H. B. 2649
(By Delegate Staton
Introduced March 19, 1993; 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; definitions;
establishing duties and responsibilities of operators of
underground facilities; establishing a one-call system;
establishing duties and responsibilities of a one-call
system; and establishing duties and responsibilities of
excavators who engage in excavation or demolition work;
providing for temporary marking of underground facilities;
and providing for exceptions due to emergencies.
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) "Country road maps" means the general highway maps
prepared by the West Virginia department of transportation,
division of highways.
(b) "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.
(c) "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.
(d) "Emergency" means:
(l) 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 anunderground facility; or
(2) A condition that requires immediate correction to
assure continuity of service which is rendered by use of an
underground facility.
(e) "Equipment operator" means any individual in physical
control of powered equipment or explosives when being used to
perform excavation work or demolition work.
(f) "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 the soil for
agricultural purposes or for domestic gardening. "Excavate" or
"excavation" shall also 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.
(g) "Excavator" means any person intending to engage or
engaged in excavation or demolition work.
(h) "Member" means a member of a one-call system.
(i) "One-Call System" means a communication system that
receives notification from excavators of intended excavation workand prepares and transmits such notification to operators of
underground facilities in accordance with this article.
(j) "Operator" means any person who owns or operates an
underground facility used to provide a service or to transport a
product.
(k) "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.
(1) "Powered Equipment" means any equipment energized by an
engine, motor or hydraulic, pneumatic or electrical device and
used in excavation or demolition work.
(m) "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 definedin the federal Natural Gas and Hazardous Liquid Pipeline Safety
Acts.
(n) "Work day" means any day except Saturday, Sunday or a
federal or state legal holiday.
(o) "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 asreasonably practicable, but not to exceed twelve months, 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 the operator 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.
§24C-1-4. Duties and responsibilities of a one-call system.
A one-call system qualifies to operate under this article if
it complies with each of the following requirements:
(a) It is operated by 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 orfederal law to operate a one-call system:
(b) It is a nonprofit, membership corporation;
(c) It is 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-three shall not be required to be so certified. The
public service commission shall certify a one-call system where
the public interest so requires;
(d) It receives and records information from excavators
about intended excavation or demolition activities;
(e) It promptly transmits to its affected members the
information received from excavators about intended excavation or
demolition;
(f) It maintains a record of each notice of intent to
engage in excavation or demolition in accordance with section
five of this article;
(g) Upon receipt of notification of intended excavation or
demolition from an excavator, it informs the person making such
notification of the name of all members having underground
facilities in the vicinity of the intended work site; and
(h) It assigns a serial number for each notification
received from an excavator and provides 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 workshall:
(1) Obtain from the one-call system the information
prescribed in subsection (b) of section three of this article for
each operator having underground facilities in the vicinity of
the intended work site:
(2) 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;
(3) 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
(4) Instruct each such equipment operator involved in the
intended work:
(A) To perform all excavation or demolition work in such amanner 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 undergroundfacility 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. 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 system
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; severability; constitutional immunity.
(a) This article shall be liberally construed so as to
effectuate the declaration of public policy set forth in this
article. If any section, subsection, subdivision, subparagraph,
sentence or clause of this article is adjudged to be
unconstitutional or invalid, such invalidation shall not affectthe validity of the remaining portions of this article, and, to
this end, the provisions of this article are hereby declared to
be severable.
(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 an
underground facilities damage prevention program in this state;
to require membership in the program by operators of such
facilities; and to impose duties upon said operators and persons
engaging in excavation or demolition work in the state.
This chapter is new; therefore, strike-throughs and
underscoring are omitted.