Chapter 092

2009 -- S 474 SUBSTITUTE A AS AMENDED

Enacted 07/09/09

A N A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS -- UNDERGROUND UTILITY FACILITIES

Introduced By: Senators DeVall, DiPalma, Sosnowski, P Fogarty, and Gallo

Date Introduced: February 25, 2009

It is enacted by the General Assembly as follows:

SECTION 1. Sections 39-1.2-1, 39-1.2-5, 39-1.2-7, 39-1.2-8, 39-1.2-12 and 39-1.2-13 of

the General Laws in Chapter 39-1.2 entitled "Excavation Near Underground Utility Facilities" are

hereby amended to read as follows:

39-1.2-1. Definitions. -- As used in this chapter:

      (1) "Administrator" means the administrator of the division of public utilities and

carriers.

      (2) "Approximate location of underground facilities" means a strip of land extending not

more than one and one-half (1 1/2) feet on either side of the underground facilities.

      (3) "Association" means the group of public utilities formed pursuant to section 39-1.2-4

for the purpose of receiving and giving notice of excavation activity within the state.

      (4) "Damage" means and includes but is not limited to the substantial weakening of

structural or lateral support of a utility line, penetration, or destruction of any utility line

protective coating, housing, or other protective device or the severance, partial or complete of any

utility line.

      (5) "Demolition" means the wrecking, razing, rending, moving, or removing of any

structure.

      (6) "Excavation" means an operation for the purpose of movement or removal of earth,

rock, or other materials in or on the ground, or otherwise disturbing the subsurface of the earth,

by the use of powered or mechanized equipment, including but not limited to digging, blasting,

auguring, back filling, test boring, drilling, pile driving, grading, plowing in, hammering, pulling

in, trenching, and tunneling; excluding the movement of earth by tools manipulated only by

human or animal power and the tilling of soil for agricultural purposes.

      (7) "Governing authority" means the permit issuing authority.

      (8) "Person" means an individual, partnership, corporation, association, or a public

utility, including a person engaged as a contractor by a public agency and including a public

agency.

      (9) "Public agency" means the state or any political subdivision thereof, including any

governmental agency.

      (10) "Public utility" means the owner or operator of underground facilities for furnishing

electric, gas, telephone, or water service as defined in section 39-1-2(20); and also means and

includes, for the purposes of this chapter only, electric transmission companies and nonregulated

power producers, as defined in section 39-1-2(13) and (19); any cable television service; and any

water company which voluntarily becomes a member of the association provided for under

section 39-1.2-4.

      (11) "Public utility facilities" means the underground plant and equipment owned and

operated by a public utility for the purpose of furnishing electricity, gas, water, cable television or

telephone service; including the underground plant and equipment owned and operated by any

water company, not subject to regulation by the administrator of the division of the public utilities

which voluntarily joins the association provided for under section 39-1.2-4. Utility facilities shall

include active, newly installed and inactive or abandoned, utility facilities.

(12) “Abandoned utility facilities” means any known underground or submerged utility

line or facility that has been permanently taken out of service. For excavation purposes the

abandoned underground utility facilities should always be considered to be active utility service.

(13) “Inactive utility facilities” means any underground or submerged utility facilities

line or facility that has been temporarily taken out of service with the expectation of becoming

usable in the future.

39-1.2-5. Notice of excavation. -- Except as provided in section 39-1.2-9, any person,

public agency or public utility responsible for excavating within one hundred feet (100') or for

discharging explosives within one hundred feet (100') of a public utility facility shall notify the

association of the proposed excavation or discharge by telephone at least forty-eight (48) seventy-

two (72) hours, excluding Saturdays, Sundays, and holidays, but not more than thirty (30) days

before commencing the excavation or discharge of explosives. Actual excavation must thereupon

be performed commence within thirty (30) days and be completed within sixty (60) days,

including Saturdays, Sundays and holidays, or the excavator must renotify the association. Each

public utility shall, upon receipt of each notice of excavation, mark within forty-eight (48)

seventy-two (72) hours or, where applicable in accordance with section 39-1.2-12, re-mark within

twenty-four (24) forty-eight (48) hours, the location of all underground facilities. If an excavator

determines that a public utility facility has been mismarked, the excavator may notify the

association and the appropriate public utility shall remark no later than three (3) hours after

receipt of notification from the association. The failure to mark or re-mark the location of all

underground facilities upon each notice of excavation shall constitute a separate violation of this

chapter. Where an excavation is to be made by a contractor as part of the work required by a

contract with the state or with any political subdivision thereof or other public agency, for the

construction, reconstruction, relocation, or improvement of a public way or for the installation of

a railway track, conduit, sewer, or water main, the contractor shall be deemed to have complied

with the requirements of this section by giving one such notice as required by this section except,

when unanticipated obstructions are encountered, setting forth the location and the approximate

time required to perform the work involved to the association. In addition, the initial notice shall

indicate whether the excavation is anticipated to involve blasting and if so, the date on which and

specific location at which the blasting is to occur. If after the commencement of an excavation, it

is found there is an unanticipated obstruction requiring blasting, the excavator shall give at least

four (4) hours notice to the association before commencing the blasting. When demolition of a

building containing a public utility facility is proposed, the public utility or utilities involved will

be given written notice by registered mail at least ten (10) days prior to the commencement of the

demolition of the building. All notices shall include the name, address, and telephone number of

the entity giving notice, the name of the person, public agency, or public utility performing the

work, and the commencement date and proposed type of excavation, demolition, or discharge of

explosives. The association shall immediately transmit the information to the public utilities

whose facilities may be affected. An adequate record shall be maintained by the association to

document compliance with the requirements of this chapter.

39-1.2-7. Marking of underground utilities Marking of underground utilities and

excavations. -- (a) A public utility served with the notice in accordance with section 39-1.2-5

shall, within forty-eight (48) seventy-two (72) hours, exclusive of Saturdays, Sundays, and legal

holidays, of the receipt of the notice, unless otherwise agreed between the person or public

agency performing the work and the public utility, mark the approximate location of the

underground utilities utility facilities.

(b) Prior to notifying the association, any excavator must premark the area of proposed

excavation in a manner that will enable the owner of the public utility facilities to identify the

boundaries of the proposed excavation activities, except that premarking shall not be required if

the proposed excavation will be continuous and exceed five hundred feet (500') in length, or if

such marks may reasonably interfere with traffic or pedestrian control or are misleading to the

general public.

(c) A public utility shall mark any of their underground utility facilities that are located

within fifteen feet (15') of the exterior limits of the premarked excavation area.

(d) For the purposes of this chapter, the approximate location of underground utility

facilities shall be marked with stakes, paint, or other physical means as may be necessary to

ensure a distinctive mark. The public utility shall follow the color coding prescribed in this

section.

     UTILITY AND TYPE OF PRODUCT SPECIFIC GROUP IDENTIFYING COLOR

     Electric power distribution and transmission Safety Red

     State and municipal electric systems Safety Red

     Gas distribution and transmission High Visibility Safety Yellow

     Dangerous materials, product line High Visibility Safety Yellow

     Telephone and telegraph systems Safety Alert Orange

     Water systems Safety Precaution Blue

Cable antenna television Safety Alert Orange

Premark White

(b) (e) In the event the excavator shall damage the underground public utility facilities as

the result of an incorrect marking by the public utility, the excavator shall not be responsible for

the resulting damage.

39-1.2-8. Notice in emergency. – (a) In the event of any emergency proposing posing a

threat to life, public health, public safety or property, or which may require immediate correction

in order to continue the operation of a major industrial plant, or to assure the continuity of public

utility service, excavation, maintenance, or repairs may be made without using explosives upon

notice and advice thereof given to the association as soon as it is determined that an emergency

exists. The excavator shall thereafter employ any means necessary, excluding blasting, to insure

that the underground public utility facilities in the area of the excavation shall not be damaged.

(b) In the event of an emergency, public utilities shall notify the excavator, at the

telephone number provided to the association by the excavator, within two (2) hours upon receipt

of notice as to whether the public utility has any facilities in the vicinity of the proposed

excavation. If the public utility has any facilities in the vicinity of the proposed excavation, the

public utility shall mark out their facilities no later than three (3) hours after receipt of notice

from the association.

39-1.2-12. Maintenance of utility markings. -- After a public utility has marked its

underground facilities in accordance with the provisions of section 39-1.2-7, the excavator shall

be responsible for maintenance of the designated markings. In the event the markings are

obliterated, destroyed, or removed, the utility shall, within twenty-four (24) forty-eight (48) hours

following the receipt of a request, remark the location of its facilities.

39-1.2-13. Penalties. -- (a) Any person or utility who violates any provision of this

chapter shall be subject to a civil penalty of no more than three hundred fifty dollars ($350) two

hundred dollars ($200) for the first offense and not less than five hundred dollars ($500) nor more

than one thousand dollars ($1,000) two thousand five hundred dollars ($2,500) for any

subsequent offense within a twelve (12) month period. The administrator of the division of public

utilities shall assess the civil penalty against the person or utility who is determined to have

committed the violation. All penalties recovered shall be paid into the general fund of the state.

This chapter shall not be construed to affect any civil remedies for personal injury or property

damage (including underground utilities), except as otherwise specifically provided for in this

chapter.

      (b) Any contractor found in violation of this chapter who, after due process of law, fails

to satisfy any such fines levied pursuant to this chapter shall be ineligible to bid on or be awarded

any municipal, quasi-municipal, state, state funded, state regulated or state subsidized

construction and/or public works contracts.

SECTION 2. Chapter 39-1.2 of the General Laws entitled "Excavation Near

Underground Utility Facilities" is hereby amended by adding thereto the following section:

39-1.2-1.1. Findings. – The general assembly finds and declares that:

(1) Safety and the need for an effective damage prevention program for underground

utility facilities should include participation from all stakeholders including excavators and utility

companies;

(2) To develop a process for fostering and promoting the use of an effective damage

prevention program, by all appropriate stakeholders, technologies need to be improved that

enhance communications, underground pipeline locating capability, and gathering and analyzing

information about the accuracy and effectiveness of underground facility locating programs;

(3) Many public, private and municipal utilities are located underground including, but

not limited to, gas, water, electric, cable television, telephone and sewers. Excavation in the

vicinity of such utilities can be dangerous and the utilities should be marked appropriately to

avoid damage, injury or public emergency; and

(4) All utilities whether public, private or municipal should strongly consider

participation in the utility damage prevention program known as Dig Safe System, Inc. to insure

the highest level of safety and awareness of utility facility locations.

SECTION 3. Chapter 45-14 of the General Laws entitled "Sewage Charges" is hereby

amended by adding thereto the following section:

45-14-1.1. Recording of sewer system. – Starting on January 1, 2012, all cities and

towns that own, operate, manage or control a sewer system shall require as-built drawings and

plans on any new sewer main extension to be submitted to the sewer authority. In addition, an as-

built record drawing and plans shall be submitted to the sewer authority for any sewer main

upgrade or repair that deviates in horizontal or vertical alignment from the existing sewer main

horizontal or vertical alignment. The preparation and submission of such as-built drawings and

plans shall be the responsibility of the person that each city and town has designated either by

ordinance or by contract. All cities and towns shall determine the form in which such drawings

and plans shall be submitted.

SECTION 4. Chapter 46-25 of the General Laws entitled "Narragansett Bay

Commission" is hereby amended by adding thereto the following section:

46-25-19.1. Recording of sewer systems. – Starting on January 1, 2012, the commission

shall maintain as-built drawings and plans on any new or upgraded sewer main it owns and

operates. Such as-built drawings and plans shall be the responsibility of the person that the

commission has designated and shall be in a form designated by the commission.

SECTION 5. This act shall take effect on November 1, 2009.

=======

LC01193/SUB A

=======