To amend sections 121.04, 153.64, 3781.25, 3781.26, 3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 and to enact sections 3781.261, 3781.281, and 3781.33 to 3781.38 of the Revised Code to modify the call before you dig notification system and to create the Underground Protection Commission of Ohio and the State Underground Protection Advisory Committee.

Section 1. That sections 121.04, 153.64, 3781.25, 3781.26, 3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 be amended and sections 3781.261, 3781.281, 3781.33, 3781.34, 3781.35, 3781.36, 3781.37, and 3781.38 of the Revised Code be enacted to read as follows:

Sec. 121.04.  Offices are created within the several departments as follows:

In the department of commerce:

In the department of administrative services:

In the department of agriculture:

Chiefs of divisions as follows:

In the department of natural resources:

Chiefs of divisions as follows:

In the department of insurance:

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

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

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

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

(4) "Underground utility protection Protection service" means a notification center not an owner of an underground utility facility, existing that complies with the following:

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

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

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

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

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

(B) In any public improvement which may involve underground utility facilities, the public authority, prior to preparing plans and specifications, shall contact the registered underground utility each protection services service and the any owners of underground utility facilities that are not members of a registered underground utility protection service for the existence and location of all underground utility facilities within the construction area. The public authority shall include, in the plans and specifications for such improvement, the identity and location of the existing underground utility facilities located in the construction area as provided to the public authority by the owner of the underground utility facility and the name, address, and telephone number of each owner of any underground utility facilities in the construction area that does not subscribe to a registered underground utility protection service. Any anticipated temporary or permanent relocation of underground utility facilities deemed necessary by the public authority shall be negotiated or arranged by the public authority with the owners of the underground utility facilities prior to the start of construction. If a temporary or permanent relocation of utility facilities is necessary, the owner of the underground utility facility shall be given a reasonable time to move such utility facilities unless the contractor to whom the contract for a public improvement is awarded or its subcontractor agrees with the owner of the underground utility facility to coordinate relocation with construction operations. The public authority, within ten calendar days after award of a contract for a public improvement, shall notify in writing all owners of underground utility facilities known to be located in the construction area of the public improvement of the name and address of the contractor to whom the contract for the public improvement was awarded. Where notice is given in writing by certified mail, the return receipt, signed by any person to whom the notice is delivered, shall be conclusive proof of notice.

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

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

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

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

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

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

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

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

Sec. 3781.25.  As used in sections 3781.25 to 3781.32 3781.38 of the Revised Code:

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

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

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

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

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

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

(2) The owner of an apartment complex;

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

(4) The owner of a farm.

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

(E) "Days Working days" excludes Saturdays, Sundays, and legal holidays as defined in section 1.14 of the Revised Code and "hours" excludes hours on Saturdays, Sundays, and legal holidays. A single working day begins at midnight and has a duration of twenty-four hours.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(V) "Habitual or willful non-complier" means a person, utility, or commercial excavator that has consistently or continually failed to comply with or purposefully or knowingly disregarded the provisions set forth in sections 3781.25 to 3781.32 of the Revised Code.

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

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

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

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

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

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

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

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

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

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

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

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

(b) When the developer is a utility, he the utility shall provide either the plans or the approximate locations tolerance zones, identifying information on the utilities, information on required adjustments, and any special notification requirements to the excavator before excavation begins.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sec. 3781.281. Each protection service shall annually allocate a portion of its revenue generated from membership fees and deposit it in the state underground protection fund in accordance with section 3781.38 of the Revised Code. The aggregate revenue annually deposited in the fund from all protection services pursuant to this section shall not exceed fifty thousand dollars.

Sec. 3781.29.  (A)(1) Except as otherwise provided in division (A)(2) of this section, within forty-eight hours two working days, excluding the day of receiving notice under section 3781.28 of the Revised Code, each utility shall review the status of its facilities within the excavation site, locate and mark the approximate location tolerance zone of its underground utility facilities at the excavation site in such a manner as to indicate their course, and report the appropriate information to the protection service for its positive response system. If a utility does not mark its underground utility facilities or contact the excavator within forty-eight hours of receiving notice under section 3781.28 of the Revised Code that time, the utility is deemed to have given notice that it does not have any facilities at the excavation site. If the utility cannot accurately mark the approximate location tolerance zone, the utility shall mark the approximate location tolerance zone to the best of its ability, notify the excavator using the positive response system that the markings may not be accurate, and provide additional guidance to the excavator in locating the facilities as needed during the excavation. If the utility cannot locate its underground utility facilities or cannot estimate them with reasonable accuracy and provide notice of their locations to the excavator, and any damage occurs to the underground utility facility through the excavation, the utility operating such an underground utility facility shall be responsible for repairing such damages and shall be liable for any injury of persons or property resulting from the damaged underground utility facility.

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

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

(C) A utility shall mark the approximate location tolerance zone of its underground facilities using the following color codes:

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

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

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

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

(c) The specific location of the excavation site;

(d) A description of the excavation.

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

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

(F) An excavator is not required to pre-mark a proposed excavation as provided in division (D) of this section in any of the following situations:

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

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

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

(4) Pre-marking by the excavator would clearly interfere with pedestrian or vehicular traffic control.

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

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

(B)(2) Protect and preserve the markings of approximate locations tolerance zones of underground utility facilities until those markings are no longer required for proper and safe excavations;

(C)(3) When approaching and excavating within the tolerance zone of underground utility facilities while excavating with powered equipment, require an individual other than the equipment operator, to look visually monitor the excavation activity for any sign indication of the underground utility facility;

(D)(4) Conduct the excavation in within the vicinity of the underground utility facility tolerance zone in a careful and, prudent, and nondestructive manner, excavating by hand, if when necessary, to determine and expose the precise location of the facility and to prevent damage;

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

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

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

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

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

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

Sec. 3781.31.  (A) When a utility marks the approximate location tolerance zone of its underground utility facilities in accordance with division (A) of section 3781.29 of the Revised Code, the utility may request that the excavator provide prior notice to the utility of the actual commencement of the excavation. An excavator that receives a request for notice under this division shall provide the notice to the utility at least twenty-four hours one full working day prior to the commencement of excavation. The excavator may make this notice by telephone.

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

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

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

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

Sec. 3781.33. (A)(1) There is hereby created the state underground protection advisory committee consisting of nine members as appointed pursuant to this section. Five members shall constitute a quorum. The governor shall make initial appointments within thirty days after the effective date of this section. Of the initial appointments, three shall be for terms ending on January 31, 2011, three shall be for terms ending on January 31, 2012, and three shall be for terms ending on January 31, 2013. Thereafter, terms of office shall be for three years, with each term ending on the same day of the same month as did the term it succeeds.

(2) Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. Members may be reappointed, provided that no more than two terms can be served consecutively and a period equal to one term must elapse before a member is eligible to serve another term.

(3) Vacancies shall be filled in the manner provided for original appointments. Any member appointed to fill a vacancy occurring prior to the expiration date of the term for which the member's predecessor was appointed shall hold office for the remainder of the term. A member shall continue in office subsequent to the expiration date of the member's term until a successor takes office or until a period of sixty days has elapsed, whichever occurs first.

(B) The committee shall consist of nine members appointed by the governor in the following manner:

(1) The governor shall appoint one person to represent the interests of commercial excavators from a list of at least three provided to the governor by the Ohio contractors association or a successor organization representing the interest of commercial excavators in this state;

(2) The board of trustees of the Ohio utilities protection service shall provide the governor with a list consisting of at least nine representatives of utilities subject to regulation by the public utilities commission and companies not subject to regulation by the commission that are engaged in the transportation of natural gas by pipeline. At least three individuals on the list shall represent the interest of a gas company, natural gas company, or company not subject to regulation by the commission that is engaged in the transportation of natural gas by pipeline; at least three individuals on the list shall represent the interests of an electric light company; and at least three individuals on the list shall represent the interest of a telephone or telegraph company. For purposes of this division, "gas company," "natural gas company," "electric light company," "telephone company," and "telegraph company" have the same meaning as in section 4905.03 of the Revised Code. The governor shall appoint from the list one person representing a gas company, natural gas company, or company not subject to regulation by the commission that is engaged in the transportation of natural gas by pipeline; one person representing an electric light company; and one person representing a telephone or telegraph company to serve on the committee. No member of the board of trustees of the Ohio utilities protection service shall be appointed to the committee.

(3) The governor shall appoint one individual representing the public utilities commission from a list of at least three such individuals provided by the chairperson of the public utilities commission.

(4) The governor shall appoint one individual representing the interests of utilities not subject to regulation by the public utilities commission from a list of at least three provided by the Ohio oil and gas association or a successor organization.

(5) The governor shall appoint one individual representing contract facility locators from a list of at least three such individuals provided to the governor by the organization representing their interests in this state.

(6) The governor shall appoint one individual from a list of at least three such individuals provided to the governor by the department of transportation in conjunction with the county engineers association of Ohio or a successor organization.

(7) The governor shall appoint one individual from a list of at least three provided by the organization representing the interests of municipal governments in this state.

(C) The representative from the public utilities commission shall serve as the chairperson for the initial year of the committee's existence. Thereafter, the committee members shall elect the committee chairperson.

(D) Committee members shall not be subject to the requirements set forth in section 102.02 of the Revised Code. Absent willful misconduct, committee members shall be immune from civil liability for any act or omission in the performance of their duties while serving on the committee.

(E) Each committee member shall receive reimbursement for actual and necessary expenses incurred in the performance of official business and for each mile necessarily traveled in the performance of official duties.

Sec. 3781.34. (A) The state underground protection advisory committee shall provide enforcement recommendations for sections 3781.25 to 3781.32 of the Revised Code and recommend resolutions of complaints regarding discriminatory or unfair rates to the underground protection commission of Ohio pursuant to section 3781.37 of the Revised Code.

(B) The underground protection advisory committee shall meet at least four times per year and any additional times as, in its judgment, are necessary. The committee may hold meetings at the location and time it selects.

(C) As appropriate, each protection service and the department of commerce shall provide the committee with meeting space, staff services, and other technical and administrative assistance within their respective areas of expertise. Such assistance may include providing the committee with data, research, statistics, and analysis and providing the committee with investigators and hearing examiners.

The protection services, in conjunction with the underground protection commission of Ohio, shall maintain any and all records on behalf of the committee and make them available to the public upon proper request.

(D) The committee may, as necessary, adopt rules to govern its procedures and shall adopt rules to govern the procedure by which each protection service shall forward the complaints it receives to the committee pursuant to section 3781.37 of the Revised Code.

(E) The committee may adopt an identifying mark, such as a seal, logo, or brand.

Sec. 3781.35.  (A)(1) There is hereby created within the department of commerce the underground protection commission of Ohio, consisting of three members appointed by the governor, with the advice and consent of the senate. Two members of the commission shall constitute a quorum. The governor shall make initial appointments to the commission within thirty days after the effective date of this section. Of the initial appointments, one shall be for a term ending January 31, 2011, one shall be for a term ending January 31, 2012, and one shall be for a term ending January 31, 2013. Thereafter, terms of office shall be for three years, with each term ending on the same day of the same month as did the term that it succeeds.

(2) Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. Members may be reappointed, provided that not more than two terms can be served consecutively and a period equal to one term must elapse after two consecutive terms before a member is eligible to serve another term.

(3) Vacancies shall be filled in the manner provided for original appointments. Any member appointed to fill a vacancy occurring prior to the expiration date of the term for which the member's predecessor was appointed shall hold office for the remainder of that term. A member shall continue in office subsequent to the expiration date of the member's term until a successor takes office or until a period of sixty days has elapsed, whichever occurs first.

(B) The governor shall appoint members of the commission in the following manner:

(1) One individual representing the office of the attorney general;

(2) One individual representing the department of commerce;

(3) One individual representing the interests of the public.

(C) The commission shall elect its chairperson at its first meeting to serve a one-year term. Thereafter, the commission members shall annually elect the commission chairperson.

(D) Commission members shall not be subject to the requirements set forth in section 102.02 of the Revised Code. Absent willful misconduct, commission members shall be immune from civil liability for any act or omission in the performance of their duties while serving on the commission.

(E) Each commission member shall receive reimbursement for actual and necessary expenses incurred in the performance of official business and for each mile necessarily traveled in the performance of official duties.

Sec. 3781.36.  (A) The underground protection commission of Ohio shall meet at any time that, in its judgment, is necessary. The commission may hold meetings at the location and time that it selects.

(B) The commission shall do the following:

(1) Review and assess, and if necessary investigate, all enforcement recommendations submitted by the state underground protection advisory committee. If, pursuant to section 3781.37 of the Revised Code and with a majority vote of its members, the commission finds reasonable grounds indicating that a party against whom a complaint has been filed is a habitual or willful non-complier, it shall impose corrective action and appropriate penalties.

(2) Review, assess, and mediate resolutions of all complaints made to the committee regarding discriminatory or unfair rates or fees charged by a protection service.

(C) The commission may do any of the following:

(1) Request and receive from the department of commerce meeting space, staff services, and other technical assistance. Such assistance may include providing the commission with data, research, statistics, and analysis and providing the commission with investigators and hearing examiners.

The commission shall maintain any and all of its records and make them available to the public upon proper request.

(2) Adopt and utilize an identifying mark, such as a seal or logo, for the authentication of its documents.

(3) Adopt rules to govern its procedures.

Sec. 3781.37. (A) A protection service shall forward all complaints it receives to the state underground protection advisory committee in accordance with rules adopted by the committee.

(B) The committee shall investigate and conduct review hearings regarding the complaints filed with a protection service. If, after an investigation and review hearing, and with a majority vote of its members, it finds reasonable grounds indicating that a party against whom a complaint has been filed is a habitual or willful non-complier, the committee shall provide its findings and recommend corrective action and civil penalties to the underground protection commission of Ohio, with such recommended civil penalties not to exceed ten thousand dollars per violation identified in the findings and recommendations. The commission shall review any recommendations submitted by the committee pursuant to this section, conduct a hearing in accordance with Chapter 119. of the Revised Code, and issue a ruling regarding each case.

(C) The committee shall investigate, review, and arbitrate resolutions of any complaints about discriminatory or unfair rates or fees charged by a protection service. Any party subject to arbitration under this section may appeal the committee's resolution of the complaint to the commission.

(D) In investigating complaints, the committee and commission may accept information from any person appearing to show a violation of any provision of sections 3781.25 to 3781.32 of the Revised Code.

In the course of conducting an investigation, the committee or commission may administer oaths, order the taking of depositions, and issue subpoenas to compel the attendance and testimony of persons and the production of books, accounts, papers, documents, or other tangibles.

If a person subpoenaed pursuant to this division fails to comply with the subpoena, the committee or commission may apply to the court of common pleas in the county in which the person to be subpoenaed resides for an order compelling compliance in the same manner as compliance with a subpoena issued by the court is compelled.

(E) Absent bad faith, any person reporting information or testifying before the committee or the commission during any hearing arising under sections 3781.25 to 3781.32 of the Revised Code is not liable for any claims of civil damages that may arise from providing such report or testimony.

(F)(1) The commission may impose and collect penalties for violations of sections 3781.25 to 3781.32 of the Revised Code brought pursuant to complaints addressed under section 3781.37 of the Revised Code. Any penalty collected pursuant to this section shall be deposited in the state underground protection fund as provided in section 3781.38 of the Revised Code.

(2) No penalty imposed pursuant to this section shall exceed ten thousand dollars per violation.

(G) The committee and commission may dismiss a complaint only with a majority vote of its respective members.

(H) Commission decisions may be appealed to the Franklin county court of common pleas.

Sec. 3781.38.  There is hereby created the state underground protection fund in the state treasury, which shall consist of moneys deposited into the fund pursuant to section 3781.281 of the Revised Code, from penalties imposed for violations of sections 3781.25 to 3781.32 of the Revised Code, and from any money appropriated to it.

The moneys in the fund shall be used at the discretion of the underground protection commission consistent with this section. The moneys shall first be used to pay the administration and enforcement costs incurred pursuant to sections 3781.35 to 3781.37 of the Revised Code. Any moneys remaining in the fund shall be used at the discretion of the commission for activities to improve the state's underground utility facilities protection and to provide grants to organizations to fund public education and awareness programs promoting and advancing the mission and operations of the protection services.

Section 2.  That existing sections 121.04, 153.64, 3781.25, 3781.26, 3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 of the Revised Code are hereby repealed.