AN ACT REWRITING THE LAWS REGULATING UNDERGROUND UTILITY DAMAGE PREVENTION. Enacted August 23, 2013. Effective October 1, 2014.
Summary date: Sep 3 2013 - More information
Summary date: Jul 16 2013 - More information
Senate committee substitute to the 5th edition makes the following changes.
Amends the exemptions in GS 87-124 to provide that the notice requirements also do not apply to an excavation or demolition for agricultural purposes performed on property that does not encroach on any operator's right of way, easement, or permitted use, and to the excavation of a grave space, the installation of a monument or memorial at a grave space, or an excavation related to the placement of a temporary structure or tent by a cemetery that does not encroach on any operator's right of way, easement, or permitted use. Removes an excavation or demolition performed by a farmer on the farmer's own property from the list of exemptions. Amends the exemption for an excavation or demolition performed by the owners of a single-family residential property on the owner's own land to no longer require that the excavation or demolition be less than 10 inches deep.
Amends GS 87-129 to provide that if a violation of the Article was the result of willful or wanton negligence or intentional conduct (was, result of gross negligence or willful or wanton conduct), the penalty is $2,500, required training, and required education.
Summary date: Jul 2 2013 - More information
Senate committee substitute to the 5th edition changes the number of proposed GS 87-122.1 to GS 87-123 and makes conforming changes to the statute numbers.
Summary date: Jun 20 2013 - More information
House amendment to the 3rd edition makes the following changes.
Amends GS 87-120(b) to clarify that before adopting a method of determining the cost allocation for operating the Notification Center, the board of directors must publish the proposed method of cost allocation to the member operators, and the proposed allocation method must be approved by the member operators.
Enacts new GS 87-122.1 to require every person who is an excavator, locator, or operator due to engaging in these activities in the course of a business or trade to provide education and training to employees and provide documentation of such. Specifies what must be included in the training. Provides that the duty to provide education and training does not apply when the excavator, locator, or operator retains an independent contractor; requires independent contractors to provide employee training. Requires that excavation be conducted in accordance with OSHA Standard 1926 and under the direction of a competent person. Requires locators to be properly trained, with training documented.
Amends GS 87-123 to exclude from the notice requirements an excavation or demolition that involves tilling of soil for agricultural purposes (was, excavation or demolition that involves the tilling or plowing of soil less than 12 inches in depth for agricultural purposes). Also adds an exclusion from the notice requirements for an excavation or demolition performed by a farmer on his or her own property that does not encroach on any operator's right of way, easement, or permitted use.
Amends GS 87-128(b) to make clarifying changes and to add that the parties are responsible for selection and contracting with the arbitrator. Amends GS 87-128(c) to rquire that the Utilities Commission order issued upon the completion of the arbitration process include assessing the costs of arbitration to the non-prevailing party (was, include an award of the costs of arbitration to the prevailing party).
Summary date: Jun 19 2013 - More information
House committee substitute to the 2nd edition makes the following changes.
Amends GS 87-117 to change the definition of APWA to the American Public Works Association or its successors (was, or its successor organization or entity). Amends the definition of locator to require that the individual also be trained, with documentation. Amends the definition of Notification Center (Center) to also require that people be able to submit reports of alleged violations to the Center.
Amends GS 87-120 to add that the Center must also receive, maintain, and provide general administration of reports of alleged violations of the Article and responses. Provides that the Center is not responsible for resolving reports of alleged violations. Requires that the Center's board of directors develop a reasonable method of apportioning the costs of operating the Center among the member operators, which must be published to the member operators and approved by a majority of the member operators (was, the board must provide for a reasonable method of apportioning costs of operating the Center among the member operators). Amends the Center's duties to add (1) maintaining a record of reports of alleged violations for at least four years, including responses; (2) notifying a person against who reports of alleged violations have been made and maintain information submitted from those persons in defense against the allegations; and (3) prohibiting recovering damages from the Center arising out of the manner in which the Center receives, transmits, or otherwise administers a report of an alleged violation. Adds that the Center must contact persons against who reports have been filed to inform them of the alleged violation within 10 days of the filing of the report. Specifies information that the Center must maintain concerning alleged violations.
Amends GS 87-123 to exclude from specified notice requirements an excavation or demolition performed by a railroad entirely on land owned or operated by the railroad or, in an emergency, adjacent land. Provides that no provision of the Article applies to any railroad which owns, operates, or permits facilities under land which the railroad owns or operates.
Amends GS 87-126 to require a response within 10 (was, 15) working days after a design notice for a proposed project has been submitted to the Center. Amends one of the listed ways that an operator may respond to include providing to the person submitting the design notice the best available description of all facilities in the area designated by the design notice (was, all facilities in the area of the proposed excavation) and specifies what that may include.
Deletes proposed GS 87-128 (Investigations; enforcement; civil penalties) and proposed GS 87-129 (authorizing the Office of the State Fire Marshall to receive funds for the US Department of Transportation).
Enacts new GS 87-128. Requires the Center to establish an Underground Damage Prevention Review Board (Board) to review reports of alleged violations. Specifies qualifications of the 15 Board members, who are appointed by the Governor. Requires the Board to meet at least quarterly and to act as an arbitrator between the parties to a report. Requires the Board to notify an individuals in writing upon determining that the individual has committed a violation and gives a violating party the chance to request a hearing before the Board. Allows a violating party to initiate an arbitration proceeding before the Utilities Commission, requiring a $250 filing fee. Allows for appeal after the conclusion of the binding arbitration process. Provides that violations of the Article are subject to penalties. Penalties are as follows: (1) training, education, or both, when the violation was the result of an accident; (2) $1,000, training, education, or a combination, if the violation was due to ordinary negligence; and (3) $2,500, training, and education if the violation was the result of gross negligence or willful or wanton conduct.
Summary date: May 2 2013 - More information
House committee substitute to the 1st edition makes the following changes. Amends the declaration of policy and purpose to clarify that it is necessary to protect from costly damage underground facilities used for distributing communication, among other items.
Amends GS 87-119 (Costs associated with compliance; effect of permit) to provide that the statute will not affect costs related to the operation of the Notification Center apportioned to an operator.
Amends GS 87-120 (Notification Center; responsibilities) to require the Notification Center to maintain information concerning receipt of notification of proposed excavation and demolition activities as provided in the Article and information received from operators concerning the location of the operators' facilities and the operators' positive responses to marking of the facilities. Provides that the Notification Center is not responsible for identifying or marking facilities for operators. Also provides that the Notification Center is not an agency of the state or any of the state's political subdivisions and is not subject to the provisions of GS Chapters 132 or 133. Amends the definition of Notification Center in GS 87-117 to remove these same provisions from the definition. Also amends GS 87-120 to require each engineering division of the Department of Transportation established under GS 136-14.1 to join the Notification Center by October 1, 2016. Requires all operators who do not meet one of the specified criteria in this statute (was, in the statute and Divisions 1-14 in the Department of Transportation, Transportation Program and Asset management function), to join no later than October 1, 2016.
Makes a clarifying change to GS 87-123.
Amends GS 87-128 to require the Office of the State Fire Marshall to submit a report detailing a violation of the Article by any contract locator, excavator, locator, operator, or other person to the NC Utilities Commission, which must then hold a hearing to determine the severity of the violation and assess a civil penalty.
Enacts new GS 87-129 (and renumbers already proposed GS 87-129 as GS 87-130) to authorize the Office of State Fire Marshall (Office) to receive funds from the US Department of Transportation for the regulation of facilities. Requires operators to pay a fee to the Office to fund investigation of violations, with the fee based on the number of miles of facilities the operator owns, operates, or maintains in the state, not to exceed $1 per mile.
Summary date: Mar 28 2013 - More information
Repeals Article 8 (Underground Damage Prevention) of GS Chapter 87.
Enacts new Article 8A (Underground Utility Safety and Damage Prevention Act) of GS Chapter 87. Provides that the act supersedes and preempts any city or county ordinance (1) requiring operators to obtain city or county permits to identify facilities; (2) requiring pre-marking or marking of facilities; (3) specifying the types of paint or other marking devices that are used to identify facilities; or (4) requiring removal of unexpired marks, which will be the responsibility of the city or county. Defines a facility as an underground line, underground system, or underground infrastructure used for producing, storing, conveying, transmitting, identifying, locating, or distributing communication, electricity, gas, petroleum, petroleum products, hazardous liquids, water, steam, or sewage. Prohibits costs or expenses associated with an excavator's compliance with the Article from being charged to an operator and prevents the operator's costs or expenses of compliance from being charged to any excavator. Prohibits the Notification Center from imposing charges.
Requires the operators (any person, public utility, communications or cable service provider, municipality, electrical utility, or electric or telephone cooperative that owns or operates a facility in the state) to maintain a Notification Center (Center) to provide services required in the Article and to join the Center and use the Center's services to perform required acts. Sets deadlines for joining the Center based on the entity's number of customers. Sets the Center's duties and responsibilities, including establishing and operating a damage prevention training program for members. Requires the Center to receive notice from persons intending to excavate or demolish in the state and to transmit specified information to the appropriate operator.
Establishes information that the operator must provide to the excavator and specifies timelines by which the information must be provided. Sets out further provider responsibilities including preparing installation records for facilities installed in a public street, alley, or right-of-way dedicated to public use. Requires facilities installed on or after the effective date of the Article to be electronically locatable. Allows an operator to reject an excavation or demolition notice due to homeland security considerations.
Establishes excavator responsibilities, including providing notice to the Center of the intent to excavate or demolish. Provides timing requirements for different types of notice. Sets out information that must be included in the notices. Requires excavators to comply with 10 specific requirements including confirming a positive response system through the System before excavation or demolition that all operators have responded and that all facilities affected have been marked, planning the excavation or demolition to avoid damage or minimize interference with facilitates, and giving the operator a reasonable time in which to remove or protect the operator's facilities before demolition commences.
Sets out exemptions from the notice requirements. Provides for notification to the Center in the case of emergency excavation or demolitions. Makes it a Class 3 misdemeanor to falsely claim that an emergency exists requiring an excavation or demolition.
Requires that notice be given upon discovering damage to a facility. Provides for notification in the instance of damage resulting in the discharge of electricity or the escape of any flammable, toxic, or corrosive gas or liquid.
Allows designers to submit design notice to the Center. Requires a response in a specified manner within 15 working days.
Provides that if an operator has been given notice by the Center and fails to respond or properly locate the facility, the person excavating may proceed with the excavation.
Provides for civil penalties not to exceed $2,500 for each violation of the article. Includes other provisions concerning civil remedies. Includes a severability clause.
Effective October 1, 2014, and applies to all activities regulated by Article 8A, as enacted by the act, that occur on or after that date.
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