This past session, the North Carolina General Assembly replaced the existing Underground Damage Prevention Act with the Underground Utility Safety and Damage Prevention Act, which took effect on October 1, 2014.
Developers (excavators) and local governments (Facility Operators) alike should take note.
The Act’s stated purpose is “to protect the citizens and workforce of this State from the dangers inherent in excavating or demolishing in areas where underground lines, systems, or infrastructures are buried beneath the surface of the ground” and “to protect from costly damage underground facilities used for producing, storing, conveying, transmitting or distributing communication, electricity, gas, petroleum, petroleum products, hazardous liquids, water, steam, or sewage.”
The Act is meant to provide for a systemic, orderly, and uniform process to identify existing underground facilities in advance of any excavation or demolition and to implement safe digging practices.
What are the new obligations as of October 1, 2014? Let’s see.
Operators. The Act requires “operators” to maintain and join a “Notification Center”. An “operator” is defined as any person, public utility, communications or cable service provider, municipality, electrical utility, or electric or telephone cooperative that owns or operates a Facility within the State.
Facility. A facility is defined to include any underground line, system or infrastructure used for producing, storing, conveying, transmitting, identifying, locating, or distributing communication, electricity, gas, petroleum or petroleum products, hazardous liquids, water, steam or sewage.
Notification Center. A Notification Center is defined to mean a member-owned, not-for-profit corporation sponsored by Facility Operators that will provide a system through which persons may notify Facility Operators of proposed excavations and demolitions. It is apparently intended that North Carolina 811 serve as the defined Notification Center. All Facility Operators must become members of the Notification Center in a phased plan, depending on Facility Operators characteristics, as defined in the Act.
Excavator. An excavator is defined as “[a] person engaged in excavation or demolition”. It is broad.
Excavator Responsibilities. Before commencing any excavation or demolition, the person responsible for the activities must provide notice to the Notification center of the intent to act. The Act is specific about the contents and timing of the notice, varying by virtue of the type of excavation or demolition involved. Besides notice, excavators must also comply with ten (10) specific sets of requirements designed to avoid damage or minimize interference with Facilities.
Facility Operator Responsibilities. The Act requires much of Facility Operators. Facility Operators are required to prep[are installation records of all Facilities installed in a public street, alley, or right-of-way dedicated to public use, excluding service drops and service lines. The Facility Operator must maintain the records while the Facility is in service. Additionally, all Facilities installed after October 1, 2014 shall be “electronically locatable” using a locating method that is generally accepted by operators in the particular industry or trade in which the Facility Operator is engaged. Upon notice from an Excavator, the Facility Operator must provide the Excavator with the horizontal location and description of all of the Facility Operator’s Facilities in the area where the proposed excavation or demolition is to occur.
Excavator Liabilities. If an Excavator performs an act that damages a Facility, the Excavator is required to immediately notify the Notification Center and the Facility Operator. If the damage results in the discharge of electricity or any flammable, toxic, or corrosive gas or liquid, the Excavator must immediately notify emergency responders in addition to the Notification Center and the Facility Operator. If a Facility Operator fails to respond or properly locate pursuant to proper notice from an Excavator, the Excavator is free to proceed and will not be liable to the Facility Operator for damages provided there is due care.
Notice Exemptions. The Act contains a number of instances wherein notices are not required by an Excavator, such as excavation by a single-family homeowner, in an emergency or when a local government is conducting maintenance activities within its designated right-of-way.
Finally, the Act expressly preempts local ordinances of certain types. Here’s how Raleigh is addressing parts of the new law.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.
Categories: Construction Law