CHAPTER 148

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR HOUSE BILL NO. 137

AS AMENDED BY HOUSE AMENDMENTS NOS. 1 AND 2

AN ACT TO AMEND TITLE 26 OF THE DELAWARE CODE RELATING TO PUBLIC UTILITIES AND PROVIDING FOR AN UNDERGROUND UTILITY DAMAGE PREVENTION AND SAFETY ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. This Act shall be known and may be cited as the Underground Utility Damage Prevention and Safety Act.

Section 2. Amend Title 28 of the Delaware Code by adding thereto a new Chapter to be designated as Chapter 7, which new Chapter shall read as follows:

"CHAPTER 7. UNDERGROUND UTILITY DAMAGE PREVENTION AND SAFETY

S701. Purpose; construction

For the purpose of providing for the protection of the public health and safety, certain procedures are necessary to assure that persons performing excavation or demolition operations know, prior to commencing such operations, of the presence or location of underground utilities in the excavation or demolition area. Certain precautions must be taken to avoid injuries and damage to life, limb, and property, to avoid disruption and discontinuation of utility services to members of the public, and to promote safe operations during excavation and demolition. This Chapter shall be liberally construed and applied to promote its underlying purposes and policies.

S702. Definitions As used in this Chapter, unless the context otherwise requires:

(a) 'Contractor' shall mean any person, either as an employer or employee, performing excavation or demolition work.

(b) 'Damage' shall mean, but is not limited to:

(1) the complete or partial destruction, dislocation, or weakening of structural or lateral support of a utility line, or

(2) the complete or partial penetration or destruction of any utility line, appurtenance, protective coating, covering, housing, or other protective device, or

(3) the complete or partial severance of any utility line.

(c) 'Demolish' or 'demolition' shall mean 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 capable of damaging underground or submarine utility lines.

(d) 'Designer' shall mean any architect, engineer, or other person, this either as an employer or employee, who prepares a drawing for a construction or other project which requires excavation or demolition.

exposed or broken wires, other breaks or defects in an operator's utility line, or by reason of any disaster of artificial or natural causes.

(f) 'Excavate' or 'excavation' shall mean 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, dredging, ditching, drilling, augering, tunnelling, scraping, cable or pipe plowing, driving, but not including the tilling of, the soil for agricultural purposes, or patch-type paving where same, including cutback does not exceed twelve inches in depth measured from the surface of the pavement being patched.

(g) 'Notification center' shall mean any organization among whose purposes is the dissemination to one or more operators, of the notification of planned excavation or demolition in a specified area.

(h) 'Operator' shall mean any person who furnishes or transports materials or services by means of a utility line

(I) 'Person' shall mean any individual, firm, joint venture, partnership, corporation, association, municipality, other political subdivision, governmental unit, department or agency, and shall include any trustee, receiver, or personal representative thereof, provided, however, that nothing in this section shall apply to any excavation or demolition done by the owner of a private residence when said excavation or demolition is made entirely on the land on which the private residence is situated, provided there Is no encroachment on any operators' right of-way and/or easements.

()) 'Utility line' shall mean any item of personal property which shall be buried or placed below ground or submerged for use in connection with the storage or conveyance of water, sewage, electronic, telephonic, or telegraphic communications, electronic energy, oil, petroleum products, gas, or other substances, and shall include, but not be limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments, and those portions of poles, pylons, or other supports below ground or submerged.

(k) 'Working day' shall mean every day, except Saturday, Sunday, and national and legal State holidays.

§703. Operators; duties

It shall be the duty of each operator:

(a) To give written notice to the Recorder of Deeds of each county in which its lines are located which shall state:

(I) the name of the operator;

(2) the names of the county's political subdivisions in which its lines are located; and

(3) the operator's office address (street, number, and political subdivision) and the telephone number to which inquiries may be directed as to the location of such lines.

(b) To give like written notice within five (5) working days after any of the matters stated in the last previous notice shall have changed.

(c) To accompany each such written notice with a filing fee of five dollars ($5.00) payable to and for the use of the county.

(d) To respond to requests from a contractor, operator, or designer who identifies the site of excavation or demolition, or proposed excavation or demolition, for information as to the approximate location and type of the operator's utility lines in the area, not more than two (2) working days after receipt of such request.

(e) To inform contractors, operators, or designers who identify the site of excavation or demolition, or proposed excavation or demolition, not more than two (2) working days after receipt of a request therefor, the following:

(1) if it is determined by an operator that a proposed excavation or demolition is planned within five (5) feet of a utility line as measured in the horizontal plane and that the utility line may be damaged, the operator shall notify the person who proposes to excavate or demolish and shall physically mark the horizontal location of the utility line within 18 inches of the utility line on the ground by means of stakes, paint, or other suitable means within two (2) working days after the request. The operator shall also notify the person who proposes to excavate or demolish as to the size of the utility line and its depth if known. In the case of extraordinary circumstances, if the operator cannot mark the location within two (2) working days, the operator shall notify the person who proposes to excavate or demolish and shall, in addition, notify the person of the date and time when the location will be marked;

(2) the cooperative steps which the operator may take, either at or off the excavation or demolition site, to assist him in avoiding damage to its lines;

(3) suggestions for procedures that might be followed in avoiding such damage;

(4) if the operator has no utility line within five (5) feet of the proposed excavation or demolition as measured in the horizontal plane and if a proposed excavation or demolition by blasting is not planned in such proximity to the operator's utility lines that the utility lines may be damaged, the operator shall advise the person who proposes to excavate or demolish that marking is unnecessary and that the person may therefore begin the excavation or demolition;

(5) in marking the approximate location of utility lines, the operator shall follow the color coding described herein:

Electric Power Distribution and Transmission-Safety Red Municipal Electric Systems - Safety Red

Gas Distribution and Transmission - High Visibility Safety Yellow 011 and Petroleum Products Distribution and Transmission - High Visibility Safety Yellow

Dangerous Materials, Product Lines, Stream Lines - High Visibility Safety Yellow

Telephone and Telegraph Systems - Safety Alert Orange

Police and Fire Communications - Safety Alert Orange

Cable Television - Safety Alert Orange

Water Systems - Safety Precaution Blue

Slurry Systems - Safety Precaution Blue

Sewer Systems - Safety Green

(f) Upon receipt of a request pursuant to subsections (d) and (e), to assign such request a serial number, inform the requestor of such number, and to maintain a register showing the name, address, and telephone number of the requestor, the site to which the request pertains, and the assigned serial number.

§704. Recorder of Deeds; duties

It shall be the duty of the Recorder of Deeds in each of the respective counties:

(a) To ascertain from the notices received pursuant to subsection (a) of 5703 the identity of all operators having lines in each political subdivision of his respective county and to maintain for each political subdivision a listing showing, as to such operators, the information pres cribed by said 5703.

(b) To make such lists available for public inspection without charge and to provide a copy of the list of any political subdivsion to anyone who requests it for a copy fee of one dollar ($1.00) payable to and for the use of the county.

5155. Designers; duties

It shall be the duty of each designers

(a) To inspect or obtain a copy of the list of operators maintained by the Recorder of Deeds as required by §704.

(b) To obtain the information prescribed in 5703, subsection (d), from each operator's office designated on the list of operators maintained by the Recorder of Deeds as required by 5704.

(c) To show upon the drawing the type of each line, derived pursuant to the request made as required in subsection (b) of this section, the name of the operator and telephone number as shown on the list. referred to in subsection (a) of this section.

Additional Duties of Contractors, Operators, and Designers

in addition to the duties otherwise specified in this Chapter, it shall be the duty of each contractor, operator, or designer:

(a) To ascertain the location and type of utility lines at such site, either by inspection of the designer's drawing made pursuant to 5705, or if there be no such drawing, then by the same manner as that prescribed for a designer in subsections (a) and (b) of §705.

(b) To request from each such operator's office designated on the list of operators obtained pursuant to subsection (a) of 5705 the Information prescribed by subsection (e) of §703, not less than two (2) working days, but no more than ten (10) working days, prior to the day of the commencement of such work.

(a) To inform each person employed by him at the site of such work of the information obtained by him pursuant to subsections (a) and (b) of this section.

(a) To report immediately to the operator any break in, or leak on, its utility lines, any dent, gouge, groove, or other damage to such lines or to the coating or cathodic protection made or discovered in the course of the excavation of demolition work.

(a) To alert immediately the occupants of premises as to any emergency that he may create or discover at or near such premises.

(a) The requirement of subsections (a), (b), and (c) shall not apply to an operator or contractor performing excavation or demolition work in an emergency.

§707. Notification Center

Operators may form and operate an organization providing for the receipt of excavation and demolition operations information in accordance with the provisions of this Chapter. An organization providing such services on behalf of operators having utility lines within the State of Delaware shall file with the Recorder of Deeds of each county the name, telephone number, and address of the organization, a description of the geographical area served by the organization, and a list of the names and addresses of each operator receiving such service from the organization.\

§708. Injunction; mandamus

Whenever it appears that any person has engaged in, is engaging in, or is about to engage in excavation or demolition In a manner contrary to safe practices, thereby posing a threat, or potential threat, of injury or damage to life, limb, or property, not necessarily limited to utility lines, the Attorney General or any operator or owner of said utility line may institute an action, either by injunction or mandamus, in a court of competent jurisdiction in the county In which the excavation or demolition has occurred, is occurring, or Is about to occur, or in which the defendant, respondent, has his or its principle place of business. The

procedure for all such proceedings shall be as provided in the rules of procedure in the court where said action is commenced or as established by the usual practice and procedure in said court.

S709. Violations; penalties

It is unlawful and a misdemeanor for any person to do any act forbidden or fail to perform any act required in this Chapter. Whoever violates a provision of this Chapter shall, for the first offense, be fined not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00). For each subsequent like offense, such person shall be fined not less than two hundred dollars ($200.00) nor more than one thousand dollars ($1,000.00). Before being punishable as such, a subsequent offense shall have been committed within twelve (12) months after the commission of the immediately preceding offense.

S710. Conviction not Evidence

A conviction under this section, even when obtained pursuant to a guilty plea, shall not be admissible in any civil proceedings involving personal injury, wrongful death or property damage.

S7ll. Compliance not Precluding Civil Liability

(a) Obtaining information as required by this Act does not excuse any person making any excavation or demolition from doing so in a careful and

prudent manner, nor shall it excuse any person from liability for any damage or injury resulting from the excavation or demolition."

(b) If the information required to be provided pursuant to this Act is not provided in accordance with the terms hereof, any person damaging or injuring underground facilities shall not be liable for such damage or injury except on proof of negligence."

Section 3. If any provision of this Act, or the applicability thereof, to any person or circumstances is held unconstitutional or otherwise invalid, such unconstitutionality or invalidity in the application of such provision to other persons or circumstances shall not affect any other provision or application of this Act, and to that end the provisions of this Act are declared to be severable.

Section 4. This Act shall not be deemed to amend or repeal any other law or any local ordinance enacted pursuant to law concerning the same subject matter, it being the legislative intent that both this Act and any such other law or local ordinance shall have full force and effect.

Section 5. This Act shall be effective one hundred twenty (120) days after signature by the Governor.

Approved July 12, 1979.