This past session, the North Carolina General Assembly replaced
the existing Underground Damage Prevention Act with the Underground Utility Safety and Damage Prevention
Act, which took effect on October 1, 2014.
Developers (excavators) and local governments (Facility Operators)
alike should take note.
The Act's stated purpose is "to protect the citizens and
workforce of this State from the dangers inherent in excavating or
demolishing in areas where underground lines, systems, or
infrastructures are buried beneath the surface of the ground"
and "to protect from costly damage underground facilities used
for producing, storing, conveying, transmitting or distributing
communication, electricity, gas, petroleum, petroleum products,
hazardous liquids, water, steam, or sewage."
The Act is meant to provide for a systemic, orderly, and uniform
process to identify existing underground facilities in advance of
any excavation or demolition and to implement safe digging
practices.
What are the new obligations as of October 1, 2014?
Let's see.
Operators. The Act requires "operators" to
maintain and join a "Notification Center". An
"operator" is defined as any person, public utility,
communications or cable service provider, municipality, electrical
utility, or electric or telephone cooperative that owns or operates
a Facility within the State.
Facility. A facility is defined to include any underground
line, system or infrastructure used for producing, storing,
conveying, transmitting, identifying, locating, or distributing
communication, electricity, gas, petroleum or petroleum products,
hazardous liquids, water, steam or sewage.
Notification Center. A Notification Center is defined to
mean a member-owned, not-for-profit corporation sponsored
by Facility Operators that will provide a system through
which persons may
notify Facility Operators of proposed
excavations and demolitions. It is apparently intended that
North Carolina
811 serve as the defined Notification Center. All
Facility Operators must become members of the Notification Center
in a phased plan, depending on Facility
Operators characteristics, as defined in the Act.
Excavator. An excavator is defined as "[a] person
engaged in excavation or demolition". It is broad.
Excavator Responsibilities. Before commencing any excavation
or demolition, the person responsible for the activities must
provide notice to the Notification center of the intent to act.
The Act is specific about the contents and timing of the
notice, varying by virtue of the type of excavation or demolition
involved. Besides notice, excavators must also comply with
ten (10) specific sets of requirements designed to avoid damage or
minimize interference with Facilities.
Facility Operator Responsibilities. The Act requires
much of Facility Operators. Facility Operators are required
to prep[are installation records of all Facilities installed in a
public street, alley, or right-of-way dedicated to public use,
excluding service drops and service lines. The Facility
Operator must maintain the records while the Facility is in
service. Additionally, all Facilities installed after October
1, 2014 shall be "electronically locatable" using a
locating method that is generally accepted by operators in the
particular industry or trade in which the Facility Operator is
engaged. Upon notice from an Excavator, the Facility Operator
must provide the Excavator with the horizontal location and
description of all of the Facility Operator's Facilities in the
area where the proposed excavation or demolition is to occur.
Excavator Liabilities. If an Excavator performs an act that
damages a Facility, the Excavator is required to immediately notify
the Notification Center and the Facility Operator. If the
damage results in the discharge of electricity or any flammable,
toxic, or corrosive gas or liquid, the Excavator must immediately
notify emergency responders in addition to the Notification Center
and the Facility Operator. If a Facility Operator fails to
respond or properly locate pursuant to proper notice from an
Excavator, the Excavator is free to proceed and will not be liable
to the Facility Operator for damages provided there is due
care.
Notice Exemptions. The Act contains a number of instances
wherein notices are not required by an Excavator, such as
excavation by a single-family homeowner, in an emergency or when a
local government is conducting maintenance activities within its
designated right-of-way.
Finally, the Act expressly preempts local ordinances of certain
types. Here's how Raleigh is addressing parts of the
new law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.