ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 439
(By Senators McKenzie and Bowman)
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[Originating in the Committee on the Judiciary;
reported February 17, 2006.]
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A BILL to amend and reenact §24C-1-3 and §24C-1-5 of the Code of
West Virginia, 1931, as amended, all relating to duties of
operators of an underground facility; strengthening the one-
call system requirements for persons excavating or performing
demolition work in the vicinity of underground facilities by
increasing the number of emergency response agencies to be
notified in the event of resulting damage; defining
emergencies; and providing criminal penalties for violating
certain duties and responsibilities imposed in said article.
Be it enacted by the Legislature of West Virginia:
That §24C-1-3 and §24C-1-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. ONE-CALL SYSTEM.
§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
; or
(3) Notify the excavator that the operator went to the site
but did not leave a temporary marking of the location of
underground facilities because there are no lines in the area of
the proposed excavation or demolition.
(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 said
subsection 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-1-5. Duties and responsibilities of excavators; failure of
excavator to comply; civil penalties.
(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) (i) To report immediately to the appropriate medical,
law-enforcement and fire prevention authorities any break or leak
in underground facilities, or any dent, gouge, groove or other
damage to such facilities, made or in the course of the excavation
or demolition which creates an "emergency' as defined in
subdivision (1), subsection (c), section two of this article. For
purposes of this subdivision, an excavator calling the "911"
emergency telephone number satisfies this requirement; or
(ii) To notify the one-call system, within twenty-four hours,
of any break or leak in underground facilities, or any dent, gouge,
groove or other damage to such facilities, made or in the course of
the excavation or demolition which does not create an "emergency"
as defined in subdivision (1), subsection (c), section two of this
article.
(D) (E) 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) (F) To protect and preserve markers, stakes and other
designations identifying the location of underground facilities at
the work site; and
(F) (G) 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) If any excavation or demolition causes damage to any other
person or property, the liability of the person causing damage
shall be determined solely by applicable principles of common law.
(e) Any person who fails to notify the one-call system prior
to performing any excavation or demolition, or fails to follow the
reporting provisions of this section, and who knowingly and
willfully violates the safety provisions of this section causing
death or serious bodily injury to a person, shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than five thousand dollars.
(d) (f) 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.
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