GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	3 

HOUSE BILL 1032*
Committee Substitute Favorable 4/27/99
Committee Substitute Reported Without Prejudice 4/29/99

Short Title:  Underground Utility Damage Amend.	(Public)

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Sponsors:

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Referred to: 

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April 14, 1999

A BILL TO BE ENTITLED
AN ACT TO AMEND THE UNDERGROUND DAMAGE PREVENTION ACT.
The General Assembly of North Carolina enacts:
Section 1.  Article 8 of Chapter 87 of the General Statutes reads as rewritten:
"ARTICLE 8.
"Underground Damage Prevention.
"§ 87-100.  Short title.
This Article shall be known as the "Underground Damage Prevention Act".
"§ 87-101. Definitions.
As used in this Article:
	”(2) 	"Damage”includes the substantial weakening of structural or lateral support of an underground utility, penetration or destruction of protective coating, housing, or other protective device of an underground utility, and the partial or complete severance of an underground utility.
(2a)	"Emergency”means a sudden or unexpected occurrence involving an imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential service.
(3) 	"Excavate”or "excavation”means an operation for the purpose of the movement or removal of earth, rock, or other materials in or on the ground by use of equipment operated by means of mechanical power and/or an operation by which a structure or mass of material is wrecked, razed, moved, or removed by means of any tools, equipment, or discharge of explosives. This term includes road construction but does not include road maintenance activities within rights-of-way of a highway, including those maintenance activities defined by the rules and regulations of the North Carolina Department of Transportation.
(4) 	"Highway”has the meaning set out in G.S. 20-4.01 as the same shall be amended from time to time.
(4a)	"Inclement weather”means an act of God that creates a weather condition that prevents the placement of temporary markings as required by G.S. 87-102.
(5) 	"Location of underground utilities”means a strip of land not wider than the width of the underground utility plus two and one-half (2 1/2) feet on either side of the underground utility.
(5a)	"Member”means a utility owner who is a member of the notification center established in G.S. 87-101.1.
(5b)	"Notification center”means the notification center established in G.S. 87-101.1.
(6) 	"Person”means a corporation, individual, copartnership, company, association, or any combination of individuals or organizations doing business as a unit, any subdivision or instrumentality of the State, and includes any officer, agent, trustee, receiver, assignee, lessee, or personal representative of any of the above entities.
(7) 	"Person financially responsible”means that person who ultimately receives the benefits of any completed excavation activities, including a person owning or leasing real property or holding an easement or interest in an easement.
(8) 	"Public spaces”means any area owned by the State or any of its political subdivisions or dedicated for public use.
(9) 	"Road construction”means the actual building of a new highway; or the paving, grading, widening, relocation, reconstruction, or other major improvement of a substantial portion of an existing highway.
(10)	"Road maintenance”means preservation, including repairs and resurfacing of a highway, not amounting to road construction.
(11)	"Street”has the meaning set out in G.S. 20-4.01 as the same shall be amended from time to time.
(12)	"Underground utility”means any underground line, system or facility used for producing, storing, conveying, transmitting, or distributing communication or telecommunication, electricity, gas, petroleum and petroleum products, coal slurry, hazardous liquids, water under pressure, steam, or sanitary sewage, but not including traffic signal control cables and vehicle detection cables of the North Carolina Department of Transportation.
(13)	"Utility owner”means any person who owns or operates an underground utility.
(14)	"Work day”means every day except Saturday, Sunday, national legal holidays and State legal holidays.
"§ 87-101.1.  Establishment of notification center.
(a)	Utility owners shall establish a single notification center to provide for the receipt of notification of excavation operations throughout the State and to maintain a database, provided by its members, that includes the geographic areas in which its members desire transmissions of notices of proposed excavations, and which has the capability to transmit notices of proposed excavations to its members by teletype, telecopy, electronic mail, facsimile, or telephone.
(b)	The notification center shall be operated as a nonprofit corporation, and except as provided in G.S. 87-107(a), each utility owner shall be a member of that corporation by using and participating in the notification system.  The membership of the corporation shall elect a board of directors, through which the notification center shall perform its duties.
(c)	In order to fund the operation of the notification system, the notification center, through its board of directors, may assess each member an amount reflecting the cost of that member's participation in the system.
(d)	The board of directors of the notification center shall provide the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives with an annual progress report on the operation of the notification system provided for in this Article by March 1 of each year.
"§ 87-102. Notice required prior to excavation.
(a)	Except as provided in G.S. 87-106, before commencing any excavations in highways, public spaces or in private easements of a utility owner, a person planning to excavate shall notify the notification center or a unit of local government that has elected not to be a member pursuant to the provisions of G.S. 87-107(a) either orally or in writing, not less than two nor more than 10 working days prior to starting, of his intent to excavate.
(b)	The written or oral notice required in subsection (a) shall contain:
(1)	The name, address, and telephone number of the person filing the notice;
(2) 	The name, address, and telephone number of the person doing the excavating;
(3) 	The anticipated starting date of the excavation;
(4)	The anticipated duration of the excavation;
(5)	The type of excavation to be conducted;
(6)	The location of the proposed excavation; 
(7)	Whether or not explosives will be used; and
(8)	Whether or not boring, drilling, tunneling, ramming, or punching will take place.
(c)	If the notice required by this section is made by telephone,  an adequate record shall be made by the notification center or the unit of local government to document compliance with this section.
(d)	At any time when the underground utility location markings on the ground become illegible or are destroyed, the excavator shall request a remarking of the underground utility locations.  The utility owner shall remark the locations as soon as possible after such a request, but in any event the remarking shall be completed within 48 hours after the request to remark is received, barring inclement weather.
"§ 87-103. Effect of permit on liability.
A permit authorizing excavation operations and issued pursuant to law or ordinance shall not relieve a person of the responsibility of complying with this Article.
"§ 87-104. Requirements of person doing excavation.
(a)	Except as provided in G.S. 87-106, no person may excavate in a highway, a public space, or a private easement of a utility owner without first having given the notice required in G.S. 87-102.
(b)	In addition to the notification requirements, each person excavating shall:
(1)	Plan the excavation to avoid damage and to minimize interference with underground utilities in and near the construction area, to the best of his abilities.
(2)	Maintain a clearance between an underground utility and the cutting edge or point of any mechanized equipment, taking into account the known limit of control of that cutting edge or point, as is reasonably required to avoid damage.
(3) 	Provide support for the underground utilities in or near the  construction area, including backfill, as may be reasonably required by the utility owner for the protection of the underground utilities.
"§ 
"§ 87-105.1.  Requirements of notification center.
(a)	The notification center or a unit of local government that has elected not to be a member pursuant to the provisions of G.S. 87-107(a) shall, upon receiving notice of the intent to excavate, notify all utility owners whose underground lines are located in the area of the proposed excavation.  The notification center or the unit of local government shall also indicate the names of those utilities being notified to the person intending to excavate.
(b)	If the notification required by this act is made by telephone, a voice recording of the notification shall be maintained by the notification center to document compliance with the notification requirement and those records shall be maintained for at least 48 months.
(c)	The notification center shall provide statewide operations coverage and a single, nationally accessible toll-free telephone number to receive and record the information provided by excavators and to respond to information requests from excavators.  A unit of local government that has elected not to be a member pursuant to the provisions of G.S. 87-107(a) shall provide operations coverage and a single, nationally accessible toll-free telephone number to receive and record the information provided by excavators and to respond to information requests from excavators.
"§ 87-106. Exemptions.
The following excavations are exempted from the notification requirements of this Article:
(1)	Tilling of soil for agricultural purposes;
(2)	Excavation by a utility owner or road maintenance activities by the Department of Transportation described in G.S. 87-101(3) on or within an easement, right-of-way, or property owned or controlled by any of these entities, 
			where only the facilities of the utility owner doing the excavating are permitted;
(3)	The replacement of a pole as long as the replacement pole is within three feet of the original pole and within the line of existing poles. This exception shall not apply to poles at highway intersections or at the crossings of highways and permanently marked transmission underground utilities; and
(4)	In the case of an emergency, excavations immediately required to repair or maintain the needed service may be made, without using explosives, if notice is given to the notification center as soon as is reasonably possible; except that the prohibition against the use of explosives shall not apply to the North Carolina Department of Transportation. Performance of emergency excavation shall not relieve the person financially responsible from liability for damages.
"§ 87-107. Duties of the utility owners.
(a)	Every utility owner having underground utility lines, including units of local government, shall be a member of the notification center.  A unit of local government may elect not to be a member of the notification center if it agrees to receive notice of the intent to excavate and agrees to notify utility owners within its jurisdiction.
(b)	Each utility owner, or his designated representative, notified of an intent to excavate shall, before the proposed start of excavating (unless another period is agreed to by the person conducting the excavation and the utility owner or their representatives), provide the following information to the person excavating to the extent such information is reflected by records in the possession of and reasonably available to the utility owner:
(1)	The location of all of the underground utilities which may be damaged as a result of the excavation; and
	(3) 	Any other information that would assist in locating and avoiding damage to the underground utilities, including providing temporary markings when necessary indicating the location of the underground utility in locations where permanent utility markers do not exist.
"§ 87-108. Absence of utility location.
Should any utility owner who has been given notice pursuant to G.S. 87-102 fail to respond to that notice as provided in G.S. 87-107, or fail to properly locate the underground utility, then the person excavating is free to proceed with the excavation. Neither the excavator nor the person financially responsible for the excavation will be liable to the nonresponding or improperly responding utility owner for damages to that utility owner's facilities if the person doing the excavating shall exercise due care to protect existing underground utilities when there is evidence of the existence of those underground utilities near the proposed excavation site.
"§ 87-109. Recording requirements for the notification center.
The notification center shall record with the Register of Deeds of each county in which participating utility owners own or operate underground utilities, a notarized document providing the telephone number and address of the notification center, a description of the geographical area served by the notification center, and a list of the names and addresses of the utility owners receiving these services from the notification center.
"§ 87-110. Recording requirements for utility owners.
(a)	Each utility owner having underground utilities in North Carolina shall record a notarized document containing the name of the utility owner and the title, address, and telephone number of its representatives designated to receive the written or oral notice of intent to excavate, with the Register of Deeds of each county in which the utility owner owns or operates underground facilities. This document shall be executed by an officer of the utility owner or in the case of a governmental entity, the authorized official.
(b)	Any change or modification of the information recorded by a utility owner, pursuant to subsection (a) of this section, shall be made by recording the corrected information with the Register of Deeds of each county to which the change or modification applies, in the manner required by subsection (a) of this section within five days of the change made to the utilities.
(c)	For purposes of the recordings required by subsections (a) and (b) of this section, recordings by the notification center pursuant to G.S. 87-109 shall satisfy the recording requirements for each utility owner who is a member of the notification center while that utility owner remains a  member of the notification center.
(d)	Upon receipt of the documents recorded pursuant to subsections (a), (b), or (c) of this section, the Register of Deeds shall place the documents in the Grantor's Index under the heading "Underground Utilities". The registration fee imposed by Chapter 161 of the General Statutes shall apply to these documents.
87edepartments
"§ 87-112. Color-coding.
When the location of an underground utility is marked with stakes, flags, or paint, or by other physical means, pursuant to this Article, the utility owner shall use temporary colored markings following the American Public Works Association Uniform Color Code for Utilities.
"§ 87-113. Notification required when damage done.
(a)	The person doing an excavation that results in any known damage to an underground utility shall, immediately after the discovery of the damage, notify the utility owner of the location and nature of the damage and shall allow the utility owner reasonable time to repair the damage before completing the excavation in the immediate area of the damaged underground utility.
(b)	The person responsible for conducting any excavation that results in damage to an underground utility where the damage may endanger life, health, or property shall, immediately after the discovery of the damage, take action to protect the public and property, notify the utility owner, notify the police or fire departments, and take any other actions to minimize the hazards until the arrival of the utility owner's personnel, the police, or the fire department. The excavator shall delay any backfilling in the immediate area of the damaged underground utility until authorized by the utility owner unless it is necessary to prevent injury or property damage to others. Repair of any damage shall be performed by the utility owner or by qualified personnel authorized by the utility owner.
"§ 87-114.  Homeowners.
This Article does not require utility notification before a property owner digs in any area on his own property with nonmechanized equipment nor prior to tilling the soil for agricultural, gardening or landscaping purposes. Mechanized equipment may be used, without utility notification, in any area on the owner's property with the exception of recorded underground utility easements which describes the location of the easement with specificity.
"§ 87-115.  Requests for survey locates and design locates.
The information required for requests for facility locates in conjunction with survey or design activities shall be the same as specified in G.S. 87-102.  The utility owners receiving requests for survey locate or design locate work shall respond to the request within 10 working days.
"§ 87-116.  Civil penalties.
(a)	A person who violates the provisions of G.S. 87-102(a), 87-104(b), or 87-107(a) is subject to a civil penalty as follows:
(1)	Upon the first violation by that person, two hundred fifty dollars ($250.00);
(2)	Upon the second violation occurring within the same 12-month period as the first violation, five hundred dollars ($500.00); and
(3)	Upon the third violation occurring within the same 12-month period as the first violation, one thousand dollars ($1,000).
(b)	An action under this section may be initiated by any person making a complaint in writing, verifying by oath and having reason to believe that a violation has occurred.
(c)	Prosecution of violations shall be brought by the district attorney for the prosecutorial district in which the violation arose or in the county in which the defendant resides or in which the defendant's principal place of business is located.
(d)	All civil penalties recovered under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
(e)	The civil penalties provided for in this section do not apply to the State of North Carolina or to units of local government."
Section 2.  This act becomes effective July 1, 2000.