2023-2024 Regular Session SB 1237 PN 1689 Bill Text (HTM)

PRINTER'S NO. 1689

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1237

Session of

2024

INTRODUCED BY BAKER, BARTOLOTTA, SANTARSIERO, COSTA, SCHWANK,

J. WARD, MILLER AND CULVER, JUNE 6, 2024

REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE,

JUNE 6, 2024

AN ACT

Amending the act of December 10, 1974 (P.L.852, No.287),

entitled "An act to protect the public health and safety by

preventing excavation or demolition work from damaging

underground lines used in providing electricity,

communication, gas, propane, oil delivery, oil product

delivery, sewage, water or other service; imposing duties

upon the providers of such service and persons and other

entities preparing drawings or performing excavation or

demolition work; and prescribing penalties," further

providing for definitions, for duties of facility owners, for

duties of designers, for duties of excavators, for duties of

project owners, for damage prevention committee, for

compliance orders and administrative penalties and for

expiration of act.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "alleged violation,"

"emergency," "excavation work," "injury," "locate request" and

"subsurface utility engineering" or "SUE" in section 1 of the

act of December 10, 1974 (P.L.852, No.287), referred to as the

Underground Utility Line Protection Law, are amended and the

section is amended by adding definitions to read:

Section 1. The following words and phrases when used in this

act shall have the meanings given to them in this section unless

the context clearly indicates otherwise:

* * *

"Alleged violation" means an instance when a person by action

or inaction [fails] is alleged to have failed to fulfill the

obligations of this act.

* * *

"Damage prevention investigator" means an employee of the

commission tasked with reviewing and investigating an alleged

violation reported to the commission under sections 2(10), 4(8),

5(16) and 6.1(7) and offering recommendations to the committee

to address the alleged violation in the form of a warning

letter, administrative penalty or participation in an

educational program established by the commission.

* * *

"Drawing" means a type of technical plan that shows

information about existing and proposed underground facilities,

grading, landscaping or other site details for the purpose of

providing a clear picture of construction to the excavator. The

term does not include sketches made for the purpose of obtaining

excavation related to permits.

"Emergency" means a sudden or unforeseen occurrence involving

a clear and immediate danger to life, property [and] or the

environment, including, but not limited to, serious breaks or

defects in a facility owner's lines.

"Excavation work" means the use of [powered] equipment or

explosives in the movement of earth, rock or other material, and

includes, but is not limited to, anchoring, augering,

backfilling, blasting, boring, digging, ditching, dredging,

drilling, driving-in, grading, plowing-in, pulling-in, ripping,

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scraping, trenching and tunneling. The term does not include

soft excavation technology such as vacuum, high pressure air or

water, tilling of soil for agricultural purposes or for general

yard or garden purposes to a depth of less than eighteen inches,

performing minor routine maintenance up to a depth of less than

eighteen inches measured from the top of the edge of the cartway

or the top of the outer edge of an improved shoulder, in

addition to the performance of incidental de minimis excavation

associated with the routine maintenance and the removal of

sediment buildup, within the right-of-way of public roads or

work up to a depth of twenty-four inches beneath the existing

surface within the right-of-way of a State highway, work

performed by persons whose activities must comply with the

requirements of and regulations promulgated under the act of May

31, 1945 (P.L.1198, No.418), known as the Surface Mining

Conservation and Reclamation Act, the act of April 27, 1966 (1st

Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence

and Land Conservation Act, or the act of September 24, 1968

(P.L.1040, No.318), known as the Coal Refuse Disposal Control

Act, that relate to the protection of utility facilities or the

direct operations on a well pad following construction of the

well pad and that are necessary or operations incidental to the

extraction of oil or natural gas.

* * *

"Injury" means a bodily harm to a person, who, as a result of

the bodily harm, immediately receives medical attention at a

health care facility away from the scene of the incident.

* * *

"Locate request" means a communication or notification

between an excavator or designer and the One Call System in

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which a request for locating facilities is processed. Locate

requests submitted by an excavator performing work within the

right-of-way of any State highway, either under contract to the

Department of Transportation or under authority of a permit

issued by the Department of Transportation, shall include the

number of the Department of Transportation contract or permit.

* * *

"Service line" means a distribution line that transports a

product from a common source of supply to any of the following:

(1) A customer meter, or the connection to a customer's

piping, whichever is further downstream.

(2) The connection to a customer's piping if there is no

meter.

"Sketch" means a physical depiction of a work site generally

for permitting purposes and not solely or specifically

applicable to design requirements.

* * *

"Subsurface utility engineering" or "SUE" means those

techniques set forth in the American Society of Civil Engineers

(ASCE) most recently published standard CI/ASCE [38-02] 38-22,

or its successor document as determined by the One Call System.

* * *

"Trenchless technology" means a family of construction

techniques for installing or rehabilitating underground

infrastructure with minimal disruption to surface traffic,

businesses and residents. The term shall include technologies

for inspection, leak location and leak detection with minimal

disruption and minimal excavation from the ground surface.

* * *

"Violation" means an instance when it has been determined by

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the commission that a person by action or inaction has failed to

fulfill the obligations of this act.

* * *

Section 2. Section 2(1)(ii) and (iv), (5)(i) and (i.1), (10)

and (13) of the act are amended, clause (5) is amended by adding

subparagraphs and the section is amended by adding a clause to

read:

Section 2. It shall be the duty of each facility owner:

(1) To be a member of and give written notice to the One

Call System. Such notice shall be in a form acceptable to the

One Call System and include:

* * *

(ii) as follows:

(A) The names of the counties and municipalities, down to

and including wards in Philadelphia, Pittsburgh, Allentown and

Erie, in which its lines are located and other related

information as may be required by the One Call System regarding

the location of a member's facilities.

[(B) The One Call System may not require its members to

locate lines or facilities installed before the effective date

of this clause unless the member has existing maps of the lines

or facilities and the member's existing maps meet the

specifications of the One Call System's Member Mapping

Solutions. Nothing under this clause shall prohibit the One Call

System members from voluntarily submitting to the One Call

System maps of lines or facilities installed before the

effective date of this clause.]

facilities installed before the effective date of this clause

unless the facility owner has existing maps of the lines or

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facilities and the facility owner's existing maps meet the

specifications of the One Call System's Member Mapping

Solutions. Nothing under this clause shall prohibit a facility

owner as a member of the One Call System from voluntarily

submitting to the One Call System maps of lines or facilities

installed before the effective date of this clause.

* * *

(iv) the street identifications or like information within

each of the municipalities in which its lines are located. This

information shall be in a form acceptable to the One Call

System. Upon acceptance of the information from a facility

owner, the One Call System shall provide the facility owner with

notification within the boundaries described. All facility

owners shall agree to indemnify and hold harmless the One Call

System for any errors and omissions on the part of the facility

owner or the excavator or designer providing the information as

the agent of the facility owner or member mapping information as

required by the One Call System; and

* * *

(5) After receipt of a timely request from an excavator or

operator who identifies the work site of excavation or

demolition work he intends to perform and not later than the

business day prior to the lawful start date of excavation:

(i) To mark, stake, locate or otherwise provide the position

of the facility owner's underground lines at the work site

within eighteen inches horizontally from the outside wall of

such line in a manner so as to enable the excavator, where

appropriate, to employ prudent techniques, which may include

hand-dug test holes, to determine the precise position of the

underground facility owner's lines. This shall be done to the

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extent such information is available in the facility owner's

records or by use of standard locating techniques other than

excavation. Standard locating techniques shall include, at the

utility owner's discretion, the option to choose available

technologies suitable to each type of line or facility being

located at the work site, topography or soil conditions or to

assist the facility owner in locating its lines or facilities,

based on accepted engineering and operational practices.

[Facility owners shall make reasonable efforts during the

excavation phase to locate or notify excavators of the existence

and type of abandoned lines.] Facility owners shall make

reasonable efforts during the excavation phase to locate and

notify excavators of the existence and type of abandoned lines

or any lines at depths less than the depth of installation

required by Federal law.

(i.1) To identify the location of an actually known

facility's point of connection to its facilities, where the

point of connection is not owned or operated by the facility

owner. [A facility owner may identify the location of a known

facility connected to its facilities, but not owned or operated

by the facility owner, as a helpful guide to the excavator or

owner.] The identification shall not be deemed to impose any

liability upon the facility owner for the accuracy of the other

facility's identification.

(i.2) To identify the location of a known service line

connected to its facilities through which the facility owner

uses the service line to pursue a business that derives revenue

by providing a product or service to an end-use customer via the

service line, regardless of whether the service line is owned or

operated by the facility owner.

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(i.3) To document communications between a facility owner

and the excavator to ensure that the excavator is aware of a

facility owner's inability to locate its facilities.

* * *

(10) To submit a report of alleged violation to the

commission through the One Call System not more than thirty

business days after receipt of notice that the facility owner's

lines have been damaged by excavation or demolition work or if

the facility owner believes a violation of this act has been

committed in association with excavation or demolition work. The

report of alleged violation shall be in a form and manner as

required by the commission. [No report may be required where the

cost to repair the damage to the facility owner's lines is less

than two thousand five hundred dollars ($2,500), unless the same

person damaged the facility owner's lines two or more times

within a six-month period.]

* * *

(13) To maintain existing records of main lines abandoned on

or after the effective date of this paragraph and to mark,

locate [or] and identify the main lines if [possible], based

upon the existing records. The records shall include written or

electronic documents or drawings in the possession of the

facility owner that show the location of an existing line or

facility.

(14) To comply with all requests for information by the

commission relating to the commission's enforcement authority

under this act within thirty days of receipt of the request.

Section 3. Sections 4(4) and (5), 5(2.1), (4), (8), (11.2),

(15), (16) and (20) and 6.1(1), (2) and (7) of the act are

amended and the sections are amended by adding clauses to read:

20240SB1237PN1689 - 8 -

Section 4. It shall be the duty of each designer preparing a

drawing which requires excavation or demolition work within this

Commonwealth:

* * *

(2.2) To submit a design notification through the One Call

System when a design drawing is completed.

(2.3) To timely respond to notifications received from

excavators in accordance with section 5(15).

(2.4) To inform the project owner of the project owner's

duties under sections 5(15) and 6.1(1).

(2.5) To comply with all requests for information by the

commission relating to the commission's enforcement authority

under this act within thirty days of receipt of the request.

* * *

(4) To make a reasonable effort to prepare the construction

drawings to depict lines or facilities with quality levels

obtained through the SUE process in the planning and design

phases, including test hole data sheet details for all lines or

facilities crossing existing lines or facilities, in accordance

with the American Society of Civil Engineers (ASCE) most

recently published standard CI/ASCE 22 and 75-22 to avoid damage

to and minimize interference with a facility owner's facilities

in the construction area by maintaining the clearance as

provided for in the applicable easement condition or an

eighteen-inch clearance of the facility owner's facilities if no

easement restriction exists.

(4.1) To depict lines or facilities with the appropriate

quality levels based on the complexity of the design and

construction activities obtained through the SUE process in the

planning and design phases, including test hole data sheet

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details for lines, service lines or facilities crossing existing

lines, service lines or facilities in accordance with the

American Society of Civil Engineers (ASCE) most recently

published standard CI/ASCE 38.

(4.2) In the event that as-builts are required during the

construction phase, to prepare the as-builts in accordance with

the most recently published standard of CI/ASCE 75.

(5) A designer shall be deemed to have met the obligations

of clause (2) if he [calls] notifies the One Call System and

shows, as proof, the serial number of one call notice on

drawings. The designer shall also show the toll-free number of

the One Call System on the drawing near his serial number.

* * *

Section 5. It shall be the duty of each excavator who

intends to perform excavation or demolition work within this

Commonwealth:

(2.1) To [request] submit a locate request to identify the

location and type of facility owner lines at each work site by

notifying the facility owner through the One Call System.

Notification shall be not less than three nor more than ten

business days in advance of beginning excavation or demolition

work. No work shall begin earlier than the lawful start date

which shall be on or after the third business day after

notification. The lawful start date shall exclude the date upon

which notification was received by the One Call System and

notification received on a Saturday, Sunday or holiday, which

shall be processed on the following business day. In the case of

a complex project, notification shall not be less than ten

business days in advance of the beginning of excavation or

demolition work.

20240SB1237PN1689 - 10 -

* * *

(4) To exercise due care and to take all reasonable steps

necessary to avoid injury to or otherwise interfere with all

lines where positions have been provided to the excavator by the

facility owners pursuant to section 2(5). Within the tolerance

zone the excavator shall employ prudent techniques, which may

include hand-dug test holes, vacuum excavation or similar

devices to ascertain the precise position of such facilities. If

insufficient information to safely excavate is available

pursuant to section 2(5), the excavator shall employ like

prudent techniques which shall be paid for by the project owner

pursuant to clause (15). An excavator shall not be liable for a

violation relating to shallow depth lines not installed or

maintained by a facility owner to a depth required by Federal

law.

* * *

(8) To immediately notify 911 and the facility owner if the

damage results in the escape of any flammable, toxic or

corrosive gas or liquid [which endangers life, health or

property]. The excavator shall take reasonable measures, based

on its knowledge, training, resources, experience and

understanding of the situation, to protect themselves and those

in immediate danger, the general public, the property and the

environment until the facility owner or emergency responders

have arrived and completed their assessment and shall remain on

the work site to convey any pertinent information to responders

that may help them to safely mitigate the situation.

* * *

(11.2) [If using horizontal directional drilling (HDD), at]

At a minimum, to utilize the best practices published by the HDD

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Consortium.

* * *

(15) When the information required from the facility owner

under section 2(5)(i) cannot be provided or, due to the nature

of the information received from the facility owner, it is

reasonably necessary for the excavator to ascertain the precise

location of any line or abandoned or unclaimed lines by prudent

techniques, which may include hand-dug test holes, vacuum

excavation or other similar devices, the excavator shall

promptly notify the project owner or the project owner's

representative, either orally or in writing. If oral

notification is given, the notice shall be reduced to writing

within a reasonable time by the project owner or excavator.

After giving such notice, the excavator shall be entitled to

compensation from the project owner for this additional work as

provided in the latest edition of the Pennsylvania Department of

Transportation Form 408 specifications for extra work performed

on a force account basis. The provisions of this subsection

shall not be deemed to limit any other rights which the

excavator has under its contract with the project owner or

otherwise. Provisions in any contract, public or private, which

attempt to limit the rights of excavators under this section

shall not be valid for any reason, and any attempted waiver of

this section shall be void and unenforceable as against public

policy and any such attempted waiver shall be reported to the

commission prosecutor staff for appropriate action, including

the imposition of an administrative penalty under section 7.10.

(16) To submit a report of an alleged violation to the

commission through the One Call System not more than [ten

business] thirty days after striking or damaging a facility

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owner's line during excavation or demolition or if the excavator

believes a violation of this act has been committed in

association with excavation or demolition work. The report of an

alleged violation shall be in a form and manner as required by

the commission.

* * *

(20) To renotify the One Call System of an unmarked or

incorrectly marked facility, if an original, proper[,

nonemergency] locate request has been made to the One Call

System and, upon initial arrival at the proposed work site, it

is apparent to the excavator that there is an unmarked or

incorrectly marked facility. An excavator may not begin

excavating in the affected area of the work site until after

receiving sufficient information from the facility owner to

safely excavate. If the facility owner fails to provide

sufficient information to the excavator within three hours after

the excavator has notified the One Call System of the unmarked

or incorrectly marked facility, the excavator may proceed with

excavation subject to the limitations under clause (5). This

clause shall apply to an emergency or nonemergency locate

request.

* * *

(22) To refrain from providing a misrepresentation of an

emergency excavation, subject to an administrative penalty

imposed under section 7.10.

(23) To not delegate the excavator's duty to submit a locate

request to the One Call System to another person. The excavator

shall have the sole responsibility to submit each locate request

to the One Call System .

Section 6.1. It shall be the duty of each project owner who

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engages in excavation or demolition work to be done within this

Commonwealth:

(1) To utilize [sufficient quality levels of] subsurface

utility engineering or other similar techniques whenever

practicable to properly determine the existence and positions of

underground facilities when designing known complex projects

having an estimated cost of four hundred thousand dollars

($400,000) or more.

(2) To timely respond to notifications received from

excavators pursuant to section 5(15). Provisions in any

contract, public or private, which attempt to limit the rights

of excavators under section 5 shall not be valid for any reason,

and any attempted waiver of section 5 shall be void and

unenforceable as against public policy and any such attempted

waiver shall be reported to the commission prosecutor staff for

appropriate action, including the imposition of an

administrative penalty under section 7.10.

* * *

(7) To submit a report of alleged violation to the

commission through the One Call System not more than [ten

business] thirty days after striking or damaging a facility

owner's line during excavation or demolition work activities,

after a project owner's contracted excavator strikes or damages

a facility owner's line during excavation or demolition

activities or if the project owner believes a violation of this

act has been committed in association with excavation or

demolition. The report of alleged violation shall be in a form

and manner as required by the commission.

(8) To comply with all requests for information by the

commission relating to the commission's enforcement authority

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under this act within thirty days of receipt of the request.

Section 4. Section 7.8(a)(1)(iv), (2), (3), (5)(i), (b)(1)

and (5), (c)(1)(ii) and (2), (d) and (e)(3) of the act are

amended, subsection (a)(1) is amended by adding a subparagraph

and subsection (c) is amended by adding a clause to read:

Section 7.8. (a) A damage prevention committee shall be

established as follows:

(1) The committee shall consist of the following members,

appointed by the commission:

* * *

(iv) One representative from each of the following

nonmunicipally owned or affiliated facility owner industries:

electric, [natural gas or petroleum pipelines,] telephone, water

or wastewater and cable television, nominated by facility owners

or affiliated organizations.

(iv.1) Two representatives from nonmunicipally owned or

affiliated facility owner natural gas or petroleum pipelines

industries, nominated by facility owners or affiliated

organizations.

* * *

(2) A person appointed to the committee must [have expertise

within the operation of this act] maintain employment within the

industry represented.

(3) A nomination under clause (1)(iv), (iv.1), (v), (vi) and

(vii) shall be forwarded to the secretary of the commission. The

executive director of the commission shall provide recommended

candidates to the commission for approval.

* * *

(5) The initial term of committee members shall be as

follows:

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(i) Two representatives of facility owners under clause (1)

(iv) shall serve three years, one representative shall serve two

years and two representatives shall serve one year.

* * *

(b) The committee shall meet regularly to carry out the

following purposes:

(1) Review a report of an alleged violation of this act and

damage prevention investigator findings [and recommendations.]

concerning the basis or root cause of the alleged violation

reported and recommendations proposed to address the alleged

violation .

* * *

(5) Issue an informal determination that modifies or

dismisses a recommendation of [committee staff] the damage

prevention investigator.

(1) A person determined, in a report issued by a damage

prevention investigator, to have committed an alleged violation

shall do one of the following:

* * *

(ii) Appear before the [commission] committee to present its

position.

(2) A person who is subject to an informal determination of

the committee may accept or reject the result. If [an informal

determination is rejected,] a person who is subject to an

informal determination opts to reject the informal

determination, the person shall reject the informal

determination in writing within thirty days of the date when the

informal determination is made by the committee and the matter

shall be [returned to the damage prevention investigator for

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further action, if appropriate, including referring the matter]

referred to the commission prosecutor staff for [the purpose of

issuing a formal complaint.] an action resulting in a formal

complaint before the commission. An action resulting in a formal

complaint before the commission must be brought by commission

prosecutor staff within the time limits specified under 66

Pa.C.S. § 3314(a) (relating to limitation of actions and

cumulation of remedies).

(3) When a written rejection of an informal determination

under clause (2) results in a formal complaint before the

commission, the commission shall conduct a de novo review of the

alleged violation. The informal determination of the committee

shall not be binding upon the commission.

(d) Except for alleged violations involving injury or death,

the provisions of subsection (c) [may] shall be applied in

advance or instead of filing a formal complaint against a person

determined, in a report issued by a damage prevention

investigator, to have committed an alleged violation. An

informal determination of the committee shall be binding on the

commission unless the person rejects the informal determination.

(e) The committee shall have the following additional

duties:

* * *

(3) Submit an annual report containing relevant damage

prevention data to the commission, the Committee on Consumer

Protection and Professional Licensure of the Senate and the

Committee on Consumer Affairs of the House of Representatives.

The report shall include relevant metrics to demonstrate how the

committee's actions advance the goal of minimizing the

occurrence of line hits and enhance public safety.

20240SB1237PN1689 - 17 -

* * *

Section 5. Sections 7.10(c) and 39 of the act are amended to

read:

Section 7.10. * * *

(1) An administrative penalty recovered under this section

shall be payable to the commission and collected in the manner

provided for by law.

(2) A person or entity violating this act must pay an

administrative penalty to the commission within sixty days of

issuance of the informal determination, unless the person who is

subject to the informal determination rejects the informal

determination within thirty days in accordance with section

7.8(c)(2).

(3) The commission shall assess an additional administrative

penalty of one hundred dollars ($100) per day, not to exceed a

total of five thousand dollars ($5,000), for an administrative

penalty not paid within the period specified under paragraph

(2).

(4) A person subject to an informal determination of the

committee requiring a damage prevention educational program

under section 7.8(b)(4) shall successfully complete the program

within sixty days of issuance of the informal determination.

The commission shall assess an additional administrative penalty

of one hundred dollars ($100) per day, not to exceed a total of

five thousand dollars ($5,000), on a person who fails to comply

with this clause.

* * *

Section 39. This act shall expire on December 31, [2024]

2034.

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Section 6. This act shall take effect in 60 days.

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