer wire, have not succeeded in locating water and sewer lines that are often buried at least:
8 feet below ground. Indeed, varying soil conditions and that nearby presence of other metallic underground facilities
decreases the likelihood of accurate readings ro identify the actual location of non-metallic private water or sewer
Faci}sties and make it possible for cities to mark exactly where such facilities are buried.
Reprinted from Cities Bulletin-0nline Edition, Issue 32, December 17, 2004