Are You Prepared for the Changes Coming to Indiana's Dig Law?
House Bill 1122 passed the Indiana State Congress and will effect changes to Indiana’s Dig Law found at IC 8-1-26.1 The changes are effective as of January 1, 2025.
First, the law now uses the term “prevailing time” which means the time observed in Indianapolis, Indiana.2 Indianapolis observes Eastern Standard Time, and all counties in Indiana observe Daylight Savings Time. Twelve counties in the northwest (around Chicago)3 and in the southwest (Evansville Metro Area)4 observe Central Standard Time. Therefore, utilities and excavators in these areas will need to be aware of the difference between their local time, and the “prevailing time” in the law.
All utilities and excavators need to be aware that hours have been added to the definition of “working days” which is now defined as “…every day, except Saturday, Sunday, and state and national legal holidays, from 7:00 a.m. to 6:00 p.m. prevailing time.”5 IC 8-1-26-16(c) has been amended to require notice of excavation (or demolition) to be given two full working days before excavation can commence. Also, an excavator may not begin work before 7:00 a.m. prevailing time on the date of commencement.6 Therefore, under this new amendment, if an excavator gives notice on Wednesday at 7:01 a.m., day one is Thursday, and day two is Friday. The next full working day is Monday at 7:00 a.m. EST, as Saturday and Sunday are excluded from the definition of “working days.” If Monday were a legal holiday, the excavator would be required to wait until 7:00 a.m. EST on Tuesday to commence its excavation. However, an excavator could begin its work earlier if every affected utility has marked its facilities or provided a positive response that no conflict exists.7
Also note that the amendment of IC 8-1-26-16 reduces the allowed excavation start date from 20 calendar days to 10 calendar days. The original statute and amendment clearly use calendar days rather than “working days” in this provision. It states, “The notice required under subdivision (1) must be received at least two (2) full working days but not more than ten (10) calendar days before the commencement of the work.”8 Notice is also considered received at the prevailing time. Therefore, an excavator is charged with planning the excavation to commence within 10 actual days, not working days of its call to 811. If the excavation does not “commence” or start within 10 days, a new 811 call should be made with at least two full working days lead time, even if all utilities marked their facilities under the original ticket. Otherwise, if the project commences after the 10 days, the excavator bears the risk that the original markings were destroyed or altered.
Even where the excavation has commenced within the 10 calendar days, a ticket expires on the 20th “day” at 11:59pm prevailing time.9 Interestingly, this provision does not use working days as defined in the statute, or calendar days as used in the above language in this same section. Arguably, the common definition of “days” is actual calendar days, not working days, and the excavator should assume the ticket expires on the 20th actual day after the ticket is called in.
The definition of a “Tolerance Zone” is added at IC 8-1-26-11.4, which means, “…an area extending not less than: (1) the width of the underground facilities of the physical plant; plus (2) two (2) feet above below and in a full radius surrounding all outer limits of the underground and aboveground facilities of the physical plant.” This new definition codifies the in the field practice of referencing the two foot area around the marked facility as the Tolerance Zone. IC 8-1-26-20(a)(2) requires an excavator to maintain a two foot clearance around a marked facility or take certain precautions including using hand, air, hydro or vacuum excavation within the two feet of the facility or other precautions to use mechanized equipment within the two feet. This definition now includes the total two foot radius around the facility, including above and below the facility, which is called the “donut radius.”
The statute now requires the utility to provide a positive response on all tickets, including design tickets, including a response that they have no conflict, within the notice period, that being by 7:00 a.m. prevailing time on the second full working day after the notice.10 The new amendment also puts the requirement on the excavator to acknowledge the positive responses before commencing excavation.
Tickets and their positive responses can be searched directly on the Indiana 811 website at indiana811.org. If your company is not currently using positive response, there are several training sessions still available this year which can be found on Indiana 811’s website. As a utility, the contract with your locator should be reviewed to ensure there is a provision requiring the locator to provide the timely positive response on your behalf.
First, the law now uses the term “prevailing time” which means the time observed in Indianapolis, Indiana.2 Indianapolis observes Eastern Standard Time, and all counties in Indiana observe Daylight Savings Time. Twelve counties in the northwest (around Chicago)3 and in the southwest (Evansville Metro Area)4 observe Central Standard Time. Therefore, utilities and excavators in these areas will need to be aware of the difference between their local time, and the “prevailing time” in the law.
All utilities and excavators need to be aware that hours have been added to the definition of “working days” which is now defined as “…every day, except Saturday, Sunday, and state and national legal holidays, from 7:00 a.m. to 6:00 p.m. prevailing time.”5 IC 8-1-26-16(c) has been amended to require notice of excavation (or demolition) to be given two full working days before excavation can commence. Also, an excavator may not begin work before 7:00 a.m. prevailing time on the date of commencement.6 Therefore, under this new amendment, if an excavator gives notice on Wednesday at 7:01 a.m., day one is Thursday, and day two is Friday. The next full working day is Monday at 7:00 a.m. EST, as Saturday and Sunday are excluded from the definition of “working days.” If Monday were a legal holiday, the excavator would be required to wait until 7:00 a.m. EST on Tuesday to commence its excavation. However, an excavator could begin its work earlier if every affected utility has marked its facilities or provided a positive response that no conflict exists.7
Also note that the amendment of IC 8-1-26-16 reduces the allowed excavation start date from 20 calendar days to 10 calendar days. The original statute and amendment clearly use calendar days rather than “working days” in this provision. It states, “The notice required under subdivision (1) must be received at least two (2) full working days but not more than ten (10) calendar days before the commencement of the work.”8 Notice is also considered received at the prevailing time. Therefore, an excavator is charged with planning the excavation to commence within 10 actual days, not working days of its call to 811. If the excavation does not “commence” or start within 10 days, a new 811 call should be made with at least two full working days lead time, even if all utilities marked their facilities under the original ticket. Otherwise, if the project commences after the 10 days, the excavator bears the risk that the original markings were destroyed or altered.
Even where the excavation has commenced within the 10 calendar days, a ticket expires on the 20th “day” at 11:59pm prevailing time.9 Interestingly, this provision does not use working days as defined in the statute, or calendar days as used in the above language in this same section. Arguably, the common definition of “days” is actual calendar days, not working days, and the excavator should assume the ticket expires on the 20th actual day after the ticket is called in.
The definition of a “Tolerance Zone” is added at IC 8-1-26-11.4, which means, “…an area extending not less than: (1) the width of the underground facilities of the physical plant; plus (2) two (2) feet above below and in a full radius surrounding all outer limits of the underground and aboveground facilities of the physical plant.” This new definition codifies the in the field practice of referencing the two foot area around the marked facility as the Tolerance Zone. IC 8-1-26-20(a)(2) requires an excavator to maintain a two foot clearance around a marked facility or take certain precautions including using hand, air, hydro or vacuum excavation within the two feet of the facility or other precautions to use mechanized equipment within the two feet. This definition now includes the total two foot radius around the facility, including above and below the facility, which is called the “donut radius.”
The statute now requires the utility to provide a positive response on all tickets, including design tickets, including a response that they have no conflict, within the notice period, that being by 7:00 a.m. prevailing time on the second full working day after the notice.10 The new amendment also puts the requirement on the excavator to acknowledge the positive responses before commencing excavation.
Tickets and their positive responses can be searched directly on the Indiana 811 website at indiana811.org. If your company is not currently using positive response, there are several training sessions still available this year which can be found on Indiana 811’s website. As a utility, the contract with your locator should be reviewed to ensure there is a provision requiring the locator to provide the timely positive response on your behalf.
Our team is constantly monitoring this topic. If you have additional questions and/or would like to learn more about Weltman’s consumer collections or commercial collections solutions, please contact attorney Stefanie Kempfer Collier or shareholder Amanda Yurechko at any time.
This blog is not a solicitation for business, and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
1 All citations in this article are to the new law as effective January 1, 2025, Per House Bill 1122.
This blog is not a solicitation for business, and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
