As Introduced

129th General Assembly
Regular Session
2011-2012
S. B. No. 354


Senator Coley 

Cosponsors: Senators LaRose, Seitz, Wagoner, Hite 

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 sections 3781.261 and 3781.271 of the 3
Revised Code to modify the call before you dig 4
notification 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
sections 3781.261 and 3781.271 of the Revised Code be enacted to 8
read as 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 a private septic systemssystem in a one-family or 207
two-familymulti-family dwelling utilized only for that dwelling 208
and not connected to any other system.209

       (C) "Utility" means any owner or operator, or an agent of an 210
owner or operator, of an underground utility facility, including 211
any public authority as defined in section 153.64 of the Revised 212
Code, that owns or operates an underground utility facility, 213
except. "Utility" does not include the owners of the following 214
types of real property with respect to any underground utility 215
facility located on that property:216

       (1) The owner of a single-family or two-, three-, or 217
four-unit residential dwelling;218

       (2) The owner of an apartment complex;219

       (3) The owner of a commercial or industrial building or 220
complex of buildings, including but not limited to, factories and 221
shopping centers;222

       (4) The owner of a farm.223

       (D) "Approximate location""Tolerance zone" means the site of 224
the underground utility facility including the width of the 225
underground utility facility plus eighteen inches on each side226
all sides of the facility.227

       (E) "DaysWorking days" excludes Saturdays, Sundays, and 228
legal holidays as defined in section 1.14 of the Revised Code and 229
"hours" excludes hours on Saturdays, Sundays, and legal holidays.230

       (F) "Designer" means an engineer, architect, landscape 231
architect, contractor, or other person who develops plans or 232
designs for real property improvement or any other activity that 233
will involve excavation.234

       (G) "Developer" means the person for whom the excavation is 235
made and who will own or be the lessee of any improvement that is 236
the object of the excavation.237

       (H) "Excavation" means the use of hand tools, powered 238
equipment, or explosives to move earth, rock, or other materials 239
in order to penetrate or bore or drill into the earth, or to 240
demolish any structure whether or not it is intended that the 241
demolition will disturb the earth. "Excavation" includes such 242
agricultural operations as the installation of drain tile, but 243
excludes agricultural operations such as tilling that do not 244
penetrate the earth to a depth of more than twelve inches. 245
"Excavation" excludes any activity by a governmental entity which 246
does not penetrate the earth to a depth of more than twelve 247
inches. "Excavation" excludes any underground mining operations 248
that do not involve disturbance to the earth's surface.249

       (I) "Excavation site" means the area within which excavation 250
will be performed.251

       (J) "Excavator" means the contractor or other person who is252
or persons responsible for making the actual excavation.253

       (K) "Interstate gas pipeline" means an interstate gas 254
pipeline subject to the "Natural Gas Pipeline Safety Act of 1968," 255
82 Stat. 720, 49 U.S.C. 1671, as amended.256

       (L) "Interstate hazardous liquids pipeline" means an 257
interstate hazardous liquids pipeline subject to the "Hazardous 258
Liquid Pipeline Safety Act of 1979," 93 Stat. 1003, 49 U.S.C. 259
2002, as amended.260

       (M) "Special notification requirements" means requirements 261
for notice to an owner of an interstate hazardous liquids pipeline 262
or an interstate gas pipeline that must be made prior to 263
commencing excavation and pursuant to the owner's public safety 264
program adopted under federal law.265

       (N) "Commercial excavator" means any excavator, excluding a 266
utility as defined in this section, that satisfies both of the 267
following:268

       (1) For compensation, performs, directs, supervises, or is 269
responsible for the excavation, construction, improvement, 270
renovation, repair, or maintenance on a construction project and 271
holds out or represents oneself as qualified or permitted to act 272
as such;273

       (2) Employs tradespersons who actually perform excavation, 274
construction, improvement, renovation, repair, or maintenance on a 275
construction project.276

       (O) "Person" has the same meaning as in section 1.59 of the 277
Revised Code and also includes a public authority.278

       (P) "Positive response system" means an automated system 279
facilitated by a protection service allowing a utility to 280
communicate to an excavator the presence or absence of any 281
conflict between the existing underground utility facilities and 282
the proposed excavation site.283

       (Q) "Project" means any undertaking by a private party of an 284
improvement requiring excavation.285

       (R) "Public authority" has the same meaning as in section 286
153.64 of the Revised Code.287

       (S) "Improvement" means any construction, reconstruction, 288
improvement, enlargement, alteration, or repair of a building, 289
highway, drainage system, water system, road, street, alley, 290
sewer, ditch, sewage disposal plant, water works, and all other 291
structures or works of any nature.292

       (T) "Emergency" means an unexpected occurrence causing a 293
disruption or damage to an underground utility facility that 294
requires immediate repair or a situation that creates a clear and 295
imminent danger that demands immediate action to prevent or 296
mitigate loss of or damage to life, health, property, or essential 297
public services.298

       (U) "Nondestructive manner" means using low-impact, low-risk 299
technologies such as hand tools, or hydro or air vacuum excavation 300
equipment.301

       Sec. 3781.26.  (A) Each utility that owns or operates 302
underground utility facilities shall participate in and register 303
the location of its underground utility facilities with a 304
protection service that serves the area where the facilities are 305
located. A utility may elect to participate in the service on a 306
limited basis and if it does so, it shall register the location of 307
its underground utility facilities only by identifying the 308
municipal corporations, and outside the limits of a municipal 309
corporation, the townships by county and, where applicable, the 310
immediate geographic area in which it has facilities. The service 311
shall establish reasonable fees for limited basis participants. 312
Any utility that elects to participate on a limited basis shall 313
fully participate in and register the location of its underground 314
utility facilities with the appropriate protection service within 315
four years after the effective date of this amendment.316

       (B) Protection services, utilities, commercial excavators, 317
excavation equipment dealers, the public utilities commission of 318
Ohio, the board of building standards, local law enforcement 319
agencies, and fire departments should publicize the importance of 320
ascertaining the location of underground utility facilities before 321
excavating and the use of protection services to ascertain that 322
information.323

       (C) A protection service shall maintain records of 324
notifications received from developers, designers, and excavators, 325
and of its notifications made to utilities, developers, designers, 326
and excavators, under sections 3781.27 and 3781.28 of the Revised 327
Code. The records of a protection service shall identify by 328
reference number, the notifications it received regarding a 329
proposed excavation site, the notifications it provided regarding 330
a proposed excavation site, and the date and time of each 331
notification.332

       (D) Each utility fully participating in a protection service 333
pursuant to this section shall also participate in its affiliated 334
positive response system. Each utility participating in a 335
protection service on a limited basis shall directly communicate 336
to the excavator the presence or absence of any conflict between 337
the existing underground utility facilities and the proposed 338
excavation site.339

       Sec. 3781.261. (A) The director of commerce shall establish a 340
certification program for excavators that use a positive response 341
service. The director shall establish the program by rule, in 342
conjunction with statewide organizations representing excavators 343
in this state. The program shall measure competency in 344
understanding the requirements of sections 3781.25 to 3781.32 of 345
the Revised Code. The statewide organizations shall conduct the 346
program. 347

       (B) Every excavator that uses a positive response system 348
shall have at least one employee holding a current and valid 349
certificate under the program.350

        (C) A certificate shall be valid for a three-year period.351

        (D) There may be a fee for the certification program, not to 352
exceed one hundred dollars for each individual. The amount 353
received from fees shall be equally divided among each protection 354
service and each organization conducting the program. A protection 355
service shall use the amount received from fees for public 356
outreach, public education, and the protection service's 357
affiliated positive response system. 358

       Sec. 3781.27. Sections 3781.27 to 3781.32 do not apply to 359
"public improvements" as defined in section 153.64 of the Revised 360
Code.361

       (A) In order to ascertain the name of each utility with 362
underground utility facilities located at the proposed excavation 363
site and the types and approximate locationtolerance zones of 364
those facilities based on up-to-date records of the utility, any 365
developer who is planning a project that will require excavation 366
shall notify theeach protection service of the location of the 367
proposed excavation site.368

       (B) Except in the case of limited basis participants, the369
each protection service shall provide notice of the proposed 370
excavation to each participant in the service that has underground 371
utility facilities in the area of the proposed excavation site. In372
Except as provided in section 3781.271 of the Revised Code, in the 373
case of limited basis participants, theeach protection service 374
shall notify the developer of the name of each limited basis 375
participant with underground utility facilities within the 376
municipal corporation or township and county of the proposed 377
excavation site, and the developer shall contact that utility.378

       (C) Each utility that has any underground utility facilities 379
in the area of the proposed excavation site shall notify the 380
developer of the approximate locationstolerance zones and 381
description of the utility's underground utility facilities 382
located at the proposed excavation site, or that the utility does 383
not have any underground utility facilities at the site. The 384
utility shall make this notification within ten working days of 385
receiving a notice under division (B) of this section or by a 386
later date acceptable to the developer and utility. In the case of 387
an interstate hazardous liquid pipeline or an interstate gas 388
pipeline, the utility also shall provide written notice to the 389
developer of any special notification requirements.390

       (D) The utility shall determine if any relocation, support, 391
or removal, or protective steps beyond those described in 392
divisions (A)(1) to (D)(4) of section 3781.30 of the Revised Code 393
are required in order to prevent disturbance or interference with 394
the underground utility facilities during excavation. The utility 395
shall determine whether it will permit the developer to make those 396
adjustments, and, if the adjustments are to be made by the 397
utility, a reasonable amount of time necessary to make those 398
adjustments.399

       (E)(1) Based on the information provided pursuant to division 400
(C) of this section, the developer shall indicate the approximate 401
locationstolerance zones of underground utility facilities either 402
on or with the plans prepared for the project. The developer shall 403
include with the plans the names, addresses, and telephone numbers 404
of utilities with underground facilities at the excavation site, 405
indicating which utilities are limited basis participants; the 406
name and telephone number of theany appropriate protection 407
service; and any required adjustments as described in division (D) 408
of this section, including the reasonable time necessary for the 409
utility to make those adjustments. In the case of an interstate 410
hazardous liquid pipeline or an interstate gas pipeline, the 411
developer also shall include any special notification 412
requirements.413

       (2)(a) Except as otherwise provided in division (E)(2)(b) of 414
this section, the developer shall provide the plans to the415
commercial excavator before excavation beginsprior to entering 416
into a contract that involves such excavation. If the developer 417
does not prepare written plans or have any written plans prepared, 418
hethe developer shall otherwise provide the approximate locations419
tolerance zones, identifying information on the utilities, 420
information on required adjustments, and any special notification 421
requirements to the commercial excavator before excavation begins.422

       (b) When the developer is a utility, hethe utility shall 423
provide either the plans or the approximate locationstolerance 424
zones, identifying information on the utilities, information on 425
required adjustments, and any special notification requirements to 426
the excavator before excavation begins.427

       (3) The developer shall design the project taking into 428
account the approximate locationtolerance zone of existing 429
underground utility facilities in order to prevent, as far as is 430
practicable, disturbance or interference with those facilities.431

       (4) When a project includes installation of new underground 432
utility facilities, the developer shall attempt to design the 433
installation so that at least a twelve-inch clearance is provided 434
between the facilities. No facility shall be installed with less 435
than a twelve-inch clearance unless the owners of existing 436
facilities are notified, in writing, prior to installation.437

       (F)(1) This section does not apply in the case of a utility 438
making emergency repair to its own underground utility facility.439

       (2) This section does not apply in the case of the owner of 440
the types of real property identified in divisions (C)(1) to (4) 441
of section 3781.25 of the Revised Code, unless the owner employs a 442
designer to make written plans for work that will involve 443
excavation. If the owner employs a designer, the designer shall 444
contact the utility protection service and utilities that are 445
limited basis participants in accordance with divisions (A) and 446
(B) of this section, and shall include in or with the plans the 447
information required under division (E) of this section. The owner 448
shall provide that information to the excavator.449

       Sec. 3781.271. Beginning on July 1, 2013, each protection 450
service shall reasonably modify its affiliated positive response 451
system so as to permit the reasonable identification of the 452
location of a proposed excavation site in a manner in which the 453
protection service may then notify any potentially affected 454
limited basis participants.455

       Sec. 3781.28.  (A) Except as otherwise provided in divisions 456
(C), (D), (E), and (F) of this section, at least forty-eight hours 457
but not more than ten working days before commencing excavation, 458
the excavator shall notify theeach protection service of the 459
location of the excavation site and the date on which excavation 460
is planned to commence.461

       (B) On receipt of notice under division (A) of this section, 462
theeach protection service shall provide to each utility with 463
underground utility facilities located at the excavation site, 464
notice of the proposed excavation, except that in the case of a 465
limited basis participant in the service, the service shall notify 466
the excavator of the name of each limited basis participant with 467
underground utility facilities located in the municipal 468
corporation or township and county of the proposed excavation 469
site, and the excavator shall notify the limited basis participant 470
of the proposed excavation at least forty-eight hours but not more 471
than ten working days before commencing excavation. The excavator 472
may make this notification by telephone.473

       (C) In the case of an interstate hazardous liquids pipeline 474
or interstate gas pipeline, the excavator shall comply with the 475
special notice requirements of the public safety program of the 476
owner of the pipeline as indicated in the plans or otherwise 477
provided to the excavator in accordance with division (E) or 478
(F)(2) of section 3781.27 of the Revised Code.479

       (D) If it has been determined pursuant to division (D) of 480
section 3781.27 of the Revised Code that relocation, support, 481
removal, or protective steps are necessary, the excavator shall 482
provide earlier notice to the utility in order to provide the 483
utility with reasonable time to coordinate making the adjustments 484
with actual excavation.485

       (E) If an excavation will cover a large area and will 486
progress from one area to the next over a period of time, the 487
excavator shall provide written notice of excavation with 488
projected timelines for segments of the excavation as the 489
excavation progresses in order to coordinate the marking of 490
approximate locationstolerance zones with actual excavation 491
schedules. Under such circumstances, the utility and excavator 492
shall determine a mutually agreed upon marking schedule based on 493
the project schedule. Once such a schedule is established, the 494
marking and notification requirements set forth in division (A)(1) 495
of section 3781.29 of the Revised Code shall not apply.496

       (F)(1) In the case of a utility that is making an emergency 497
repair to its own underground utility system or a governmental 498
entity making an underground emergency repair to traffic control 499
devices, as defined in section 4511.01 of the Revised Code, used 500
on any street or highway under the entity's jurisdiction, the 501
utility or governmental entity shall notify theeach protection 502
service and each limited basis participant of the excavation site. 503
This notice need not occur before commencing excavation.504

       (2) In the case of an excavation at the site of real property 505
of the type described in divisions (C)(1) to (4) of section 506
3781.25 of the Revised Code:507

       (a) If the owner of the property is the excavator, this 508
section does not apply unless the excavation is planned for an 509
area where a utility easement is located or, a public 510
right-of-way;, or where utility facilities are known to serve the 511
property.512

       (b) If the owner of the property employs an excavator, the 513
excavator shall comply with the requirements of this section. If 514
the owner did not employ a designer to make written plans, the 515
excavator shall provide the notice required under this section to516
theeach protection service and to each utility that is a limited 517
basis participant in thea protection service that has underground 518
utility facilities within the municipal corporation or township 519
and county of the excavation site, as indicated by the protection 520
service.521

       Sec. 3781.29.  (A)(1) Except as otherwise provided in 522
division (A)(2) of this section, within forty-eight hours of 523
receiving notice under section 3781.28 of the Revised Code, each 524
utility shall review the status of its facilities within the 525
excavation site, locate and mark the approximate location526
tolerance zone of its underground utility facilities at the 527
excavation site in such a manner as to indicate their course, and 528
report the appropriate information to the protection service for 529
its positive response system. If a utility does not mark its 530
underground utility facilities or contact the excavator within 531
forty-eight hours of receiving notice under section 3781.28 of the 532
Revised Codethat time, the utility is deemed to have given notice 533
that it does not have any facilities at the excavation site. If 534
the utility cannot accurately mark the approximate location535
tolerance zone, the utility shall mark the approximate location536
tolerance zone to the best of its ability, notify the excavator 537
using the positive response system that the markings may not be 538
accurate, and provide additional guidance to the excavator in 539
locating the facilities as needed during the excavation.540

       (2) In the case of an interstate hazardous liquids pipeline 541
or an interstate gas pipeline, the owner of the pipeline shall 542
locate and mark the approximate locationtolerance zone of its 543
pipeline within the time frame established in the public safety 544
program of the owner.545

       (B) Unless a facility actually is uncovered or probed by the 546
utility or excavator, any indications of the depth of the facility 547
shall be treated as estimates only.548

       (C) A utility shall mark the approximate locationtolerance 549
zone of its underground facilities using the following color 550
codes:551

Type of Underground 552
Utility Facility Color 553
Electric power transmission Safety red 554
 and distribution 555
Gas transmission and distribution High visibility safety yellow 556
Oil transmission and distribution High visibility safety yellow 557
Dangerous materials, product High visibility safety yellow 558
 lines, and steam lines 559
Telephone and telegraph systems Safety alert orange 560
Police and fire communications Safety alert orange 561
Cable television Safety alert orange 562
Water systems Safety precaution blue 563
Slurry systems Safety precaution blue 564
Sewer lines Safety green. 565

       (D) Except as otherwise provided in divisions (E) and (F) of 566
this section, prior to notifying a protection service of the 567
proposed excavation, an excavator shall define and premark the 568
immediate area and the perimeter of the proposed excavation site.569
Proposed construction or excavation markings shall be made in 570
white through the use of an industry-recognized method such as 571
chalk-based paint, flags, stakes, or other method applicable to 572
the specific site and when possible shall indicate the excavator's 573
identity by name, abbreviation, or initial.574

       (E)(1) Before beginning an emergency excavation, or as soon 575
as possible thereafter, an excavator shall make every effort to 576
notify each protection service of the excavation. In providing 577
notification, the excavator shall provide, at a minimum:578

       (a) The name of the individual notifying the protection 579
service;580

       (b) The name, address, any electronic mail address, and any 581
telephone and facsimile numbers of the excavator;582

       (c) The specific location of the excavation site;583

       (d) A description of the excavation.584

       (2) Upon receiving the information set forth in division 585
(E)(1) of this section, the protection service shall provide the 586
excavator with a reference number and a list of utilities that the 587
protection service intends to notify. The protection service shall 588
immediately notify each utility that according to the registration 589
information provided under section 3781.26 of the Revised Code has 590
facilities located within the designated area of the emergency 591
excavation.592

       (3) Any utility notified of an emergency excavation may 593
inspect all of its underground utility facilities located at the 594
emergency excavation site and may take any otherwise lawful action 595
it considers necessary to prevent disturbance to or interference 596
with its facilities during excavation.597

       (F) An excavator is not required to premark a proposed 598
excavation as provided in division (D) of this section in any of 599
the following situations:600

       (1) The utility can determine the precise location, 601
direction, size, and length of the proposed excavation site by 602
referring to the notification provided by the protection service 603
pursuant to sections 3781.27 and 3781.28 of the Revised Code.604

       (2) The excavator and the affected utility have had an 605
on-site, pre-construction meeting for the purpose of premarking 606
the excavation site.607

       (3) The excavation involves replacing a pole that is within 608
five feet of the location of an existing pole.609

       (4) Premarking by the excavator would clearly interfere with 610
pedestrian or vehicular traffic control.611

       Sec. 3781.30. (A) When making excavations using traditional 612
or trenchless technologies, the excavator shall do all of the 613
following:614

       (A)(1) Maintain reasonable clearance between any underground 615
facility and the cutting edge or point of powered equipment;616

       (B)(2) Protect and preserve the markings of approximate 617
locationstolerance zones of underground utility facilities until 618
those markings are no longer required for proper and safe 619
excavations;620

       (C)(3) When approaching and excavating within the tolerance 621
zone of underground utility facilities while excavating with 622
powered equipment, require an individual other than the equipment 623
operator, to lookvisually monitor the excavation activity for any 624
signindication of the underground utility facility;625

       (D)(4) Conduct the excavation inwithin the vicinity of the 626
underground utility facilitytolerance zone in a careful and,627
prudent, and nondestructive manner, excavating by hand, ifwhen628
necessary, to determine and expose the precise location of the 629
facility and to prevent damage;630

       (E)(5) As soon as any damage is discovered, including gouges, 631
dents, or breaks to coatings, cable sheathes, and cathodic 632
protection anodes or wiring, report the type and location of the 633
damage to the utility and permit the utility a reasonable amount 634
of time to make necessary repairs;635

       (F)(6) Immediately report to the utility, the protection 636
service, and, if necessary, to the appropriate law enforcement 637
agencies and fire departments by calling 9-1-1, any damage to an 638
underground utility facility that results in escaping flammable, 639
corrosive, explosive, or toxic liquids or gas, and take reasonable 640
appropriate actions needed to protect persons and property and to 641
minimize safety hazards until those agencies and departments and 642
the utility arrive at the scene.643

       (B) When utilizing trenchless excavation methods, the 644
excavator must comply with the following requirements, in a manner 645
consistent with division (A) of this section:646

       (1) Expose and confirm all underground utility facilities at 647
each crossing point by the proposed excavation in a nondestructive 648
manner;649

       (2) Expose all parallel underground utility facilities in a 650
nondestructive manner at the beginning and end of each trenchless 651
excavation. Any parallel underground utility facility that is 652
within five feet of the proposed alignment shall also be exposed 653
every one hundred feet. Any parallel underground utility facility 654
that is within three feet of the proposed alignment shall be 655
exposed every fifty feet.656

       (3) Ensure that the final product installation maintains the 657
proper clearances of existing underground utility facilities as 658
determined pursuant to division (E)(4) of section 3781.27 of the 659
Revised Code.660

       Sec. 3781.31.  (A) When a utility marks the approximate 661
locationtolerance zone of its underground utility facilities in 662
accordance with division (A) of section 3781.29 of the Revised 663
Code, the utility may request that the excavator provide prior 664
notice to the utility of the actual commencement of the 665
excavation. An excavator that receives a request for notice under 666
this division shall provide the notice to the utility at least 667
twenty-four hoursone full working day prior to the commencement 668
of excavation. The excavator may make this notice by telephone.669

       (B) If the markings of approximate locationstolerance zones670
made under section 3781.29 of the Revised Code are destroyed or 671
removed before excavation is completed, the excavator shall notify 672
the utility through the protection service that the markings have 673
been destroyed or removed, and the utility shall remark the 674
approximate locations within forty-eight hours of the notice675
tolerance zones in accordance with division (A) of section 3781.29 676
of the Revised Code.677

       Sec. 3781.32.  (A) Any connections or tie-ins to existing 678
utility services within a public right-of-way shall comply with 679
permit requirements of the public agencyauthority that has 680
jurisdiction over that right-of-way.681

       (B) A developer shall not require, as a condition for 682
entering into a contract for a project that will require 683
excavation, that responsibility for performance of duties imposed 684
under sections 3781.25 to 3781.32 of the Revised Code shall be 685
assumed by a person other than the person on whom those duties are 686
imposed under those sections. This division does not prohibit a 687
utility from entering into any contract for the performance of 688
duties that are imposed on a utility under those sections.689

       (C) Nothing in sections 3728.25 to 3728.32 of the Revised 690
Code shall be construed to require a utility to relocate its 691
underground utility facilities located at an excavation site.692

       Section 2.  That existing sections 153.64, 3781.25, 3781.26, 693
3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 of the 694
Revised Code are hereby repealed.695