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Thelen Reid Brown Raysman & Steiner LLP
INTRODUCTION
A complex network of utilities lies beneath our feet - pipelines, power lines, water lines and gas lines, to name a few. As early as the 1940s, these underground facilities began to pose serious problems for excavators and others involved in construction. 1/ As the number of underground facilities has increased, so has the chance of running into one.
Starting in 1968, the federal government began attempting to address these problems. 2/ The issue came to a head in the late 1990s after a series of devastating pipeline accidents. On September 27, 1996, New Jersey Rep. Bob Franks gave an impassioned speech to the House of Representatives reflecting the concerns:
[T]he existing regulatory scheme governing pipelines is inadequate. It is frighteningly clear that not enough attention or resources are being dedicated to confronting the most significant dangers relating to pipelines. While statistically one may be more likely to be struck by lightening than die in a pipeline accident, the potential for large-scale fatalities from a pipeline explosion are frightening and real. 3/
Rep. Franks spoke in support of S. 1505, known as the Accountable Pipeline Safety and Partnership Act of 1996. 4/ While the 1996 Act and those that came after it made the first real steps at apportioning liability and creating One-Call centers, none of the federal acts has created the uniform regulations that many believe are needed to adequately and efficiently address how underground utilities can safely co-exist with growth, development and construction activities.
An estimated "[t]wo-thirds of pipeline accidents are. caused by third parties. These third parties are generally excavation crews that hit pipelines and never report the damage to the operator of the pipeline so that corrective action can be taken." 5/ It also is clear that such accidents can lead to significant death and damage. 6/ These concerns apply not only to pipelines but to the many other underground utilities.
Federal law requires One-Call centers, and each state has a damage-prevention statute governing the activities of excavators and underground utility owners and operators. However, there is no uniform federal or other regulation of One-Call centers. Instead, each state has enacted its own One-Call damage prevention statute. These statutes establish notification centers and set forth the procedures and timelines for One-Call notifications. But, details vary significantly from one state to another. Some states require participation by every utility while others do not. Some states impose affirmative duties on designers and other construction professionals in addition to excavators.
Because there are at least 50 different One-Call statutes, it is critical for excavators and other construction professionals to understand the One-Call laws that apply to each of their projects. Contrary to what the name implies, excavators have numerous duties under these statutes, and one phone call, without more, can constitute non-compliance. In addition, One-Call centers typically will not detail or explain excavation laws. Accordingly, any person covered by a One-Call statute should make a point of learning the law applicable to the project.
This article addresses some of the challenges excavators face under current One-Call laws.
WHO IS COVERED
A One-Call system's success often depends on how many utilities participate. Most states require participation by most or all major utilities. In Colorado, for example, "Every owner or operator of an underground facility in this state shall join the notification association pursuant to Section 9-1.5-105." 7/ This is one of the clearest examples of mandatory participation language. Statutes generally provide for penalties and/or utility liability in the event of non-participation.
In voluntary participation states, excavators must contact non-participating utilities. South Carolina's statute, for example, provides that excavators must serve notice on "such association and each operator. that is not receiving the services of the association." 8/ Only a few states still have voluntary participation statutes , and the number is likely to decline in the next few years. 9/ New Mexico, for instance, once was a completely voluntary state. It recently changed its statute and now requires participation by pipeline facility owners and operators. 10/ At least two other voluntary states, Alabama and North Carolina, were expected to revisit this issue in 2006. 11/
But, excavators cannot rely on a bright-line mandatory versus voluntary distinction. Some states have hybrid mandatory policies. In Texas, for example, facilities are grouped into Classes A and B. Participation is mandatory for Class A facilities (electric, gas, petroleum, steam, telecommunication and any other facility not specified in Class B), but Class B (water, slurry or sewage) facilities "are not required to register with a notification center." 12/ In Tennessee, excavators must notify utilities directly when "the proposed area of excavation or demolition is not served by the one-call service." 13/
Voluntary and hybrid states and states without full One-Call coverage present fundamental and troubling problems for excavators. There often is not an authoritative list of non-participating utilities that excavators can work from in making required contacts. One-Call centers, for example, typically decline to speak for or to list non-member utilities for fear of incurring liability. Rather, excavators often must call local utilities and try to learn of non-participants by word of mouth. They also can review One-Call statutes to see whether the statutes list non-participants or categories of non-participants. Excavators may have to review county property records for easements and other indications of utilities. The lack of a central source of information coupled with notification requirements effectively creates an "excavator beware" situation.
Contractors are not the only people affected by One-Call laws. They apply to homeowners and others involved in construction and landscaping. While exemptions exist in some states, they are the exception, not the rule. In fact, non-excavators - such as architects, engineers and other professionals - also may be subject to One-Call laws. And, not all One-Call laws apply only to digging. Many statutes also apply to demolition or other construction activities that could interfere with underground utilities.
Every One-Call statute is mandatory for excavators. A typical statute reads: "Every person planning to conduct any excavation shall contact the appropriate regional notification center." Excavation refers to "any operation in which earth, rock, or other material in the ground is moved, removed, or otherwise displaced by means of tools, equipment, or explosives in any of the following ways: grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing and driving, or any other way." 14/
Exemptions for excavators are narrowly worded. In some states, the Department of Transportation (either generally or to the extent it digs within specified areas) is exempted. Other examples include:
|  | North Carolina exempts homeowners not using mechanized equipment except when there is a recorded underground utility easement that describes the location of the easement with specificity. 15/
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| | The District of Columbia exempts "Persons and operators excavating for routine maintenance. if they excavate within the limits of the original excavation, and if the excavation does not exceed 12 inches in depth." 16/
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| | Massachusetts "exclude[es] excavation by tools manipulated only by human power for gardening purposes and use of blasting for quarry purposes." 17/
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| | Kentucky exempts "The opening of a grave in a cemetery." 18/
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Because exempt classifications vary significantly from state to state, it is advisable to check the applicable One-Call statute before beginning construction.
Even if an excavator believes it is exempted from compliance, a good rule of thumb is to call whenever any digging at depth is planned. Exempted groups face liability in the event of an accident while compliance often offers statutory protections. In Texas, for instance, "activities performed on private property in connection with agricultural operations" are exempted. But, when an exempted person complies with the statute, "the person is not liable to the underground facility owner for damages to the underground facility." 19/
Some states impose affirmative obligations on others besides excavators. North Carolina mandates: "The person financially responsible shall provide to the person responsible for doing the excavating, the names of all underground utility owners in the area of the proposed excavation." 20/ In Colorado, "[a]rchitects, engineers, or other persons designing excavation shall obtain general information as to the description, nature, and location of underground facilities in the area of such proposed excavation and include such general information in the plans or specifications.." 21/
Some of the more expansive statutes apply to any construction activity that threatens to interfere with utilities. The Illinois and the District of Columbia laws, for example, explicitly apply to excavation and demolition. 22/ At least one court has even extended a One-Call statute to above ground utilities. As explained in City of New York v. Verizon New York, 5 A.D.3d 130, 131 (1st Dept. 2004), "if the thrust of the statutory policy is the protection of a public utilities corporation's facilities during an excavation project and the statutory language covers not only the utility's various 'conduits,' but 'all fixtures and appliances connected therewith or attached thereto,' which take myriad forms and may be above or below ground, then it is also clear that the statutory protection should not be limited merely to underground facilities."
Thus, whatever the construction activity, it is important to understand the applicable state One-Call statute.
DUTIES
One of the most important steps in every One-Call system involves marking underground utilities so that excavators and others can identify and protect the utilities from harm.
| A. | What Excavators Must Do |
Excavators must provide accurate information to utilities and the One-Call center. For example, a Florida excavator could not assert any theory of liability, even common law negligence, when it provided the wrong address to the One-Call notification center. 23/ Excavators also must determine what information they need before contacting their One-Call center. The required categories of information can be found in the applicable One-Call statute, in related rules or regulations, and on the One-Call Web site for the location.
In many states, excavators must mark the proposed excavation area. Such marks must be made before utilities respond to the One-Call request. In Maine, for example, "Prior to notifying the system, the area of proposed excavation must be marked by the excavator in a manner designed to enable the operator of the underground facility to know the approximate boundaries of the proposed excavation." 24/ Maine was one of the first states to have mandatory pre-markings for non-emergency excavations.
Excavator markings almost always are white and consist of flags, spray paint, chalk, staking, or other prescribed methods. 25/
Requiring excavator pre-marking serves the following purposes:
| | Provides greater accuracy because excavators can show exactly where they intend to dig.
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| | Reduces the possibility of miscommunication.
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| | Saves utilities time and money by putting the burden on excavators to mark correctly and on time.
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Some states also provide special procedures for particularly large construction projects or otherwise complicated or impractical situations - such as proposed excavation in a private yard with dogs. If the applicable statute provides for such a procedure, the special circumstances should be explained to the One-Call operator when notice is given. A few states expressly limit the size of an area excavators can specify. Such limits reflect the need for cooperation between excavators and utilities.
Contacting a One-Call center triggers utility obligations. Participating utilities must identify - or "locate" - their underground facilities and surface mark them according to statutorily specified color codes. Excavators can find information on color codes at their local One-Call center, on state-specific One-Call Web sites or in the applicable statute. Following is the Uniform Color Code of the American Public Works Association:
| Color | Feature Identified
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| Red | Electric power lines, cables, conduit and lighting cables
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| Yellow | Gas, oil, steam, petroleum, gaseous materials
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| Orange | Communications, alarm or signal lines, cable or conduit
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| Blue | Water, irrigation and slurry lines
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| Green | Sewers and drain lines
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| Pink | Temporary survey markings
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| Purple | Cable television
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| White | Proposed excavation
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Some states have other marking requirements, such as horizontal and depth indicators, and use abbreviated codes to specifically identify utility types.
Each state requires a certain degree of precision when utilities mark their underground facilities. The accuracy is reflected in the required tolerance or safety zone for excavation. A safety zone identifies the number of inches on either side of the utility within which excavators must assume the presence of that utility. These zones typically range from 18 to 30 inches on either side of the utility although some statutes may impose a more general standard of care.
Most states expressly describe the special care required when excavators are working within safety zones. Nevada, for example, provides that the person responsible for excavation must "prior to using any mechanical equipment, determine the exact location of the subsurface installation. with hand tools or by any other method agreed upon.." 26/ Some states now impose recording and technology requirements on underground utilities placed after certain dates. But, excavators still must use the utmost care whenever their work may encounter underground utilities. 27/ This is because problems can arise even when the most up-to-date technology is used.
Excavators are responsible for preserving underground facility designations. When marks fade or are otherwise destroyed, excavators must re-notify their One-Call center and request remarking.
Some states take a more proactive stance and require excavators to maintain documentation or other procedures to ensure such preservation of markings. Colorado, for example, requires photos, videos, sketches or other documentation whenever excavation occurs within 18 inches of an underground facility. Excavators must notify the One-Call center or affected utility if such documentation "becomes lost or invalid" and "cease excavation activities" until "the location of any underground facilities has been re-verified." 28/
In some states, excavators may be charged for repeat notices - particularly when marks are destroyed through the excavator's fault. Kansas Statutes Annotated §66-1804 (c) provides: "No person shall make repeated requests for remarking unless the request is due to circumstances not reasonably within the control of such person." Arkansas Statutes Annotated §42.30.410 (g) provides that utilities have the right to receive compensation from an excavator for subsequent locate requests during the an excavation project "if the excavator failed to maintain the original marking." But such fees are small compared to the potential liability for failing to preserve markings.
NOTICE
Every statute sets out notification periods, including: the time frame within which a one-call center must be notified (usually an earliest-latest range); the time within which utilities must respond; the time within which utilities must respond to subsequent or special notices (because marks have faded or been removed, for failure to respond to an earlier request, for special notices such as blasting or to emergency excavation requests); and when utility markings expire - after which time continued excavation constitutes a violation.
Every state sets a time frame within which excavators must notify One-Call centers or utilities. Compliance involves careful scheduling by excavators.
While typical notification periods range from 2 to 10 days, significant deviations exist. Be sure to confirm the applicable time frame before making a One-Call notification.
Most utilities must respond within two to three days of a One-Call notification. Check the applicable statute for differences and exceptions. Following are a few examples:
| | In Illinois, "No owner operator. shall be subject to a penalty where a delay in marking or a failure to properly mark. is caused by conditions beyond the reasonable control of such owner or operator." 29/
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| | In Kentucky, utilities do not have to comply with time requirements once they have notified the excavator that extraordinary circumstances exist. 30/
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| | In Alaska, utilities have 10 days to mark locations in remote, unstaffed or inaccessible locations. 31/
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Unless the applicable statute provides otherwise, excavators should never begin excavation until the utility response time has expired. This is true even if every utility has consented to excavation proceeding.
Under some statutes, utility marks expire after a specified number of days, usually somewhere in the range of 10 to 30 days. Re-notification usually is required a specified number of days before expiration. In states without expiration dates, utility markings generally remain in force as long as they are visible. 32/
| C. | Emergency Excavation Procedures |
A typical definition of an emergency excavation is "a locate request for any condition constituting an imminent danger to life, health, property, or a utility service outage, and which requires immediate repair or action." 33/ Although exact definitions vary from state to state, many states have emergency excavation procedures.
Most emergency excavation procedures require only minimal notice, ranging from as much notice as possible to a few days. Illinois, for example, imposes a wait time for emergency locate requests of at least two hours. 34/ But don't be fooled by these abbreviated time periods. Excavators proceeding before the normally prescribed notice period often do so at their own risk.
Any excavator that thinks its situation constitutes an emergency should first consult the applicable statute. Take caution before calling an excavation an emergency because some states penalize false emergency notifications. 35/
CONCLUSION
Each One-Call statute provides its own set of detailed procedures and requirements. Most One-Call centers will not provide this information, and One-Call Web sites are not always reliable. 36/ Accordingly, until a uniform and reliable set of rules is established, excavators must determine their duties by referring to the applicable statutes and regulations in each state where they operate.
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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-369-7229 or at pwberning@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
ENDNOTES
(All citations to state statutes are as of 2005. All web citations were last visited on November 10, 2005.)
| 1/ | See, Perry v. Ready Mix Concrete Const. Co. 19 S.E.2d 196 (Ga.App. 1942) [pedestrian passing along an adjoining street was burned when a contractor accidentally broke an underground gas pipeline].
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| 2/ | The federal laws relating to underground facilities are codified at 49 USC §§60101, et seq. and consist of:
| Natural Gas Pipeline Safety Act of 1968 (PL 90-481, August 12, 1968, 82 Statute 720) [inspection and maintenance minimum requirements for "persons who engage in the transportation of gas or who own or operates pipeline facilities"].
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| Pipeline Safety Act of 1979 (PL 96-129, November 30, 1979, 93 Statute 989) [added pipelines carrying liquids to the 1968 Act].
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Pipeline Safety Reauthorization Act of 1988 (PL 100-561, October 31, 1988, 102 Statute 2805) [setting out
basic One-Call Notification system requirements for grant allocation purposes].
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| Pipeline Safety Act of 1992 (PL 102-508, October 24, 1992, 106 Statute 3289) [criminal penalties for engaging in excavation "without first using an available one-call notification system," as clarified in United States v. Plummer, 65 F. Supp. 2d 1013, 1016 (D.Minn. 1999), which held that a party can recover damages under the 1992 Act only when the harm is committed knowingly and willfully].
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| Accountable Pipeline Safety and Partnership Act of 1996 (PL 104-304, October 12, 1996, 110 Statute 3793) [requiring, according to 61 Am. Jur. 2d Pipelines §12, that [e]very state must establish a one-call notification system"].
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| Transportation Equity Act of 1998 (PL 105-178, June 9, 1998, 112 Statute 107) [grants for establishing state-wide One-Call centers].
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| Pipeline Safety Improvement Act of 2002 (PL 107-355, December 17, 2002, 116 Statute 2985) [arguably the strongest Act to date, it enhanced enforcement provisions and led to establishment of a single nationwide (811) telephone number for One-Call programs, according to Carol M. Parker in The Pipeline Industry Meets Grief Unimaginable: Congress Reacts with the Pipeline Safety Improvement Act of 2002, Natural Resources Journal, Winter 2004, pp. 275-276, available at www.pipelinesafetyconsortium.org/0525%20Parker%20Proofs.pdf].
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| 3/ | 142 Cong.Rec. E1869-02, regarding the Accountable Pipeline Safety and Partnership Act of 1996.
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| 4/ | PL 104-304, October 12, 1996, 110 Statute 3793.
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| 5/ | 142 Cong.Rec. E1869-02, regarding the Accountable Pipeline Safety and Partnership Act of 1996.
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| 6/ |
| Carol M. Parker, The Pipeline Industry Meets Grief Unimaginable: Congress Reacts with the Pipeline Safety Improvement Act of 2002, Natural Resources Journal, Winter 2004, pp. 275-276, available at www.pipelinesafetyconsortium.org/0525%20Parker%20Proofs.pdf [pipeline explosion killed 12 family members camping and fishing on the banks of the Pecos River].
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| Jeff Griffin, HDD Industry Receiving Bad Rap Regarding Accidents, Underground Construction, April 1, 2001 [1998 explosion in St. Cloud, Minnesota, killed 4 people, injured 15 others and damaged or destroyed 15 buildings].
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| Report by National Transportation Safety Board, Pipeline Rupture and Subsequent Fire in Bellingham, Washington June 10, 1999, at 1 (2002) [1999 explosion in Bellingham, Washington, killed three people and resulted in an estimated $45 million in damage. Failure to report and attend to pipeline damage resulting from excavation contributed to the tragedy].
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| Cris Barrish and Jeff Montgomery, Trail Hazards Span U.S., Wilmington (Delaware) News Journal (August 26, 2001).
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| 7/ | Colorado Revised Statutes Annotated §9-1.5-104.5.
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| 8/ | South Carolina Code Annotated §58-35-60 (a) (1) and (2).
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| 9/ | PowerPoint Presentation by Rick Pevarski of Virginia Utility Protection Service, Inc. and Brian Tooley of MCI and National Traffic Data Acquisition Conference, Damage Prevention Conference and Expo, Houston, Texas, December 7, 2005.
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| 10/ | New Mexico Statutes Annotated §62-14-7.1 [general utilities still can choose whether or not to participate].
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| 11/ | PowerPoint Presentation by Rick Pevarski of Virginia Utility Protection Service, Inc. and Brian Tooley of MCI and National Traffic Data Acquisition Conference, Damage Prevention Conference and Expo, Houston, Texas, December 7, 2005, identifying states that are currently working to enhance their One-Call laws.
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| 12/ | Texas Utilities Code Annotated §§251.002 and 251.107; Frequently Asked Questions at www.texasonecall.com/.
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| 13/ | Tennessee Code Annotated §65-31-106 (a) (1).
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| 14/ | California Government Code §§4216.2, 4216.
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| 15/ | North Carolina General Statutes Annotated §87-114.
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| 16/ | District of Columbia Code §34-2705.
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| 17/ | Massachusetts General Laws Annotated Chapter 82, §40.
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| 18/ | Kentucky Revised Statutes Annotated §367.4915 (5).
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| 19/ | Texas Utilities Code Annotated §251.156.
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| 20/ | North Carolina General Statutes Annotated §87-105.
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| 21/ | Colorado Revised Statutes Annotated §9-1.5-103 (1).
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| 22/ | 220 Illinois Revised Statutes Chapter 50, ¶4 (a) and District of Columbia Code §34-2704 (a).
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| 23/ | Martin v. Florida Power and Light Co., 909 So.2d 555, 557 (Fla.App. 2005).
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| 24/ | Maine Revised Statutes Annotated Title 23, §3360-A (3) (c).
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| 25/ | Excavator Handbook, p.3 at www.illinois1call.com/ recommends black marks when it is snowing.
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| 26/ | Nevada Revised Statutes §455.137 (1).
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| 27/ | Arizona Revised Statutes Annotated §40-360.22 (J).
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| 28/ | Colorado Revised Statutes Annotated §9-1.5-103 (4) (c).
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| 29/ | 220 Illinois Revised Statutes Chapter 50, ¶11 (g).
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| 30/ | Kentucky Revised Statutes Annotated §367.4909 (6): "Extraordinary circumstances include extreme weather conditions, disasters, or civil unrest that make timely response difficult or impossible."
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| 31/ | Alaska Statutes §42.30.410 (d).
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| 32/ | Frequently Asked Questions at www.oups.org/: "It is not necessary to update tickets unless markings are no longer visible and you need remarking. Ticket numbers are good until remarkings are needed and if the crew has started within ten days and has not left the site."
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| 33/ | 220 Illinois Revised Statutes Chapter 50, ¶2.6.
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| 34/ | 220 Illinois Revised Statutes Chapter 50, ¶6 (a).
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| 35/ | See, for example, Kansas Statutes Annotated §66-1807 (c).
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| 36/ | Frequently Asked Questions at www.al1call.com/. While One-Call Web sites provide invaluable facts and contact information, they sometimes are outpaced by the ever-changing state statutes. |
©2006 Thelen Reid Brown Raysman & Steiner LLP
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