§ 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.
(b) This subchapter 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 § 807 of this title and which complies with the requirements of § 807 of this title and is otherwise operated in accordance with the Federal Pipeline Safety Regulations codified at 49 C.F.R. Ch. 1, § 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
b. The complete or partial penetration or destruction on any utility line, appurtenance, protective coating, covering, housing or other protective device, or
c. 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) “DNREC Regulated Site” shall mean any parcel of land or portion thereof for which a final permit, remediation plan, institutional or administrative control, use restriction or similar limitation is imposed under the authority granted to the Department of Natural Resources and Environmental Control under Title 7 and for which due process opportunities have been provided.
(6) “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.
(7) “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.
(8) “Excavator” shall mean any person, including those acting either as an employer or employee, intending to perform or performing excavation or demolition work.
(9) “Operator” shall mean any person who furnishes or transports materials or services by means of a utility line.
(10) “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.
(11) “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. § 1671 et seq.) [repealed by Act July 5, 1994, P.L. 103-272], or used in the transportation of hazardous liquid subject to the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. § 2001 et seq.) [repealed by Act July 5, 1994, P.L. 103-272]; 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.
(12) “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.
(13) “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
c. 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 in avoiding damage to its lines;
c. Suggestions for procedures that might be followed in avoiding such damage;
d. 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;
e. 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 paragraph (5) of this section.
(8) Upon receipt of a request pursuant to paragraphs (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 § 807(b)(5) of this title), 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.
(9) Except as provided in paragraph (10) of this section, all operators shall provide notification to the Public Service Commission within 15 working days, or as soon as practicable thereafter if notification cannot be provided within 15 days, of any facilities damage caused by excavation which results in damage as defined in § 802(2)c. of this title exceeding $3,000. Notification shall not be required for facilities damage to abandoned lines. The Public Service Commission may notify the Attorney General’s office of such damage.
(10) All underground pipeline facility operators shall provide notification to the Public Service Commission as soon as practicable of any facilities damage caused by excavation which results in damage as defined in § 802(2) of this title to gas distribution and transmission lines, oil and petroleum products distribution and transmission lines, or dangerous materials, product lines or steam lines.
§ 804 Additional duties of operators who are also underground pipeline 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 § 803 of this title, in the area of the proposed excavation or demolition;
(2) To obtain the information prescribed in § 803(6) or (7) of this title from each operator identified as required by § 803(2) of this title;
(3) To show upon the drawing the type of each line, derived pursuant to the request made as required in paragraph (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 2 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;
b. The name, address and telephone number of the excavator;
c. 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 § 803(5) of this title and the identifying number or numbers assigned (pursuant to § 807 of this title) by the approved notification center in response to the notice prescribed in paragraph (a)(2) of this section;
(4) Inform each person employed by the excavator at the site of such work of the information obtained pursuant to paragraph (a)(3) of this section;
(5) Maintain in a prudent and careful manner all markings provided by operators in accordance with the provisions of § 803 of this title 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;
(6) 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 paragraph (a)(2) of this section, shall be considered as notice required in paragraph (a)(2) of this section for the balance of the construction project;
(7) 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 2 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;
(8) 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;
(9) 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 paragraphs (a)(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 paragraph (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 § 803 of this title regarding the location of operators’ utility lines within the State;
(2) Receive and record information prescribed by §§ 805 and 806 of this title regarding notice by excavators or designers of intended excavation or demolition activity;
(3) Promptly transmit to the operators identified in accordance with § 803 of this title, the information received as prescribed by paragraph (b)(2) of this section;
(4) Maintain records of each notice received in accordance with paragraph (b)(2) of this section for a period of not less than 6 years;
(5) Assign an identifying number to the notice prescribed in paragraph (b)(2) of this section;
(6) Notify those persons giving notice as prescribed by § 806 of this title, of the names of participating operators to whom the notice will be transmitted as prescribed by paragraph (b)(3) of this section and approved notification center’s identifying number assigned (pursuant to paragraph (b)(5) of this section) to the notice prescribed in paragraph (b)(2) of this section;
(7) Provide a toll-free telephone number for use by any person providing notice as prescribed by §§ 803, 805 and 806 of this title;
(8) Identify persons who normally engage in excavation activities in this State;
(9) Notify the persons identified in paragraphs (b)(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
d. The toll-free telephone number provided as required by paragraph (b)(7) of this section.
(10) Promptly transmit to the appropriate contact of DNREC the information contained in the notice by excavators or designers of intended excavation or demolition activity as to any DNREC Regulated Site.
§ 808 Exemptions.
No penalties provided for in § 810 of this title 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 § 811 of this title.
§ 809 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.
§ 810 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.
(1) Except as provided in paragraph (2) 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.
(2) 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 [49 C.F.R. § 198.31 et seq.], be subject to civil penalties not to exceed $10,000 for each violation for each day that the violation persists, except that the maximum civil penalty shall not exceed $500,000 for any related series 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.
(3) The Attorney General and the Public Service Commission shall review each notification of failure to perform an act required by this chapter or damage to facilities to determine any violations by operators, excavators or the notification center. Pursuant to that review, the Attorney General or the Public Service Commission may impose penalties appropriate to the circumstances and gravity of the violation according to the guidelines in paragraphs (1) and (2) of this section above.
(4) Any civil penalty imposed pursuant to this subchapter shall not prevent any party from obtaining civil damages for personal injury or property damage in private actions.
§ 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 § 803 of this title 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.
(c) Failure by DNREC to notify or otherwise contact an excavator or designer prior to a properly noticed excavation or demolition at any DNREC Regulated Site shall not relieve such excavator or designer from complying with all applicable federal, state, county or municipal laws or regulations, nor shall it create any liability in DNREC for any damage or injury resulting from any such excavation or demolition.
§ 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.