2024 Pennsylvania Consolidated & Unconsolidated Statutes
Act 127 - UNDERGROUND UTILITY LINE PROTECTION LAW - OMNIBUS AMENDMENTS
Session of 2024
No. 2024-127
SB 1237
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 for administrative penalties; providing for action for recovery of penalty or forfeiture; and further providing 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," "horizontal directional drilling," "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:
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"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.
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"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.
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"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, 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 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.
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["Horizontal directional drilling" means the use of horizontal boring devices that can be guided between a launch point and a reception point beneath the earth's surface.]
"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.
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"Locate request" means a communication or notification between an excavator or designer and the One Call System in 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.
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"Sketch" means a physical depiction of a work site generally for permitting purposes and not solely or specifically applicable to design requirements.
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"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, or its successor document as determined by the One Call System.
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"Trenchless technology" means a family of construction techniques for installing or rehabilitating underground infrastructure with minimal disruption to surface traffic, businesses and residents.
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"Violation" means an instance when it has been determined by the commission that a person by action or inaction has failed to fulfill the obligations of this act.
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Section 2. Section 2(1)(ii) and (iv), (5)(i), (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:
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(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.]
(C) A facility owner may not be required to locate lines or facilities installed before April 30, 2018, unless the facility owner has existing maps of the lines or 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 April 30, 2018.
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(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
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(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 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 or notify excavators of the existence of any known lines and abandoned lines.
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(i.2) 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.
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(v.2) To timely enter a final response to all locate requests.
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(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.]
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(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(5), 5(2.1), (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:
Section 4. It shall be the duty of each designer preparing a drawing which requires excavation or demolition work within this Commonwealth:
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(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 written receipt of the request.
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(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 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.
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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.
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(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.
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(11.2) [If using horizontal directional drilling (HDD), at] If using trenchless technology, at a minimum, to utilize the best practices published by the [HDD Consortium] Common Ground Alliance.
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(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 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.
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(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.
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(22) To not provide 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 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.
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(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 under this act within thirty days of receipt of the written request.
Section 4. Section 7.8(a)(2) and (5)(i), (b)(1) and (5), (c)(1)(ii) and (2), (d) and (e)(3) of the act are amended, subsection (c) is amended by adding a clause and the section is amended by adding a subsection to read:
Section 7.8. (a) A damage prevention committee shall be established as follows:
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(2) A person appointed to the committee must have expertise within the operation of this act related to the industry represented.
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(5) The initial term of committee members shall be as follows:
(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.
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(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.
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(5) Issue an informal determination that modifies or dismisses a recommendation of [committee staff] the damage prevention investigator.
(c) The following shall apply to alleged violations:
(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:
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(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 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.
(d.1) Notwithstanding any other provision of this act, the committee shall only have the powers and duties enumerated in subsections (b) and (c) if the committee completes its review of an alleged violation and issues an informal determination within two hundred seventy days of the occurrence of the alleged violation.
(e) The committee shall have the following additional duties:
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(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] Protection, Technology and Utilities of the House of Representatives. The report shall include relevant metrics to demonstrate how the damage prevention committee's actions advance the goal of minimizing the occurrence of line hits and enhance public safety.
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Section 5. Section 7.10(c) of the act is amended to read:
Section 7.10. * * *
(c) The following shall apply:
(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 or entity 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 or entity 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 or entity that fails to comply with this clause.
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Section 6. The act is amended by adding a section to read:
Section 7.11. Except as otherwise provided in this act, an action for the recovery of any penalty or forfeiture incurred under the provisions of this act or a prosecution on account of any matter or thing mentioned in this act may not be maintained unless brought within three years from the date at which the liability arose.
Section 7. Section 39 of the act is amended to read:
Section 39. This act shall expire on December 31, [2024] 2031.
Section 8. This act shall take effect immediately.
APPROVED--The 29th day of October, A.D. 2024.
JOSH SHAPIRO
