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S. B. No. 152 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Senators Wagoner, Seitz, Sawyer
A BILL
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.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
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:
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Commissioner of securities; |
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Superintendent of real estate and professional licensing; |
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Superintendent of financial institutions; |
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State fire marshal; |
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Superintendent of labor and worker safety; |
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Superintendent of liquor control; |
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Superintendent of industrial compliance; |
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Superintendent of unclaimed funds; |
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Underground protection commission of Ohio. |
In the department of administrative services:
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State architect and engineer; |
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Equal employment opportunity coordinator. |
In the department of agriculture:
Chiefs of divisions as follows:
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Administration; |
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Animal industry; |
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Dairy; |
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Food safety; |
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Plant industry; |
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Markets; |
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Meat inspection; |
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Consumer analytical laboratory; |
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Amusement ride safety; |
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Enforcement; |
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Weights and measures. |
In the department of natural resources:
Chiefs of divisions as follows:
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Water; |
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Mineral resources management; |
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Forestry; |
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Natural areas and preserves; |
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Wildlife; |
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Geological survey; |
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Parks and recreation; |
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Watercraft; |
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Recycling and litter prevention; |
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Soil and water conservation; |
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Real estate and land management; |
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Engineering. |
In the department of insurance:
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Deputy superintendent of insurance; |
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Assistant superintendent of insurance, technical; |
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Assistant superintendent of insurance,
administrative; |
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Assistant superintendent of insurance, research. |
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;
(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:
Type of Underground |
|
|
Utility Facility |
|
Color |
Electric power transmission |
|
Safety red |
and distribution |
|
|
Gas transmission and distribution |
|
High visibility safety yellow |
Oil transmission and distribution |
|
High visibility safety yellow |
Dangerous materials, product |
|
High visibility safety yellow |
lines, and steam lines |
|
|
Telephone and telegraph systems |
|
Safety alert orange |
Police and fire communications |
|
Safety alert orange |
Cable television |
|
Safety alert orange |
Water systems |
|
Safety precaution blue |
Slurry systems |
|
Safety precaution blue |
Sewer lines |
|
Safety green. |
(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.
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