Senate Bill No. 439
(By Senators McKenzie and Bowman)
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[Introduced January 30, 2006; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §24C-1-5 of the Code of West Virginia,
1931, as amended, relating to strengthening the one-call
system requirements for persons excavating or performing
demolition work in the vicinity of pipelines by increasing the
number of emergency response agencies to be notified in the
event of resulting damage; and strengthening penalties for
violations of these duties.
Be it enacted by the Legislature of West Virginia:
That §24C-1-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. ONE-CALL SYSTEM.
§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 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. For purposes of this subdivision, an excavator
calling the "911" emergency telephone number satisfies this
requirement.
(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 such damage
shall be determined solely by applicable principles of common law.
(e) In addition to any civil damages due to an operator as of
the underground facility as mentioned in subsections (b) and (c) of
this section, an excavator who causes damage to underground
facilities and is found to have violated the safety and reporting
duties of subsection (a) of this section is guilty of a felony and,
in a correctional facility shall be fined up to two hundred fifty
thousand dollars, imprisoned not less than one nor more than five
years, or both.
(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.
NOTE: The purpose of this bill is to strengthen the one-call
system requirements for persons excavating or performing demolition
work in the vicinity of pipelines by increasing the number of emergency response agencies to be notified in the event of
resulting damage; and to strengthen penalties for violations of
these duties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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