ENROLLED
H. B. 108
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Passed July 15, 1996; in effect from passage.]
AN ACT 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; declaring
legislative purpose; defining certain terms; requiring
operators of underground facilities to be members of a one-
call system; exempting certain entities and activities from
such requirement; authorizing voluntary membership of
certain exempted entities; setting forth duties and
responsibilities of members of a one-call system; providing
for the operation and responsibilities of a one-call system;
requiring certification of one-call systems by the public
service commission; exceptions; setting forth duties and
responsibilities of persons who perform excavation or
demolition work; establishing standard color code for temporary markings of underground facilities and work site
boundaries; creating exceptions from notification
requirements in emergency situations; providing for liberal
construction of article; and preserving sovereign immunity
of state agencies.
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:
Provided, That "demolish" and "demolition" do not include earth-
disturbing activities authorized pursuant to the provisions of
article three, chapter twenty-two of this code or article two,
chapter twenty-two-a of this code.
(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 provided by or through 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, auguring, tunnelling,
moleing, scraping, cable or pipe plowing and driving, wrecking,
razing, rendering, moving or removing any structure or mass of
material, but does not include underground or surface mining
operations or related activities or the tilling of soil for
agricultural purposes or for domestic gardening. Further, for
purposes of this article, the terms "excavate" and "excavation"
do not include routine maintenance of paved public roads or
highways by employees of state, county or municipal entities or
authorities which:
(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 as authorized by this article.
(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 subsection (1) of this
section.
(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, owned by a utility and regulated by the public service
commission, which is used in the transportation or distribution
of gas, oil or a hazardous liquid; any underground pipeline
facility, owned by a company subject to the jurisdiction of the
federal energy regulatory commission, which is 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 or steam line; 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; and 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" does not include underground or surface coal mine
operations.
(m) "Workday" 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 privately owned public water utility regulated by the
public service commission, 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. Privately owned public water utilities regulated by
the public service commission, 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 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 may not prevent the
excavator from proceeding but shall bar the operator from
recovery of any costs associated with damage to its underground
facilities resulting from such failure, except for damage caused
by the willful or intentional act of the excavator.
(f) Notwithstanding the provisions of subsection (e) of this
section, 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 or her right
to recover, if any, determined by common law, if the operator
responded to one-call notification in a timely manner, but was
unable to accurately locate lines because such lines were nonmetallic and had no locating wire or other marker.
§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 operated on a not-for-profit basis but may be operated
by any one or more of the following:
(1) A person who operates underground facilities;
(2) A private contractor;
(3) A state or local government agency; or
(4) A person who is otherwise eligible under state or
federal law to operate a one-call system.
(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 will
conduct 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-six, may
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, provided pursuant to the requirements
of 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 names 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 federal or state legal 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 the 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 legal
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, including hand digging, when
necessary;
(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 a person who
has failed to comply with any provision of this section, that
person is liable to the operator of the underground facility for
the total cost to repair the damage in an amount equal to that as
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
recovering costs solely for his or her own failure to comply with
subdivision (1), subsection (d) of said section, but shall have
his or her right to recover, if any, determined by common law, if
the conditions of subsection (f) of said section are met.
The liability of such person for such damage is not limited
by reason of this article.
(c) If any excavation or demolition causes damage to any
underground facilities owned by an operator who is not required
to be a member of a one-call system, and who is not a member of
such a system at the time of damage, the liability of the person
causing such damage shall be determined solely by applicable principles of common law.
(d) Nothing in this chapter may be construed to restrict or
expand the rights, duties and liabilities provided in common law
or by other provisions of this code of an operator who is not
required to be a member of a one-call system and who is not a
member of such a system.
§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 Type Identifying Color or Equivalent
(a) Electrical powerSafety Red
distribution and
transmission
(b) Municipal electricSafety Red
systems
(c) Gas distribution andHigh Visibility Safety Yellow
transmission
(d) Oil and petroleumHigh Visibility Safety Yellow
transmission
(e) Dangerous materials,High Visibility Safety Yellow
product lines, steam
lines
(f) Telephone and telegraphSafety Alert Orange
systems
(g) Police and fireSafety Alert Orange
communications
(h) Cable televisionSafety Alert Orange
(i) Water systemsSafety Precaution Blue
(j) Slurry systems Safety Precaution Blue
(k) Sewer systemsSafety Green
(l) Proposed excavationsWhite
§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 the person gives oral notification of the emergency work as
soon as reasonably practicable to the one-call system.
(b) During any emergency, excavation or demolition may begin
immediately: Provided, That reasonable precautions are taken to
protect underground facilities: Provided, however, That such
precautions may 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; sovereign immunity.
(a) This article shall be liberally construed so as to
effectuate the public policy set forth in section one of this
article.
(b) Nothing in this article may be construed as imposing
liability upon a state agency from which the agency is otherwise
immune.