H. B. 2002
(By Delegates Browning and Staton)
(Introduced January 11, 1995; referred to the Committee
on the Judiciary then Finance.)
A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter twenty-four-c, relating to
underground facilities damage prevention and creation of a
one-call system; definitions; establishing duties and
responsibilities of operators of underground facilities;
certification and responsibilities of one-call system;
establishing duties and responsibilities of excavators who
engage in excavation or demolition work and imposing
liability for failure to comply; providing for temporary
marking of underground facilities; providing for exceptions
due to emergencies; construction and constitutional
immunity.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new
chapter, designated chapter twenty-four-c, to read as follows:
CHAPTER 24C. UNDERGROUND FACILITIES DAMAGE PREVENTION.
ARTICLE 1. ONE-CALL SYSTEM.
§24C-1-1. Purpose.
It is hereby declared to be the purpose and policy of the
Legislature in enacting this article to enhance the safety of the
citizens of this State and to provide increased protection to
underground facilities from damage due to excavation or
demolition by providing for the operation of a one-call system
for use by operators of underground facilities and by persons
engaged in excavation or demolition in the vicinity of
underground facilities.
§24C-1-2. Definitions.
As used in this chapter, unless the context clearly requires
a different meaning:
(a) "Damage" means any impact or contact with or weakening
of the support for an underground facility, its appurtenances,
protective casing, coating or housing, which, according to the
operation practices of the operator or state or federal
regulation, requires repair.
(b) "Demolish" or "demolition" means any operation by which
a structure or mass of material is wrecked, razed, rendered,
moved, or removed by means of any tools, equipment, or discharge
of explosives which could damage underground facilities.
(c) "Emergency" means:
(1) A condition constituting a clear and present danger to
life, health or property by reason of escaping toxic, corrosive
or explosive product, oil or oil-gas or natural gas hydrocarbon
product, exposed wires or other breaks or defects in an
underground facility; or
(2) A condition that requires immediate correction to assure continuity of service which is rendered by use of an underground
facility.
(d) "Equipment operator" means any individual in physical
control of powered equipment or explosives when being used to
perform excavation work or demolition work.
(e) "Excavate" or "excavation" means any operation in which
earth, rock, or other material in the ground is moved, removed,
or otherwise displaced by means of any tools, equipment, or
explosives, and includes, without limitation, grading, trenching,
digging, ditching, dredging, drilling, augering, tunnelling,
moleing, scraping, cable or pipe plowing and driving, wrecking,
razing, rendering, moving, or removing any structure or mass of
material, but not including the tilling of soil for agricultural
purposes or for domestic gardening. Further, for purposes of
this article, the terms "excavate" or "excavation" shall not
include routine maintenance of paved public roads or highways by
employees of state, county or municipal entities or authorities
who:
(1) Perform all work within the confines of the traveled
portion of the paved public way; and
(2) Do not excavate to a depth greater than twelve inches
measured from the top of the paved road surface.
(f) "Excavator" means any person intending to engage or
engaged in excavation or demolition work.
(g) "Member" means a member of a one-call system.
(h) "One-Call System" means a communication system that
receives notification from excavators of intended excavation work
and prepares and transmits such notification to operators of underground facilities in accordance with this article.
(i) "Operator" means any person who owns or operates an
underground facility used in the providing or transmission of any
of the goods or services described in subdivision (l) of this
subsection.
(j) "Person" means any individual, firm, joint venture,
partnership, corporation, association, state agency, county,
municipality, cooperative association or joint stock association,
and any trustee, receiver, assignee, agency or personal
representative thereof.
(k) "Powered Equipment" means any equipment energized by an
engine, motor or hydraulic, pneumatic or electrical device and
used in excavation or demolition work.
(l) "Underground Facility" means any underground pipeline
facility used in the gathering, transportation or distribution of
gas, oil or a hazardous liquid; any underground facility used as
a water main, storm sewer, sanitary sewer, steam line, or for
other liquid or gas service; any underground facility used for
electrical power transmission or distribution; any underground
cable, conductor, waveguide, glass fiber or facility used to
transport telecommunications, optical, radio, telemetry,
television, or other similar transmissions; any facility used in
connection with any of the foregoing facilities on a bridge, a
pole or other span, or on the surface of the ground; any
appurtenance, device, cathodic protection system, conduit,
protective casing or housing used in connection with any of the
foregoing facilities: Provided,
That "underground facility"
shall not include interstate transmission facilities as defined in the federal Natural Gas and Hazardous Liquid Pipeline Safety
Acts.
(m) "Work day" means any day except Saturday, Sunday or a
federal or state legal holiday.
(n) "Work site" means the location of excavation or
demolition work as described by an excavator, operator, or person
or persons performing the work.
§24C-1-3. Duties and responsibilities of operators of
underground facilities; failure of operator to
comply.
(a) Each operator of an underground facility in this state,
except any state agency, any municipality or county, or any
municipal or county agency, shall be a member of a one-call
system for the area in which the underground facility is located.
State agencies, municipalities and counties and municipal and
county agencies may be voluntary members of such a one-call
system.
(b) Each member shall provide the following information to
the one-call system on forms developed and provided for that
purpose by the one-call system:
(1) The name of the member;
(2) The geographic location of the member's underground
facilities as prescribed by the one-call system; and
(3) The member's office address and telephone number to
which inquiries may be directed as to the locations of the
operator's underground facilities.
(c) Each member shall be required to revise in writing the
information required by subsection (b) of this section as soon as reasonably practicable, but not to exceed one hundred eighty
days, after any change.
(d) Within forty-eight hours, excluding Saturdays, Sundays
and legal federal or state holidays, after receipt of a
notification by the one-call system from an excavator of a
specific area where excavation or demolition will be performed,
the operator of underground facilities shall:
(1) Respond to such notification by providing to the
excavator the approximate location, within two feet horizontally
from the outside walls of such facilities, and type of
underground facilities at the site; and
(2) Use the color code prescribed in section six of this
article when providing temporary marking of the approximate
location of underground facilities.
(e) Failure of an operator who is required to be a member to
comply with the provisions of this article shall not prevent the
excavator from proceeding but shall act to bar the operator from
recovery of any costs associated with damages to its underground
facilities resulting from such failure, except for damages caused
by the willful or intentional act of the excavator.
(f) The provisions of subsection (e) of this section
notwithstanding, such a member is not barred from recovery under
subsection (e) for failure to comply with subdivision (1),
subsection (d) of this section, but shall have his right to
recover, if any, determined by common law, if:
(1) The portion of the underground facility which is
damaged is constructed of plastic or other nonmetallic material,
the location of which is not reasonably capable of accurate detection by any means other than excavating;
(2) At the time of construction of the portion of the
underground facility which is damaged, there was no requirement
under federal or state law that the facility be equipped with a
metallic tracing system or other means of detection, and the
facility was not so equipped;
(3) The member did not construct the portion of the
underground facility which is damaged nor had any interest in or
relationship with said construction, but acquired the facility
subsequent to its construction; and
(4) The member undertook all reasonable efforts to comply
with said subdivision (1), subsection (d) of this section.
§24C-1-4. Qualifications for certification and responsibilities
of a one-call system.
(a) In order to qualify for certification as a one-call
system under the provisions of this article, a one-call system
shall be:
(1) Operated by one or more of the following:
(A) A person who operates underground facilities;
(B) A private contractor;
(C) A state or local government agency; or
(D) A person who is otherwise eligible under state or
federal law to operate a one-call system; and
(2) A nonprofit, membership corporation.
(b) A one-call system which complies with the requirements
set forth in subsection (a) of this section shall be certified by
the public service commission for the area in which it conducts
operations prior to commencing such operations:
Provided,
That any one-call system in operation prior to the first day of
January, one thousand nine hundred ninety-five shall not be
required to be so certified. The public service commission shall
certify a one-call system where the public interest so requires
and when such system complies with the provisions of this
article.
(c) A one-call system operating under the provisions of this
article shall:
(1) Receive and record information from excavators about
intended excavation or demolition activities;
(2) Promptly transmit to its affected members the
information received from excavators about intended excavation or
demolition;
(3) Maintain a record of each notice of intent to engage in
excavation or demolition as required by section five of this
article;
(4) Upon receipt of notification of intended excavation or
demolition from an excavator, inform the person making such
notification of the name of all members having underground
facilities in the vicinity of the intended work site; and
(5) Assign a serial number for each notification received
from an excavator and provide that serial number to both the
excavator and affected members.
§24C-1-5. Duties and responsibilities of excavators; failure of
excavator to comply.
(a) Except as provided in section seven of this article, any
person who intends to perform excavation or demolition work
shall:
(1) Not less than forty-eight hours, excluding Saturdays,
Sundays and legal federal or state holidays, nor more than ten
work days prior to the beginning of such work, notify the
one-call system of the intended excavation or demolition and
provide the following information:
(A) Name of individual making the notification;
(B) Company name;
(C) Telephone number;
(D) Company address;
(E) Work site location, including county, nearest city or
town, street location, nearest cross street and landmarks or
other location information;
(F) Work to be performed;
(G) Whether or not use of explosives is planned;
(H) Name and telephone number of individual to contact; and
(I) Starting date and time.
(2) Notify the one-call system not less than twenty-four
hours, excluding Saturdays, Sundays and federal or state
holidays, in advance of any change in the starting date or time
of the intended work; and
(3) Instruct each such equipment operator involved in the
intended work:
(A) To perform all excavation or demolition work in such a
manner as to avoid damage to underground facilities in the
vicinity of the intended work site;
(B) To report immediately any break or leak in underground
facilities, or any dent, gouge, groove or other damage to such
facilities, made or discovered in the course of the excavation or demolition, and to allow the operator a reasonable time to
accomplish necessary repairs before continuing the excavation or
demolition in the immediate area of such facilities;
(C) To immediately alert the public at or near the work site
as to any emergency created or discovered at or near such work
site;
(D) To maintain a clearance between each underground
facility and the cutting edge or point of any powered equipment,
taking into account the known limit of control of such cutting
edge or point, as may be reasonably necessary for the protection
of such facility;
(E) To protect and preserve markers, stakes and other
designations identifying the location of underground facilities
at the work site; and
(F) To provide such support for underground facilities in
the location of the work site, including during backfilling
operations, as may be reasonably necessary for the protection of
such facilities. Temporary support and backfill shall provide
support for such facilities at least equivalent to the previously
existing support.
(b) If any underground facility is damaged by any person who
has failed to comply with any provision of this section, such
person shall be liable to the operator of the underground
facility for the total cost to repair such damaged facility as
such cost is normally computed by the operator, provided that the
operator:
(1) Is a member of the one-call system covering the area in
which the damage to the facility takes place; and
(2) Upon receiving the proper notice in accordance with this
article, has complied with the provisions of section three of
this article:
Provided,
That a member is not barred from
recovery of costs for failure to comply with subdivision (1),
subsection (d) of said section three, but shall have his right to
recover, if any, determined by common law, if all of the
conditions of subsection (f) of said section three are met.
The liability of such person for such damage shall not be
limited by reason of this article.
§24C-1-6. Standard color code for temporary markings.
Temporary marking provided by operators and excavators to
indicate the approximate location of underground facilities and
work site boundaries shall utilize the following color code:
Facility TypeIdentifying Color or Equivalent
a. Electrical power Safety Red
distribution and
transmission
b. Municipal electric Safety Red
systems
c.Gas distribution and High Visibility Safety Yellow
transmission
d.Oil and petroleum High Visibility Safety Yellow
transmission
e.Dangerous materials, High Visibility Safety Yellow
product lines, steam
lines
f.Telephone and telegraph Safety Alert Orange
systems
g.Police and fire Safety Alert Orange
communications
h.Cable television Safety Alert Orange
i.Water systems Safety Precaution Blue
j. Slurry systems Safety Precaution Blue
k. Sewer systems Safety Green
l. Proposed excavations White
§24C-1-7. Exceptions during emergencies.
(a) Compliance with the notification requirements of
section five of this article is not required of any person
engaging in excavation or demolition in the event of an
emergency:
Provided,
That such person shall give oral
notification of the emergency work as soon as reasonably
practicable to the one-call system.
(b) During any such emergency, excavation or demolition may
begin immediately:
Provided,
That reasonable precautions shall be
taken to protect underground facilities:
Provided, however,
That
such precautions shall not serve to relieve the excavator from
liability for damage to underground facilities. The one-call
system shall accept all emergency notifications and shall provide
immediate notice to the affected members and indicate the
emergency nature of the notice.
§24C-1-8. Construction; constitutional immunity.
(a) This article shall be liberally construed so as to
effect the declaration of public policy set forth in this
article.
(b) Nothing in this article shall be construed to purport to
impose liability upon a state agency from which such agency is constitutionally immune.
Note: The purpose of this bill is to establish a system for
reporting the locations of underground facilities such as gas
pipe lines and other utilities, and a one-call system where
anyone who owns underground facilities will be required to report
the location of underground facilities to persons doing
excavation near the facility.