CHAPTER 455

FORMERLY

SENATE BILL NO. 411

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 8, TITLE 26 OF THE DELAWARE CODE RELATING TO UNDERGROUND UTILITY DAMAGE PREVENTION AND SAFETY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section I. Amend Chapter 8, Title 26 of the Delaware Code by deleting this Chapter in its entirety and inserting in its place a new Chapter 8 to read as follows:

"Chapter 8. UNDERGROUND UTILITY DAMAGE PREVENTION AND SAFETY

§801. PURPOSE: CITATION: CONSTRUCTION.

(a) For the purposes 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.

(a) This act shall be known and may be cited as the Underground
Utility Damage Prevention and Safety Act. This chapter shall be liberally construed and applied to promote its underlying purposes and policies.

§802 DEFINITIONS.

As used in this chapter, unless the context otherwise requires:

(1) "Approved Notification Center" shall mean an organization

identified by section 807 of this chapter and which complies with the requirements of section 807 of this chapter and is otherwise operated in accordance with the Federal Pipeline Safety Regulations codified at 49 C.F.R. CH. 1., section 198.39;

(2) "Damage" shall mean, but is not limited to:

a. The complete or partial destruction, dislocation or weakening of structure or lateral support of a utility line, or

a. The complete or partial penetration or destruction of any
utility line, appurtenance, protective coating, covering, housing or other protective device, or

a. The complete or partial severance of any utility line;

(3) "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;

(4) "Designer" shall mean any architect, engineer or other person,

acting either as an employer or employee, who prepares a drawing for a construction or other project which requires excavation or demolition;

(5) "Emergency" shall mean any condition constituting a clear and

present danger to life, health or property by reason of escaping gas or petroleum products, 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;

(6) "Excavate" or "excavation" shall mean any operation in which

earth, rock or other material in the ground is moved, removed or otherwise displaced or disturbed by means of any tools, equipment or explosives and

includes, without limitation, grading, trenching, digging, dredging,

ditching, drilling, augering, tunnelling, boring, backfilling, post pounding, driving objects into the ground, installation of form pins, hammering, scraping, cable or pipe plowing or driving, but does not include the surface cultivation of the soil for agricultural purposes, such as tilling, or patch—type paving where the same, including cutback, does not exceed 12 inches in depth measured from the surface of the pavement being patched;

(7) "EXCAVATOR" shall mean any person, including those acting either as an employer or employee, intending to perform or performing excavation or demolition work.

(1) "Operator" shall mean any person who furnishes or transports
materials or services by means of a utility line;

(1) "Person" shall mean any individual, firm, joint venture,

partnership, corporation, association, municipality, other political subdivision, state or federal governmental unit, department, or agency, state cooperative association, joint stock association and shall include any assignee, trustee, receiver or personal representative thereof.

(2) "UNDERGROUND PIPELINE FACILITY OPERATOR" shall mean an operator of a buried pipeline facility used in the transportation of gas, such as propane and natural gas, subject to the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. section 1671 et. seq.), or used in the transportation of hazardous liquid subject to the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. section 2001 et. seq.); Underground Pipeline Facility Operators include, without limitation, natural gas, propane gas, master meter, LP gas, and interstate and intrastate gas and liquid distribution facility operators as defined by these Acts.

(1) "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, cable television, telephonic or telegraphic communications, electric energy, oil, petroleum products, gas or other substances, and shall include, but not be limited to, pipes, sewers, conduits, cables, fiber optic conductors, valves, lines, wires, manholes, vaults, attachments and those portions of poles, pylons or other supports below ground or submerged.

(2) "Working day" shall mean every day, except Saturday, Sunday and State, Federal and recognized operator holidays.

§803. DUTIES OF OPERATOR.

It shall be duty of each operator:

(1) To participate in the Approved Notification Center;

(2) To give written notice to such Approved Notification Center which shall state:

a. The name of the operator;

b. The location of the operator's lines; and

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

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

(4) To respond to requests from an excavator or operator 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 2 working days after receipt of such requests;

(5) To inform excavators or operators who identify the site of

excavation or demolition, or proposed excavation or demolition, not more than 2 working days after receipt of a request therefor, of the following:

a. If it is determined by an operator that a proposed excavation or demolition is planned within 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 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, the type of temporary marking provided and how to identify the markings. In the case of
extraordinary circumstances, if the operator cannot mark the location within 2 working days, the operator shall, upon making such
determination, 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;

b. The cooperative steps which the operator may take, either at or off the excavation or demolition site, to assist him in avoiding damage to fits lines;

c. Suggestions for procedures that might be followed in avoiding such damage;

a. If the operator has no utility line within 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;

a. 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 Oil and petroleum products distribution and transmission - High visibility safety yellow

Dangerous materials, product lines, steam 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;

(6) To respond to requests from designers who identify the site of excavation or demolition, for information as to the approximate location and type of the operator's utility lines in the area within 15 working days of receipt of a request therefor;

(7) To inform designers who identify the site of excavation or demolition, or proposed excavation or demolition, not more than 15 working days after receipt of a request therefor of the information set forth at subsection (5) of this section.

(8) Upon receipt of a request pursuant to subsections (4), (5), (6) and/or (7) of this section to assign such request an identifying number (which may be the same as the number assigned by the Approved Notification Center in accordance with section 807(b)(5) of this chapter), inform the requestor of such number and maintain a record showing the name, address and telephone number of the requestor, the site to which the request pertains and the identifying number assigned to the request.

§804. ADDITIONAL DUTIES OF OPERATORS WHO ARE ALSO UNDERGROUND

PIPEIINE FACILITY OPERATORS.

It shall be the duty of each underground pipeline facility operator to:

(1) Participate in the Approved Notification Center.

(2) Provide as follows for inspection of pipelines that such operator has reason to believe could be damaged by excavation activities:

a. The inspection must be done as frequently as necessary during and after the excavation activities to verify the integrity of the pipeline; and,

b. In case of blasting, any inspection must include leakage surveys.

§805. DUTIES OF DESIGNERS.

It shall be the duty of each designer:

(1) To contact the Approved Notification Center and obtain the
identity of operators whose facilities are listed, as required by section 803 of this chapter, in the area of the proposed excavation or demolition;

(1) To obtain the information prescribed in subsection (6) or (7) of §803 of this chapter from each operator identified as required by subsection (2) of §803;

(1) To show upon the drawing the type of each line, derived pursuant to the request made as required in subsection (2) of this section, the name of the operator and telephone number of the Approved Notification Center, and instructions to "Notify the Approved Notification Center not less than two working days, but no more than 10 working days, prior to the excavation or demolition activities".

§806. DUTIES OF EXCAVATORS

(a) Prior to undertaking any excavation or demolition activities, it shall be the duty of each excavator to:

(1) Ascertain the telephone number of the Approved Notification Center;

(2) Notify the Approved Notification Center not less than 2 working days, but no more than 10 working days, prior to the day of the commencement of such work of the following:

a. the name of the person notifying the Approved Notification
Center;

a. the name, address and telephone number of the excavator;

b. the specific location, starting date and description of the intended excavation or demolition activity.

(3) Ascertain the location and type of utility lines, and information prescribed by the subsection (5) of section 803 of this chapter and the identifying number(s) assigned (pursuant to section 807 of this chapter) by the Approved Notification Center in response to the notice prescribed in subsection (2) of this section; Inform each person employed by him or her at the site of such work of the information obtained pursuant to subsection (3) of this section;

(4) Maintain in a prudent and careful manner all markings provided by operators in accordance with the provisions of section 803 of this chapter and, in the event of the obliteration, destruction, or removal of the markings, the excavator shall notify the Approved Notification Center of the need for remarking of utility line by the operators;

(5) Establish and maintain a mutually agreeable schedule of required utility locating with each involved operator to insure that the purpose of this chapter is met whenever the intended excavation or demolition will occur at multiple locations, on various dates, on a construction site or public works project with a duration in excess of 20 working days. Proper establishment and prudent, careful, compliance with such a schedule, after initial notice as required under subsection (2) of this section, shall be considered as notice required in subsection (2) for the balance of the construction project;

(6) Excavate prudently and carefully and to take all reasonable steps necessary to properly protect, support and backfill underground utility
lines. This protection shall include but may not be limited to hand
digging, within the limits of the planned excavation or demolition, starting two feet of either side of the extremities of the underground utility line for other than parallel type excavations and at reasonable distances along the line of excavation for parallel type excavations;

(7) 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 or demolition work;

(1) Alert immediately the occupants of any premise as to any emergency that the excavator may create or discover at or near such premises.

(b) The requirements of subsection (1) through (5) of this section shall not apply to an excavator performing excavation or demolition work in any emergency. However, excavators performing excavation or demolition activities in an emergency shall notify the Approved Notification Center at the earliest practicable moment of the information prescribed in subsection (a)(2) of this section.

§807. APPROVED NOTIFICATION CENTER.

(a) The Approved Notification Center shall be Utilities Service Protection of Delmarva, Inc.

(b) The approved Notification Center shall:

(1) Receive and record information prescribed by section 803 of this chapter regarding the location of operators' utility lines within the state;

(2) Receive and record information prescribed by section 805 and 806 of this chapter regarding notice by excavators or designers of intended excavation or demolition activity;

(3) Promptly transmit to the operators identified in accordance with section 803 of this chapter, the information received as prescribed by section (2) of this section;

(1) Maintain records of each notice received in accordance with subsection (2) of this section for a period of not less than 6 years;

(1) Assign an identifying number to the notice prescribed in subsection (2) of this section;

(1) Notify those persons giving notice as prescribed by section 806 of this chapter, of the names of participating operators to whom the notice will be transmitted as prescribed by subsection (3) of this section and Approved Notification Center's identifying number assigned (pursuant to subsection (5) of this section) to the notice prescribed in subsection (2) of this section;

(7) Provide a toll-free telephone number for use by any person
providing notice as prescribed by sections 803, 805 and 806 of this chapter;

(1) Identify persons who normally engage in excavation activities in this state;

(1) Notify the persons identified in subsections (7) and (8) of this section and the general public as often as necessary to make them aware of :

a. the existence of the Approved Notification Center;

b. the purpose and general requirements of this chapter;

c. how to learn the location of utility lines before excavation or demolition activities are begun; and

a. the toll-free telephone number provided as required by
subsection (7) of this section.

§808. EXEMPTIONS.

No penalties provided for in section 810 of this chapter shall apply to any excavation or demolition done by the owner of a private residence when such excavation or demolition is made entirely on the land on which the private residence is situated and provided there is no encroachment on any operator's rights-of-way or easement. However, this exemption shall have no effect on the civil liability of such private residence owner pursuant to section 811 of this chapter.

§1. 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, or has otherwise violated, is about to violate, or is violating any provision of this chapter, the Attorney General or any operator or owner of said utility line may institute an action for the purpose of having such excavation or demolition stopped or prevented, either by mandatory or prohibitive injunction, mandamus, or for other relief including interim equitable relief and punitive damages, 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's or respondent's principal place of business is located. 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. The court may join as parties any and all persons necessary to make its judgment or processes effective.

§1. PENALTIES.

It is unlawful and a misdemeanor for any person to do any act forbidden, or fail to perform an act required by this chapter.

(a) Except as provided in subsection (b) of this section, whoever, by action or inaction, violates a provision of this Chapter shall, for the first offense, be fined not less than $100 nor more than $500. For each subsequent like offense, such person shall be fined not less than $200 nor more than $1,000 for each violation.

(b) Operators of underground pipeline facilities, excavators, and the Approved Notification Center shall, upon violation of any applicable requirements of 49 C.F.R. part 198, Subpart C, be subject to civil penalties not to exceed ten thousand dollars ($10,000) for each violation for each day that the violation persists, except that the maximum civil penalty shall not exceed five hundred thousand dollars ($500,000) for any related service of violations. In determining the amount of the fine, the court shall consider the nature, circumstances, and gravity of the violation and, with respect to the person found to have committed the violation, the degree of culpability, any history of prior violations, the effect on ability to continue to do business, any good faith in attempting to achieve compliance, ability to pay the fine, and such other matters as justice may require.

§811. CIVIL LIABILITY.

(a) Obtaining information as required by this chapter 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 by operators pursuant to section 803 of this chapter is not provided in accordance with the terms thereof, any person damaging or injuring underground facilities of such operator shall not be liable for such damage or injury except on proof of negligence.

§812. CONVICTION NOT ADMISSIBLE.

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

§813. EFFECTIVE DATE.

The effective date of this Chapter shall be January 1, 1995."

Approved July 22, 1994.