Delaware State Law
Underground
Utility Damage Prevention
and Safety Act
§ 801.
Purpose; citation; construction.
(a)
For the purposes of providing for the protection of the public health
and safety, certain procedures are necessary to assure that persons
performing excavation or demolition operations know, prior to commencing
such operations, of the presence or location of underground utilities
in the excavation or demolition area. Certain precautions must be taken
to avoid injuries and damage to life, limb and property, to avoid disruption
and discontinuation of utility services to members of the public and
to promote safe operations during excavation and demolition.
(b) This act shall be known and may be cited as the Underground Utility Damage
Prevention and Safety Act. This chapter shall be liberally construed and applied
to promote its underlying purposes and policies.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 802.
Definitions.
As
used in this chapter, unless the context otherwise requires:
(1) "Approved notification center" shall mean an organization identified by § 807
of this title and which complies with the requirements of § 807 of this
title and is otherwise operated in accordance with the Federal Pipeline Safety
Regulations codified at 49 C.F.R. Ch. 1., § 198.39.
(2) "Damage" shall mean, but is not limited to: a. The complete or partial
destruction, dislocation or weakening of structure or lateral support of a
utility line, or b. The complete or partial penetration or destruction of any
utility line, appurtenance, protective coating, covering, housing or other
protective device, or c. The complete or partial severance of any utility line.
(3) "Demolish or demolition" shall mean any operation by which a structure
or mass of material is wrecked, razed, rendered, moved or removed by means
of any tools, equipment or discharge of explosives capable of damaging underground
or submarine utility lines.
(4) "Designer" shall mean any architect, engineer or other person, acting either
as an employer or employee, who prepares a drawing for a construction or other
project which requires excavation or demolition.
(5) "Emergency" shall mean any condition constituting a clear and present danger
to life, health or property by reason of escaping gas or petroleum products,
exposed or broken wires, other breaks or defects in an operator's utility line
or by reason of any disaster of artificial or natural causes.
(6) "Excavate" or "excavation" shall mean any operation in which earth, rock
or other material in the ground is moved, removed or otherwise displaced or
disturbed by means of any tools, equipment or explosives and includes, without
limitation, grading, trenching, digging, dredging, ditching, drilling, augering,
tunnelling, boring, backfilling, post pounding, driving objects into the ground,
installation of form pins, hammering, scraping, cable or pipe plowing or driving,
but does not include the surface cultivation of the soil for agricultural purposes,
such as tilling, or patch-type paving where the same, including cutback, does
not exceed 12 inches in depth measured from the surface of the pavement being
patched.
(7) "Excavator" shall mean any person, including those acting either as an
employer or employee, intending to perform or performing excavation or demolition
work.
(8) "Operator" shall mean any person who furnishes or transports materials
or services by means of a utility line.
(9) "Person" shall mean any individual, firm, joint venture, partnership, corporation,
association, municipality, other political subdivision, state or federal governmental
unit, department or agency, state cooperative association, joint stock association
and shall include any assignee, trustee, receiver or personal representative
thereof.
(10) "Underground pipeline facility operator" shall mean an operator of a buried
pipeline facility used in the transportation of gas, such as propane and natural
gas, subject to the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. § 1671
et. seq.) [repealed by act, July 5, 1994, P.L. 103-272], or used in the transportation
of hazardous liquid subject to the Hazardous Liquid Pipeline Safety Act of
1979 (49 U.S.C. § 2001 et. seq.) [repealed by act, July 5, 1994, P.L.
103-272]; Underground Pipeline Facility Operators include, without limitation,
natural gas, propane gas, master meter, LP gas and interstate and intrastate
gas and liquid distribution facility operators as defined by these acts.
(11) "Utility line" shall mean any item of personal property which shall be
buried or placed below ground or submerged for use in connection with the storage
or conveyance of water, sewage, electronic, cable television, telephonic or
telegraphic communications, electric energy, oil, petroleum products, gas or
other substances, and shall include, but not be limited to, pipes, sewers,
conduits, cables, fiber optic conductors, valves, lines, wires, manholes, vaults,
attachments and those portions of poles, pylons or other supports below ground
or submerged.
(12) "Working day" shall mean every day, except Saturday, Sunday and state,
federal and recognized operator holidays.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 803.
Duties of operator.
It
shall be duty of each operator:
(1) To participate in the approved notification center.
(2) To give written notice to such approved notification center which shall
state: a. The name of the operator; b. The location of the operator's lines;
and c. The operator's office address (street, number and political subdivision)
and the telephone numbers to which inquiries may be directed as to the location
of such lines.
(3)
To give like written notice within 5 working days after any of
the matters stated in the last previous notice shall have changed.
(4) To respond to requests from an excavator or operator who identifies the
site of excavation or demolition, or proposed excavation or demolition, for
information as to the approximate location and type of the operator's utility
lines in the area, not more than 2 working days after receipt of such requests.
(5) To inform excavators or operators who identify the site of excavation or
demolition, or proposed excavation or demolition, not more than 2 working days
after receipt of a request therefor, of the following:
a. If it is determined by an operator that a proposed excavation or demolition
is planned within 5 feet of a utility line as measured in the horizontal plane
and that the utility line may be damaged, the operator shall notify the person
who proposes to excavate or demolish and shall physically mark the horizontal
location of the utility line within 18 inches of the utility line on the ground
by means of stakes, paint or other suitable means within 2 working days after
the request. The operator shall also notify the person who proposes to excavate
or demolish as to the size of the utility line, the type of temporary marking
provided and how to identify the markings. In the case of extraordinary circumstances,
if the operator cannot mark the location within 2 working days, the operator
shall, upon making such determination, notify the person who proposes to excavate
or demolish and shall, in addition, notify the person of the date and time
when the location will be marked;
b. The cooperative steps which the operator may take, either at or off the
excavation or demolition site, to assist in avoiding damage to its lines;
c. Suggestions for procedures that might be followed in avoiding such damage;
d. If the operator has no utility line within 5 feet of the proposed excavation
or demolition as measured in the horizontal plane and if a proposed excavation
or demolition by blasting is not planned in such proximity to the operator's
utility lines that the utility lines may be damaged, the operator shall advise
the person who proposes to excavate or demolish that marking is unnecessary
and that the person may therefore begin the excavation or demolition;
e. In marking the approximate location of utility lines, the operator shall
follow the color coding described herein:
Electric power distribution and transmission - Safety red
Municipal electric systems - Safety red
Gas distribution and transmission - High visibility safety yellow
Oil and petroleum products distribution and transmission - High visibility
safety yellow
Dangerous materials, product lines, steam lines - High visibility safety yellow
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 systems - Safety green.
(6) To respond to requests from designers who identify the site of excavation
or demolition, for information as to the approximate location and type of the
operator's utility lines in the area within 15 working days of receipt of a
request therefor.
(7) To inform designers who identify the site of excavation or demolition,
or proposed excavation or demolition, not more than 15 working days after receipt
of a request therefor of the information set forth at subsection (5) of this
section. (8) Upon receipt of a request pursuant to subsections (4), (5), (6)
and/or (7) of this section to assign such request an identifying number (which
may be the same as the number assigned by the approved notification center
in accordance with § 807(b)(5) of this title), inform the requestor of
such number and maintain a record showing the name, address and telephone number
of the requestor, the site to which the request pertains and the identifying
number assigned to the request.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1; 70 Del.
Laws, c. 186, § 1.)
§ 804.
Additional duties of operators who are also underground pipeline facility
operators.
It
shall be the duty of each underground pipeline facility operator to:
(1) Participate in the approved notification center.
(2) Provide as follows for inspection of pipelines that such operator has reason
to believe could be damaged by excavation activities:
a. The inspection must be done as frequently as necessary during and after
the excavation activities to verify the integrity of the pipeline; and
b. In case of blasting, any inspection must include leakage surveys.
(69
Del. Laws, c. 455, § 1.)
§ 805.
Duties of designers.
It
shall be the duty of each designer:
(1) To contact the approved notification center and obtain the identity of
operators whose facilities are listed, as required by § 803 of this title,
in the area of the proposed excavation or demolition;
(2)
To obtain the information prescribed in § 803(6) or (7) of
this title from each operator identified as required by § 803(2)
of this title;
(3) To show upon the drawing the type of each line, derived pursuant to the
request made as required in subsection (2) of this section, the name of the
operator and telephone number of the approved notification center, and instructions
to "notify the approved notification center not less than 2 working days, but
no more than 10 working days, prior to the excavation or demolition activities."
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 806.
Duties of excavators.
(a) Prior to undertaking any excavation or demolition activities, it shall
be the duty of each excavator to:
(1) Ascertain the telephone number of the approved notification center;
(2) Notify the approved notification center not less than 2 working days, but
no more than 10 working days, prior to the day of the commencement of such
work of the following: a. The name of the person notifying the approved notification
center; b. The name, address and telephone number of the excavator; c. The
specific location, starting date and description of the intended excavation
or demolition activity;
(3) Ascertain the location and type of utility lines, and information prescribed
by § 803(5) of this title and the identifying number(s) assigned (pursuant
to § 807 of this title) by the approved notification center in response
to the notice prescribed in paragraph (2) of this subsection;
(4) Inform each person employed by the excavator at the site of such work of
the information obtained pursuant to paragraph (3) of this subsection;
(5) Maintain in a prudent and careful manner all markings provided by operators
in accordance with the provisions of § 803 of this title and, in the event
of the obliteration, destruction or removal of the markings, the excavator
shall notify the approved notification center of the need for remarking of
utility line by the operators;
(6) Establish and maintain a mutually agreeable schedule of required utility
locating with each involved operator to insure that the purpose of this chapter
is met whenever the intended excavation or demolition will occur at multiple
locations, on various dates, on a construction site or public works project
with a duration in excess of 20 working days. Proper establishment and prudent,
careful, compliance with such a schedule, after initial notice as required
under paragraph (2) of this subsection, shall be considered as notice required
in paragraph (2) for the balance of the construction project;
(7) Excavate prudently and carefully and to take all reasonable steps necessary
to properly protect, support and backfill underground utility lines. This protection
shall include but may not be limited to hand digging, within the limits of
the planned excavation or demolition, starting 2 feet of either side of the
extremities of the underground utility line for other than parallel type excavations
and at reasonable distances along the line of excavation for parallel type
excavations;
(8) Report immediately to the operator any break in, or leak on, its utility
lines, any dent, gouge, groove or other damage to such lines or to the coating
or cathodic protection made or discovered in the course of the excavation or
demolition work;
(9) Alert immediately the occupants of any premise as to any emergency that
the excavator may create or discover at or near such premises.
(b) The requirements of subsections (a)(1) through (5) of this section shall
not apply to an excavator performing excavation or demolition work in any emergency.
However, excavators performing excavation or demolition activities in an emergency
shall notify the approved notification center at the earliest practicable moment
of the information prescribed in subsection (a)(2) of this section.
(69
Del. Laws, c. 455, § 1; 70 Del. Laws, c. 186, § 1.)
§ 807.
Approved notification center.
(a)
The approved notification center shall be Utilities Service Protection
of Delmarva, Inc.
(b) The approved notification center shall:
(1) Receive and record information prescribed by § 803 of this title regarding
the location of operators' utility lines within the State;
(2) Receive and record information prescribed by §§ 805 and 806 of
this title regarding notice by excavators or designers of intended excavation
or demolition activity;
(3) Promptly transmit to the operators identified in accordance with § 803
of this title, the information received as prescribed by paragraph (2) of this
subsection;
(4) Maintain records of each notice received in accordance with paragraph (2)
of this subsection for a period of not less than 6 years;
(5) Assign an identifying number to the notice prescribed in paragraph (2)
of this subsection;
(6) Notify those persons giving notice as prescribed by § 806 of this
title, of the names of participating operators to whom the notice will be transmitted
as prescribed by paragraph (3) of this subsection and approved notification
center's identifying number assigned (pursuant to paragraph (5) of this subsection)
to the notice prescribed in paragraph (2) of this subsection;
(7) Provide a toll-free telephone number for use by any person providing notice
as prescribed by §§ 803, 805 and 806 of this title;
(8) Identify persons who normally engage in excavation activities in this State;
(9) Notify the persons identified in paragraphs (7) and (8) of this subsection
and the general public as often as necessary to make them aware of:
a. The existence of the approved notification center;
b. The purpose and general requirements of this chapter;
c. How to learn the location of utility lines before excavation or demolition
activities are begun; and
d. The toll-free telephone number provided as required by paragraph (7) of
this subsection.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 808.
Exemptions.
No
penalties provided for in § 810 of this title shall apply to any
excavation or demolition done by the owner of a private residence when
such excavation or demolition is made entirely on the land on which
the private residence is situated and provided there is no encroachment
on any operator's rights-of-way or easement. However, this exemption
shall have no effect on the civil liability of such private residence
owner pursuant to § 811 of this title.
(69
Del. Laws, c. 455, § 1.)
§ 809.
Injunction; mandamus.
Whenever
it appears that any person has engaged in, is engaging in or is about
to engage in excavation or demolition in a manner contrary to safe practices,
thereby posing a threat or potential threat, of injury or damage to
life, limb or property, not necessarily limited to utility lines, or
has otherwise violated, is about to violate or is violating any provision
of this chapter, the Attorney General or any operator or owner of said
utility line may institute an action for the purpose of having such
excavation or demolition stopped or prevented, either by mandatory or
prohibitive injunction, mandamus or for other relief including interim
equitable relief and punitive damages, in a court of competent jurisdiction
in the county in which the excavation or demolition has occurred, is
occurring or is about to occur, or in which the defendant's or respondent's
principal place of business is located. The procedure for all such proceedings
shall be as provided in the rules of procedure in the court where said
action is commenced or as established by the usual practice and procedure
in said court. The court may join as parties any and all persons necessary
to make its judgment or processes effective.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 810.
Penalties.
It
is unlawful and a misdemeanor for any person to do any act forbidden,
or fail to perform an act required by this chapter.
(1) Except as provided in subsection (2) of this section, whoever, by action
or inaction, violates a provision of this chapter shall, for the 1st offense,
be fined not less than $100 nor more than $500. For each subsequent like offense,
such person shall be fined not less than $200 nor more than $1,000 for each
violation.
(2) Operators of underground pipeline facilities, excavators, and the approved
notification center shall, upon violation of any applicable requirements of
49 C.F.R. part 198, Subpart C [49 C.F.R. § 198.31 et seq.], be subject
to civil penalties not to exceed $10,000 for each violation for each day that
the violation persists, except that the maximum civil penalty shall not exceed
$500,000 for any related series of violations. In determining the amount of
the fine, the court shall consider the nature, circumstances and gravity of
the violation and, with respect to the person found to have committed the violation,
the degree of culpability, any history of prior violations, the effect on ability
to continue to do business, any good faith in attempting to achieve compliance,
ability to pay the fine and such other matters as justice may require.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 811.
Civil liability.
(a)
Obtaining information as required by this chapter does not excuse any
person making any excavation or demolition from doing so in a careful
and prudent manner, nor shall it excuse any person from liability for
any damage or injury resulting from the excavation or demolition.
(b)
If the information required to be provided by operators pursuant
to § 803 of this title is not provided in accordance with
the terms thereof, any person damaging or injuring underground
facilities of such operator shall not be liable for such damage
or injury except on proof of negligence.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 812.
Conviction not admissible.
A
conviction under this chapter, even when obtained pursuant to a guilty
plea, shall not be admissible in any civil proceedings involving personal
injury, wrongful death or property damage.
(62
Del. Laws, c. 148, § 2; 69 Del. Laws, c. 455, § 1.)
§ 813.
Effective date.
The
effective date of this chapter shall be January 1, 1995.
(69
Del. Laws, c. 455, § 1.)
THIS
REPRODUCTION OF THE DELAWARE UNDERGROUND UTILITY DAMAGE PREVENION
AND SAFETY ACT, WHICH HAS RECENTLY BEEN ENACTED BY THE DELAWARE LEGISLATURE,
SIGNED BY THE GOVERNOR, AND TAKES EFFECT JANUARY 1, 1995, IS
PROVIDED SOLELY AS A CONVENIENCE FOR THE PERSON OR PERSONS REQUESTING
IT, AND IS NOT TO BE USED AS A LEGAL REFERENCE DOCUMENT. EVERY EFFORT
HAS BEEN MAKE TO REPRODUCE THE APPLICABLE SECTIONS OF THE DELAWARE CODE
ACCURATELY, BUT NEITHER UTILITIES SERVICE PROTECTION CENTER OF DELMARVA,
INC. (MISS UTILITY OF DELMARVA), NOR ANY OF ITS OFFICERS, DIRECTORS,
MEMBERS OR AGENTS MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE
ACCURACY OF THIS REPRODUCTION. PERSONS SEEKING A LEGAL REFERENCE DOCUMENT
SHOULD UTILIZE THE DELAWARE CODE ITSELF.
|
