Be Aware of Changes to Excavation Operation Statutes

By John P. Ahlers and Paige B. Spratt, Ahlers & Cressman

With the Washington Underground Utility Damage Prevention Act, the Legislature made changes to the "one-call statute". The Act, which is not effective until January 1, 2013, is a response to incidents involving underground utilities that have been damaged, causing serious or fatal consequences. The following outlines the major changes that will have a direct impact to excavators or contractors engaged in excavation operations and those aspects of the statute that have remained unchanged.

A. Provisions Which Pertain to Contractors/Excavators

Many of the provisions contained in the present One Call Bill (RCW 19.122) have been carried over in the new statute; however, there are also substantial changes which are set forth below.

(1) Changes which effect Contractors and Excavators. For excavators or contractors engaged in excavation operations (defined as "any person who engages directly in excavation") the major changes include the following:

Increased civil penalties: The initial violation civil penalty is not more than $1,000 and each subsequent violation within a three year period is not more than $5,000.

New boundary marking requirements: The excavator must mark the excavation area with white paint. If marking is not feasible because of a large area or multiple excavations, the excavator must confer with the facility operator.

Mandatory marking maintenance: The excavator must maintain the markings for the lesser of (i) 45 days or (ii) the duration of the project. If the excavator fails to maintain the markings for the duration and repeatedly requests that facility operators provide markings, the facility operator may be able to charge the excavator for its locate services.

Reporting requirements: If the excavator damages an underground utility, it must contact the UTC within 45 days (or sooner if required by law) using the UTC’s DIRT report form.

Installing signs are now included: "Excavation" now includes the installation of new signposts where "earth, rock, or other material on or below the ground is moved or otherwise displaced by any means." There is an exception for replacing signs that were installed prior to January 1, 2013.

Permit conditions: Any local government that issues permits (building, electrical, etc.), "when permitting construction OR excavation within 100 feet, or greater distance if required by a local ordinance, of a right of way or utility easement containing a transmission pipeline must: (1) notify the pipeline company of the permitted activity when it issues a permit; or (2) require the applicant [to] consult with the pipeline company as a condition of issuing the permit."

Contractor's Liable for Costs: The existing statute reads that a facility operator has the right to receive compensation from an excavator if the excavator gives the facility operator less than two days notice. The statute was modified to read that the excavator will (starting January 1, 2013) be liable for "costs incurred by the facility operator if the excavator does not comply with the requirements specified in the statute," not only for the costs associated with the excavator's failure to give at least two days notice to the facility operator.

(2) Features of the Revised Statute that Remain Unchanged: The aspects of the statute that will remain, for the most part, unchanged include the following:

Two-days notice (or more than 10 days): Contractors or excavators are still required to call the one-call number two business days but no more than 10 days before commencing excavation. The day that the call is placed is not included in the two days notice requirement.

Locate Service: The "one-call" service is currently free and will most likely continue to be a free service. One call is sponsored by the facility operators to prevent damage to their underground facilities, which disrupts services to their customers.

Confirmation Code: Currently, when the one-call number is contacted, the caller is given an excavation confirmation code that serves as proof of the call. Presumably, the confirmation number system will not change; however, we will keep you apprised should there be any changes.

Emergency excavation: There is still an exception to the two day notice requirement. If there is an emergency situation, an excavator may perform an excavation without giving notice. The definition of an emergency excavation remains unchanged: "Any condition constituting a clear and present danger to life or property, or a customer service outage."

Definition of "excavation": The definition of excavation remains largely unchanged (with exception of adding "installation of signs" discussed above), which is included in the broad definition "any operation in which earth, rock, or other material on or below the ground in moved or otherwise displaced by any means."

Unidentified underground facilities: The contractor must, as before, cease work if, upon excavation, it discovers underground utilities that have not been unidentified. The contractor must then notify the facility operator (if the excavator can identify the type of utility) or the contact the one-call number.

Due to the increased fine violations and heightened notice requirements to facility operators, it will be important for contractors engaged in excavating operations and excavators to maintain documentation showing statutory compliance. Document meetings of conversations with facility operators and pipeline transmission companies when verifying the underground facilities within the excavation area, take photos of the marked boundary areas in case of a future locate disputes, and document, document, document.

While the above changes are not all-inclusive, they provide an overview of the major changes that contractors should plan for when excavating after January 1, 2013. Although these changes are not effective until 2013, it is prudent to implement these new requirements into your company’s safety plan. For a copy of the entire passed bill, click here.

John P. Ahlers and Paige B. Spratt are attorneys with Ahlers & Cressman PLLC. John is a member of AGC's Legal Affairs Committee.

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