As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 458


Representative Sprague 


A BILL
To amend sections 153.64, 3781.25, 3781.26, 3781.27, 1
3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 2
and to enact section 3781.261 of the Revised Code 3
to modify the call before you dig notification 4
system.5


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 153.64, 3781.25, 3781.26, 3781.27, 6
3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 be amended and 7
section 3781.261 of the Revised Code be enacted to read as 8
follows:9

       Sec. 153.64.  (A) As used in this section:10

       (1) "Public improvement" means any construction, 11
reconstruction, improvement, enlargement, alteration, or repair of 12
a building, highway, drainage system, water system, road, street, 13
alley, sewer, ditch, sewage disposal plant, water works, and all 14
other structures or works of any nature by a public authority.15

       (2) "Public authority" includes the state, or a county, 16
township, municipal corporation, school district, or other 17
political subdivision, or any public agency, authority, board, 18
commission, instrumentality, or special district of or in the 19
state or a county, township, municipal corporation, school 20
district, or other political subdivision.21

       (3) "Underground utility facilities" includes any item buried 22
or placed below ground or submerged under water for use in 23
connection with the storage or conveyance of water or sewage; or 24
electronic, telephonic, or telegraphic communications; 25
electricity; electric energy; petroleum products; manufactured, 26
mixed, or natural gas; synthetic or liquified natural gas; propane 27
gas; or other substances. "Underground utility facilities" 28
includes, but is not limited to, all operational underground 29
pipes, sewers, tubing, conduits, cables, valves, lines, wires, 30
manholes, and attachments, whether owned by any public or private 31
or profit or nonprofit person, firm, partnership, company, 32
corporation, joint stock association, joint venture, or voluntary 33
association, wherever organized or incorporated, except for a 34
private septic system in a single- or doublemulti-family dwelling 35
utilized only for that dwelling and not connected to any other 36
system.37

       (4) "Underground utility protectionProtection service" means 38
a notification center not an owner of an underground utility 39
facility, existingthat complies with the following:40

       (a) It exists for the purpose of receiving notice from public 41
authorities and from other persons that plan to prepare plans and 42
specifications for, or engage in, public improvements involving 43
digging, blasting, excavating, or other underground construction 44
activities and distributing this;45

       (b) It distributes the information described in division 46
(A)(4)(a) of this section to its members and participants;47

       (c) It has registered by March 14, 1989 with the secretary of 48
state and the public utilities commission under former division 49
(F) of this section as it existed on that date. "Registered 50
underground utility protection service" means an underground 51
utility protection service registered with the secretary of state 52
and the public utilities commission of Ohio pursuant to division 53
(F) of this section.54

       (5) "Owner of underground utility facility" does not include 55
telephone companies classified as medium or small under rule 56
4901-7-01 of the Ohio Administrative Code, owners of pipelines 57
that conduct liquid petroleum products, or cable television 58
companies to the extent that it requires membership in an 59
underground utility protection service.60

       (6)(5) "Construction area" means the area delineated on the 61
plans and specifications for the public improvement within which 62
the work provided for in the contract will be performed.63

       (B) In any public improvement which may involve underground 64
utility facilities, the public authority, prior to preparing plans 65
and specifications, shall contact the registered underground 66
utilityeach protection servicesservice and theany owners of 67
underground utility facilities that are not members of a 68
registered underground utility protection service for the 69
existence and location of all underground utility facilities 70
within the construction area. The public authority shall include, 71
in the plans and specifications for such improvement, the identity 72
and location of the existing underground utility facilities 73
located in the construction area as provided to the public 74
authority by the owner of the underground utility facility and the 75
name, address, and telephone number of each owner of any 76
underground utility facilities in the construction area that does 77
not subscribe to a registered underground utility protection 78
service. Any anticipated temporary or permanent relocation of 79
underground utility facilities deemed necessary by the public 80
authority shall be negotiated or arranged by the public authority 81
with the owners of the underground utility facilities prior to the 82
start of construction. If a temporary or permanent relocation of 83
utility facilities is necessary, the owner of the underground 84
utility facility shall be given a reasonable time to move such 85
utility facilities unless the contractor to whom the contract for 86
a public improvement is awarded or its subcontractor agrees with 87
the owner of the underground utility facility to coordinate 88
relocation with construction operations. The public authority, 89
within ten calendar days after award of a contract for a public 90
improvement, shall notify in writing all owners of underground 91
utility facilities known to be located in the construction area of 92
the public improvement of the name and address of the contractor 93
to whom the contract for the public improvement was awarded. Where 94
notice is given in writing by certified mail, the return receipt, 95
signed by any person to whom the notice is delivered, shall be 96
conclusive proof of notice.97

       (C) The contractor to whom a contract for a public 98
improvement is awarded or its subcontractor, at least two working 99
days, excluding Saturdays, Sundays, and legal holidays, prior to 100
commencing construction operations in the construction area which 101
may involve underground utility facilities, shall cause notice to 102
be given to the registered underground utility protection services 103
and the owners of underground utility facilities shown on the 104
plans and specifications who are not members of a registered 105
underground utility protection service, in writing, by telephone, 106
or in person. Where notice is given in writing by certified mail, 107
the return receipt, signed by any person to whom the notice is 108
delivered, shall be conclusive proof of notice. The owner of the 109
underground utility facility, within forty-eight hours, excluding 110
Saturdays, Sundays, and legal holidays, after notice is received, 111
shall stake, mark, or otherwise designate the location of the 112
underground utility facilities in the construction area in such a 113
manner as to indicate their course together with the approximate 114
depth at which they were installed. The marking or locating shall 115
be coordinated to stay approximately two days ahead of the planned 116
constructionSections 3781.28 to 3781.31 of the Revised Code shall 117
govern public improvements to the extent they are applicable.118

       (D) If the public authority fails to comply with the 119
requirements of division (B) of this section, the contractor to 120
whom the work is awarded or its subcontractor complies with the 121
requirements of division (C) of this section, and the contractor 122
or its subcontractor encounters underground utility facilities in 123
the construction area that would have been shown on the plans and 124
specifications for such improvement had the registered underground 125
utilitya protection service or owner of the underground utility 126
facility who is not a member of a registered underground utility127
protection service whose name, address, and telephone number is 128
provided by the public authority been contacted, then the 129
contractor, upon notification to the public authority, is entitled 130
to an increase to the contract price for itself or its 131
subcontractor for any additional work that must be undertaken or 132
additional time that will be required and is entitled to an 133
extension of the completion date of the contract for the period of 134
time of any delays to the construction of the public improvement.135

       In the event of a dispute as to the application of this 136
section, procedures may be commenced under the applicable terms of 137
the construction contract, or if the contract contains no 138
provision for final resolution of the dispute, pursuant to the 139
procedures for arbitration in Chapter 2711. of the Revised Code.140

       This section does not affect rights between the contractors 141
and the public authority for any increase in contract price or 142
additional time to perform the contract when the public authority 143
complies with division (B) of this section.144

       Any public authority who complies with the requirements of 145
division (B) of this section and any contractor or its 146
subcontractor who complies with the requirements of division (C) 147
of this section shall not be responsible to the owner of the 148
underground utility facility if underground utility lines are 149
encountered not as marked in accordance with the provisions of 150
division (C) of this section by the owner of the underground 151
utility facility, unless the contractor or its subcontractor has 152
actual notice of the underground utility facility. Except as noted 153
in this division, this section does not affect rights between the 154
contractor or its subcontractor and the owner of the underground 155
utility facility for failure to mark or erroneously marking 156
utility lines. The public authority shall not make as a 157
requirement of any contract for public improvement any change in 158
responsibilities between the public authority and the owners of 159
the underground utility facilities in connection with damage, 160
injury, or loss to any property in connection with underground 161
utility facilities.162

       The contractor or its subcontractor shall alert immediately 163
the occupants of nearby premises as to any emergency that the 164
contractor or subcontractor may create or discover at or near such 165
premises. The contractor or its subcontractor shall report 166
immediately to the owner or operator of the underground facility 167
any break or leak on its lines or any dent, gouge, groove, or 168
other damage to such lines or to their coating or cathodic 169
protection, made or discovered in the course of their excavation.170

       (E) This section does not affect rights between the public 171
authority and the owners of the underground utility facilities for 172
responsibility for costs involving removal, relocation, or 173
protection of existing underground utility facilities, or for 174
costs for delays occasioned thereby.175

       (F) An underground utility protection service shall register 176
with the secretary of state and the public utilities commission of 177
Ohio, identifying its name, address, telephone number, membership, 178
and other pertinent information. The secretary of state and 179
commission shall establish procedures for accepting such 180
registrations and providing information about registrants to 181
public authorities on request. 182

       Sec. 3781.25.  As used in sections 3781.25 to 3781.32 of the 183
Revised Code:184

       (A) "Protection service" means a notification center, but not 185
an owner of an individual utility, that exists for the purpose of 186
receiving notice from persons that prepare plans and 187
specifications for or that engage in excavation work, that 188
distributes this information to its members and participants, and 189
that ishas registered by March 14, 1989 with the secretary of 190
state and the public utilities commission of Ohio under former191
division (F) of section 153.64 of the Revised Code as it existed192
on March 14, 1989that date.193

       (B) "Underground utility facility" meansincludes any item 194
buried or placed below the surface of the earthground or 195
submerged under water for use in connection with the storage or 196
conveyance of water or sewage; electronic, telephonic, or 197
telegraphic communications; television signals; electricity; 198
electric energy; crude oil; petroleum products; artificial or 199
liquefied petroleum; manufactured, mixed, or natural gas; 200
synthetic or liquefied natural gas; propane gas; coal; steam; hot 201
water; or other substances; except that it does not include. 202
"Underground utility facility" includes all operational 203
underground pipes, sewers, tubing, conduits, cables, valves, 204
lines, wires, worker access holes, and attachments, owned by any 205
person, firm, or company. "Underground utility facility" does not 206
include either of the following:207

       (1) A private septic systemssystem in a one-family or two208
multi-family dwelling utilized only for that dwelling and not 209
connected to any other system;210

       (2) An oil or gas producing facility that is not regulated by 211
the "Natural Gas Pipeline Safety Act of 1968," 82 Stat. 720, 49 212
U.S.C. 1671, if the facility is not located in an "urbanized 213
area," as defined in section 1509.03 of the Revised Code.214

       (C) "Utility" means any owner or operator, or an agent of an 215
owner or operator, of an underground utility facility, including 216
any public authority as defined in section 153.64 of the Revised 217
Code, that owns or operates an underground utility facility, 218
except. "Utility" does not include the owners of the following 219
types of real property with respect to any underground utility 220
facility located on that property:221

       (1) The owner of a single-family or two-, three-, or 222
four-unit residential dwelling;223

       (2) The owner of an apartment complex;224

       (3) The owner of a commercial or industrial building or 225
complex of buildings, including but not limited to, factories and 226
shopping centers;227

       (4) The owner of a farm.228

       (D) "Approximate location""Tolerance zone" means the site of 229
the underground utility facility including the width of the 230
underground utility facility plus eighteen inches on each side231
all sides of the facility.232

       (E) "DaysWorking days" excludes Saturdays, Sundays, and 233
legal holidays as defined in section 1.14 of the Revised Code and 234
"hours" excludes hours on Saturdays, Sundays, and legal holidays.235

       (F) "Designer" means an engineer, architect, landscape 236
architect, contractor, or other person who develops plans or 237
designs for real property improvement or any other activity that 238
will involve excavation.239

       (G) "Developer" means the person for whom the excavation is 240
made and who will own or be the lessee of any improvement that is 241
the object of the excavation.242

       (H) "Excavation" means the use of hand tools, powered 243
equipment, or explosives to move earth, rock, or other materials 244
in order to penetrate or bore or drill into the earth, or to 245
demolish any structure whether or not it is intended that the 246
demolition will disturb the earth. "Excavation" includes such 247
agricultural operations as the installation of drain tile, but 248
excludes agricultural operations such as tilling that do not 249
penetrate the earth to a depth of more than twelve inches.250
"Excavation" excludes any activity by a governmental entity which 251
does not penetrate the earth to a depth of more than twelve 252
inches. "Excavation" excludes any underground mining operations 253
that do not involve disturbance to the earth's surface.254

       (I) "Excavation site" means the area within which excavation 255
will be performed.256

       (J) "Excavator" means the contractor or other person who is257
or persons responsible for making the actual excavation.258

       (K) "Interstate gas pipeline" means an interstate gas 259
pipeline subject to the "Natural Gas Pipeline Safety Act of 1968," 260
82 Stat. 720, 49 U.S.C. 1671, as amended.261

       (L) "Interstate hazardous liquids pipeline" means an 262
interstate hazardous liquids pipeline subject to the "Hazardous 263
Liquid Pipeline Safety Act of 1979," 93 Stat. 1003, 49 U.S.C. 264
2002, as amended.265

       (M) "Special notification requirements" means requirements 266
for notice to an owner of an interstate hazardous liquids pipeline 267
or an interstate gas pipeline that must be made prior to 268
commencing excavation and pursuant to the owner's public safety 269
program adopted under federal law.270

       (N) "Commercial excavator" means any excavator, excluding a 271
utility as defined in this section, that satisfies both of the 272
following:273

       (1) For compensation, performs, directs, supervises, or is 274
responsible for the excavation, construction, improvement, 275
renovation, repair, or maintenance on a construction project and 276
holds out or represents oneself as qualified or permitted to act 277
as such;278

       (2) Employs tradespersons who actually perform excavation 279
construction, improvement, renovation, repair, or maintenance on a 280
construction project.281

       (O) "Person" has the same meaning as in section 1.59 of the 282
Revised Code and also includes a public authority.283

       (P) "Positive response system" means an automated system 284
facilitated by a protection service allowing a utility to 285
communicate to an excavator the presence or absence of any 286
conflict between the existing underground utility facilities and 287
the proposed excavation site.288

       (Q) "Project" means any undertaking by a private party of an 289
improvement requiring excavation.290

       (R) "Public authority" has the same meaning as in section 291
153.64 of the Revised Code.292

       (S) "Improvement" means any construction, reconstruction, 293
improvement, enlargement, alteration, or repair of a building, 294
highway, drainage system, water system, road, street, alley, 295
sewer, ditch, sewage disposal plant, water works, and all other 296
structures or works of any nature.297

       (T) "Emergency" means an unexpected occurrence causing a 298
disruption or damage to an underground utility facility that 299
requires immediate repair or a situation that creates a clear and 300
imminent danger that demands immediate action to prevent or 301
mitigate loss of or damage to life, health, property, or essential 302
public services.303

       (U) "Nondestructive manner" means using low-impact, low-risk 304
technologies such as hand tools, or hydro or air vacuum excavation 305
equipment.306

       Sec. 3781.26.  (A) Each utility that owns or operates 307
underground utility facilities shall participate in and register 308
the location of its underground utility facilities with a 309
protection service that serves the area where the facilities are 310
located. A utility may elect to participate in the service on a 311
limited basis and if it does so, it shall register the location of 312
its underground utility facilities only by identifying the 313
municipal corporations, and outside the limits of a municipal 314
corporation, the townships by county and, where applicable, the 315
immediate geographic area in which it has facilities. The service 316
shall establish reasonable fees for limited basis participants. 317
Any utility that elects to participate on a limited basis shall 318
fully participate in and register the location of its underground 319
utility facilities with the appropriate protection service within 320
four years after the effective date of this amendment.321

       (B) Protection services, utilities, commercial excavators, 322
excavation equipment dealers, the public utilities commission of 323
Ohio, the board of building standards, local law enforcement 324
agencies, and fire departments should publicize the importance of 325
ascertaining the location of underground utility facilities before 326
excavating and the use of protection services to ascertain that 327
information.328

       (C) A protection service shall maintain records of 329
notifications received from developers, designers, and excavators, 330
and of its notifications made to utilities, developers, designers, 331
and excavators, under sections 3781.27 and 3781.28 of the Revised 332
Code. The records of a protection service shall identify by 333
reference number, the notifications it received regarding a 334
proposed excavation site, the notifications it provided regarding 335
a proposed excavation site, and the date and time of each 336
notification.337

       (D) Each utility fully participating in a protection service 338
pursuant to this section shall also participate in its affiliated 339
positive response system. Each utility participating in a 340
protection service on a limited basis shall directly communicate 341
to the excavator the presence or absence of any conflict between 342
the existing underground utility facilities and the proposed 343
excavation site.344

       Sec. 3781.261. Not later than four years after the effective 345
date of this section, every commercial excavator shall be a member 346
of a protection service, and that protection service shall impose 347
a reasonable membership fee.348

       Sec. 3781.27. Sections 3781.27 to 3781.32 do not apply to 349
"public improvements" as defined in section 153.64 of the Revised 350
Code.351

       (A) In order to ascertain the name of each utility with 352
underground utility facilities located at the proposed excavation 353
site and the types and approximate locationtolerance zones of 354
those facilities based on up-to-date records of the utility, any 355
developer who is planning a project that will require excavation 356
shall notify theeach protection service of the location of the 357
proposed excavation site.358

       (B) Except in the case of limited basis participants, the359
each protection service shall provide notice of the proposed 360
excavation to each participant in the service that has underground 361
utility facilities in the area of the proposed excavation site. In 362
the case of limited basis participants, theeach protection 363
service shall notify the developer of the name of each limited 364
basis participant with underground utility facilities within the 365
municipal corporation or township and county of the proposed 366
excavation site, and the developer shall contact that utility.367

       (C) Each utility that has any underground utility facilities 368
in the area of the proposed excavation site shall notify the 369
developer of the approximate locationstolerance zones and 370
description of the utility's underground utility facilities 371
located at the proposed excavation site, or that the utility does 372
not have any underground utility facilities at the site. The 373
utility shall make this notification within ten working days of 374
receiving a notice under division (B) of this section or by a 375
later date acceptable to the developer and utility. In the case of 376
an interstate hazardous liquid pipeline or an interstate gas 377
pipeline, the utility also shall provide written notice to the 378
developer of any special notification requirements.379

       (D) The utility shall determine if any relocation, support, 380
or removal, or protective steps beyond those described in 381
divisions (A)(1) to (D)(4) of section 3781.30 of the Revised Code 382
are required in order to prevent disturbance or interference with 383
the underground utility facilities during excavation. The utility 384
shall determine whether it will permit the developer to make those 385
adjustments, and, if the adjustments are to be made by the 386
utility, a reasonable amount of time necessary to make those 387
adjustments.388

       (E)(1) Based on the information provided pursuant to division 389
(C) of this section, the developer shall indicate the approximate 390
locationstolerance zones of underground utility facilities either 391
on or with the plans prepared for the project. The developer shall 392
include with the plans the names, addresses, and telephone numbers 393
of utilities with underground facilities at the excavation site, 394
indicating which utilities are limited basis participants; the 395
name and telephone number of theany appropriate protection 396
service; and any required adjustments as described in division (D) 397
of this section, including the reasonable time necessary for the 398
utility to make those adjustments. In the case of an interstate 399
hazardous liquid pipeline or an interstate gas pipeline, the 400
developer also shall include any special notification 401
requirements.402

       (2)(a) Except as otherwise provided in division (E)(2)(b) of 403
this section, the developer shall provide the plans to the404
commercial excavator before excavation beginsprior to entering 405
into a contract that involves such excavation. If the developer 406
does not prepare written plans or have any written plans prepared, 407
hethe developer shall otherwise provide the approximate locations408
tolerance zones, identifying information on the utilities, 409
information on required adjustments, and any special notification 410
requirements to the commercial excavator before excavation begins.411

       (b) When the developer is a utility, hethe utility shall 412
provide either the plans or the approximate locationstolerance 413
zones, identifying information on the utilities, information on 414
required adjustments, and any special notification requirements to 415
the excavator before excavation begins.416

       (3) The developer shall design the project taking into 417
account the approximate locationtolerance zone of existing 418
underground utility facilities in order to prevent, as far as is 419
practicable, disturbance or interference with those facilities.420

       (4) When a project includes installation of new underground 421
utility facilities, the developer shall attempt to design the 422
installation so that at least a twelve-inch clearance is provided 423
between the facilities. No facility shall be installed with less 424
than a twelve-inch clearance unless the owners of existing 425
facilities are notified, in writing, prior to installation.426

       (F)(1) This section does not apply in the case of a utility 427
making emergency repair to its own underground utility facility.428

       (2) This section does not apply in the case of the owner of 429
the types of real property identified in divisions (C)(1) to (4) 430
of section 3781.25 of the Revised Code, unless the owner employs a 431
designer to make written plans for work that will involve 432
excavation. If the owner employs a designer, the designer shall 433
contact the utility protection service and utilities that are 434
limited basis participants in accordance with divisions (A) and 435
(B) of this section, and shall include in or with the plans the 436
information required under division (E) of this section. The owner 437
shall provide that information to the excavator.438

       Sec. 3781.28.  (A) Except as otherwise provided in divisions 439
(C), (D), (E), and (F) of this section, at least forty-eight hours440
two working days, excluding the day the notice is given, but not 441
more than ten working days before commencing excavation, the 442
excavator shall notify theeach protection service of the location 443
of the excavation site and the date on which excavation is planned 444
to commence.445

       (B) On receipt of notice under division (A) of this section, 446
theeach protection service shall provide to each utility with 447
underground utility facilities located at the excavation site, 448
notice of the proposed excavation, except that in the case of a 449
limited basis participant in the service, the service shall notify 450
the excavator of the name of each limited basis participant with 451
underground utility facilities located in the municipal 452
corporation or township and county of the proposed excavation 453
site, and the excavator shall notify the limited basis participant 454
of the proposed excavation at least forty-eight hourstwo working 455
days, excluding the day the notice is given, but not more than ten 456
working days before commencing excavation. The excavator may make 457
this notification by telephone.458

       (C) In the case of an interstate hazardous liquids pipeline 459
or interstate gas pipeline, the excavator shall comply with the 460
special notice requirements of the public safety program of the 461
owner of the pipeline as indicated in the plans or otherwise 462
provided to the excavator in accordance with division (E) or 463
(F)(2) of section 3781.27 of the Revised Code.464

       (D) If it has been determined pursuant to division (D) of 465
section 3781.27 of the Revised Code that relocation, support, 466
removal, or protective steps are necessary, the excavator shall 467
provide earlier notice to the utility in order to provide the 468
utility with reasonable time to coordinate making the adjustments 469
with actual excavation.470

       (E) If an excavation will cover a large area and will 471
progress from one area to the next over a period of time, the 472
excavator shall provide written notice of excavation with 473
projected timelines for segments of the excavation as the 474
excavation progresses in order to coordinate the marking of 475
approximate locationstolerance zones with actual excavation 476
schedules. Under such circumstances, the utility and excavator 477
shall determine a mutually agreed upon marking schedule based on 478
the project schedule. Once such a schedule is established, the 479
marking and notification requirements set forth in division (A)(1) 480
of section 3781.29 of the Revised Code shall not apply.481

       (F)(1) In the case of a utility that is making an emergency 482
repair to its own underground utility system or a governmental 483
entity making an underground emergency repair to traffic control 484
devices, as defined in section 4511.01 of the Revised Code, used 485
on any street or highway under the entity's jurisdiction, the 486
utility or governmental entity shall notify theeach protection 487
service and each limited basis participant of the excavation site. 488
This notice need not occur before commencing excavation.489

       (2) In the case of an excavation at the site of real property 490
of the type described in divisions (C)(1) to (4) of section 491
3781.25 of the Revised Code:492

       (a) If the owner of the property is the excavator, this 493
section does not apply unless the excavation is planned for an 494
area where a utility easement is located or, a public 495
right-of-way;, or where utility facilities are known to serve the 496
property.497

       (b) If the owner of the property employs an excavator, the 498
excavator shall comply with the requirements of this section. If 499
the owner did not employ a designer to make written plans, the 500
excavator shall provide the notice required under this section to501
theeach protection service and to each utility that is a limited 502
basis participant in thea protection service that has underground 503
utility facilities within the municipal corporation or township 504
and county of the excavation site, as indicated by the protection 505
service.506

       Sec. 3781.29.  (A)(1) Except as otherwise provided in 507
division (A)(2) of this section, within forty-eight hourstwo 508
working days, excluding the day of receiving notice under section 509
3781.28 of the Revised Code, each utility shall review the status 510
of its facilities within the excavation site, locate and mark the 511
approximate locationtolerance zone of its underground utility 512
facilities at the excavation site in such a manner as to indicate 513
their course, and report the appropriate information to the 514
protection service for its positive response system. If a utility 515
does not mark its underground utility facilities or contact the 516
excavator within forty-eight hours of receiving notice under 517
section 3781.28 of the Revised Codethat time, the utility is 518
deemed to have given notice that it does not have any facilities 519
at the excavation site. If the utility cannot accurately mark the520
approximate locationtolerance zone, the utility shall mark the 521
approximate locationtolerance zone to the best of its ability, 522
notify the excavator using the positive response system that the 523
markings may not be accurate, and provide additional guidance to 524
the excavator in locating the facilities as needed during the 525
excavation.526

       (2) In the case of an interstate hazardous liquids pipeline 527
or an interstate gas pipeline, the owner of the pipeline shall 528
locate and mark the approximate locationtolerance zone of its 529
pipeline within the time frame established in the public safety 530
program of the owner.531

       (B) Unless a facility actually is uncovered or probed by the 532
utility or excavator, any indications of the depth of the facility 533
shall be treated as estimates only.534

       (C) A utility shall mark the approximate locationtolerance 535
zone of its underground facilities using the following color 536
codes:537

Type of Underground 538
Utility Facility Color 539
Electric power transmission Safety red 540
 and distribution 541
Gas transmission and distribution High visibility safety yellow 542
Oil transmission and distribution High visibility safety yellow 543
Dangerous materials, product High visibility safety yellow 544
 lines, and steam lines 545
Telephone and telegraph systems Safety alert orange 546
Police and fire communications Safety alert orange 547
Cable television Safety alert orange 548
Water systems Safety precaution blue 549
Slurry systems Safety precaution blue 550
Sewer lines Safety green. 551

       (D) Except as otherwise provided in divisions (E) and (F) of 552
this section, prior to notifying a protection service of the 553
proposed excavation, an excavator shall define and premark the 554
immediate area and the perimeter of the proposed excavation site.555
Proposed construction or excavation markings shall be made in 556
white through the use of an industry-recognized method such as 557
chalk-based paint, flags, stakes, or other method applicable to 558
the specific site and when possible shall indicate the excavator's 559
identity by name, abbreviation, or initial.560

       (E)(1) Before beginning an emergency excavation, or as soon 561
as possible thereafter, an excavator shall make every effort to 562
notify each protection service of the excavation. In providing 563
notification, the excavator shall provide, at a minimum:564

       (a) The name of the individual notifying the protection 565
service;566

       (b) The name, address, any electronic mail address, and any 567
telephone and facsimile numbers of the excavator;568

       (c) The specific location of the excavation site;569

       (d) A description of the excavation.570

       (2) Upon receiving the information set forth in division 571
(E)(1) of this section, the protection service shall provide the 572
excavator with a reference number and a list of utilities that the 573
protection service intends to notify. The protection service shall 574
immediately notify each utility that according to the registration 575
information provided under section 3781.26 of the Revised Code has 576
facilities located within the designated area of the emergency 577
excavation.578

       (3) Any utility notified of an emergency excavation may 579
inspect all of its underground utility facilities located at the 580
emergency excavation site and may take any otherwise lawful action 581
it considers necessary to prevent disturbance to or interference 582
with its facilities during excavation.583

       (F) An excavator is not required to premark a proposed 584
excavation as provided in division (D) of this section in any of 585
the following situations:586

       (1) The utility can determine the precise location, 587
direction, size, and length of the proposed excavation site by 588
referring to the notification provided by the protection service 589
pursuant to sections 3781.27 and 3781.28 of the Revised Code.590

       (2) The excavator and the affected utility have had an 591
on-site, pre-construction meeting for the purpose of premarking 592
the excavation site.593

       (3) The excavation involves replacing a pole that is within 594
five feet of the location of an existing pole.595

       (4) Premarking by the excavator would clearly interfere with 596
pedestrian or vehicular traffic control.597

       Sec. 3781.30. (A) When making excavations using traditional 598
or trenchless technologies, the excavator shall do all of the 599
following:600

       (A)(1) Maintain reasonable clearance between any underground 601
facility and the cutting edge or point of powered equipment;602

       (B)(2) Protect and preserve the markings of approximate 603
locationstolerance zones of underground utility facilities until 604
those markings are no longer required for proper and safe 605
excavations;606

       (C)(3) When approaching and excavating within the tolerance 607
zone of underground utility facilities while excavating with 608
powered equipment, require an individual other than the equipment 609
operator, to lookvisually monitor the excavation activity for any 610
signindication of the underground utility facility;611

       (D)(4) Conduct the excavation inwithin the vicinity of the 612
underground utility facilitytolerance zone in a careful and,613
prudent, and nondestructive manner, excavating by hand, ifwhen614
necessary, to determine and expose the precise location of the 615
facility and to prevent damage;616

       (E)(5) As soon as any damage is discovered, including gouges, 617
dents, or breaks to coatings, cable sheathes, and cathodic 618
protection anodes or wiring, report the type and location of the 619
damage to the utility and permit the utility a reasonable amount 620
of time to make necessary repairs;621

       (F)(6) Immediately report to the utility, the protection 622
service, and, if necessary, to the appropriate law enforcement 623
agencies and fire departments by calling 9-1-1, any damage to an 624
underground utility facility that results in escaping flammable, 625
corrosive, explosive, or toxic liquids or gas, and take reasonable 626
appropriate actions needed to protect persons and property and to 627
minimize safety hazards until those agencies and departments and 628
the utility arrive at the scene.629

       (B) When utilizing trenchless excavation methods, the 630
excavator must comply with the following requirements, in a manner 631
consistent with division (A) of this section:632

       (1) Expose and confirm all underground utility facilities at 633
each crossing point by the proposed excavation in a nondestructive 634
manner;635

       (2) Expose all parallel underground utility facilities in a 636
nondestructive manner at the beginning and end of each trenchless 637
excavation. Any parallel underground utility facility that is 638
within five feet of the proposed alignment shall also be exposed 639
every one hundred feet. Any parallel underground utility facility 640
that is within three feet of the proposed alignment shall be 641
exposed every fifty feet.642

       (3) Ensure that the final product installation maintains the 643
proper clearances of existing underground utility facilities as 644
determined pursuant to division (E)(4) of section 3781.27 of the 645
Revised Code.646

       Sec. 3781.31.  (A) When a utility marks the approximate 647
locationtolerance zone of its underground utility facilities in 648
accordance with division (A) of section 3781.29 of the Revised 649
Code, the utility may request that the excavator provide prior 650
notice to the utility of the actual commencement of the 651
excavation. An excavator that receives a request for notice under 652
this division shall provide the notice to the utility at least 653
twenty-four hoursone full working day prior to the commencement 654
of excavation. The excavator may make this notice by telephone.655

       (B) If the markings of approximate locationstolerance zones656
made under section 3781.29 of the Revised Code are destroyed or 657
removed before excavation is completed, the excavator shall notify 658
the utility through the protection service that the markings have 659
been destroyed or removed, and the utility shall remark the 660
approximate locations within forty-eight hours of the notice661
tolerance zones in accordance with division (A) of section 3781.29 662
of the Revised Code.663

       Sec. 3781.32.  (A) Any connections or tie-ins to existing 664
utility services within a public right-of-way shall comply with 665
permit requirements of the public agencyauthority that has 666
jurisdiction over that right-of-way.667

       (B) A developer shall not require, as a condition for 668
entering into a contract for a project that will require 669
excavation, that responsibility for performance of duties imposed 670
under sections 3781.25 to 3781.32 of the Revised Code shall be 671
assumed by a person other than the person on whom those duties are 672
imposed under those sections. This division does not prohibit a 673
utility from entering into any contract for the performance of 674
duties that are imposed on a utility under those sections.675

       (C) Nothing in sections 3728.25 to 3728.32 of the Revised 676
Code shall be construed to require a utility to relocate its 677
underground utility facilities located at an excavation site.678

       Section 2.  That existing sections 153.64, 3781.25, 3781.26, 679
3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 of the 680
Revised Code are hereby repealed.681