Report Title:

Excavations; utilities; one call center

Description:

Adds a new part to Chapter 269, Hawaii Revised Statutes, establishing a one call center and board to provide advance warnings of excavations or other work close to existing subsurface installations to protect those installations from damage.

THE SENATE

S.B. NO.

2678

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to a one call center.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 269, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . one call center

§269-A Definitions. As used in this part, unless the context clearly requires otherwise:

"Agency" means any state or county department, commission, board, bureau, office, or other establishment of the state or county government or semi-autonomous part thereof.

"Approximate location of subsurface installation" means a strip of land not more than thirty inches on either side of the exterior surface of the subsurface installation, and does not refer to the depth of the subsurface installation.

"Board" means the one call center board.

"Center" means the one call center.

"Damage" means:

(1) The substantial weakening of the structural or lateral support of a subsurface installation;

(2) The penetration or destruction of any protective coating, housing, or other protective device of a subsurface installation; or

(3) The partial or complete severance of a subsurface installation.

"Demolition" means the wrecking, razing, rendering, movement, or removal of a structure or mass of material by means of tools, equipment, or the placement and discharge of explosives.

"Emergency" means a sudden, unexpected occurrence involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of or damage to life, health, property, or essential public services.

"Excavation" means any operation in which earth, rock, or other material in the ground is moved, removed, or otherwise displaced by means of tools, equipment, or explosives, including but not limited to the following: grading, trenching, digging, ditching, boring, drilling, auguring, tunneling, scraping cable or pipe plowing and driving, demolition, and dredging.

"Excavator" means any person who performs any excavation.

"Inquiry identification number" means the number issued by the center to every excavator who contacts the center for the purpose of excavating.

"One call center" means an organization of operators of subsurface installations that provides advance warning to excavators of the location of subsurface installations in the area of an excavation for the purpose of protecting those installations from damage.

"Operator" means any person who owns, operates, or maintains a subsurface installation.

"Person" means any individual, firm, joint venture, partnership, corporation, association, agency, cooperative or joint stock association, contractor, subcontractor, operator, or other entity.

"Subsurface installation" means any pipeline, conduit, cable, duct, wire, sewer line, storm drain, vault, or other structure that is located underground.

"Working day" means every day from 7 a.m. to 5 p.m., except Saturday, Sunday, or any federal or state holiday.

§269-B One call center board. There shall be a one call center board for the purpose of implementing this part. The board shall consist of thirteen voting members and one ex officio nonvoting member. Of the voting members:

(1) Nine shall be appointed by the governor as follows:

(A) One from the gas utility industry;

(B) One from the electric utility industry;

(C) One from the telecommunications utility industry;

(D) One from the pipeline operator industry;

(E) Two from the general contractors association of Hawaii;

(F) Two from the building industry association of Hawaii; and

(G) One from the Hawaii State Association of Counties to represent all county agencies in the counties of Hawaii, Kauai, and Maui;

(2) One shall be the manager and chief engineer of the Honolulu board of water supply, or the manager and chief engineer's representative;

(3) One shall be the director of the city and county of Honolulu department of facility maintenance, or the director's representative;

(4) One shall be the director of the state department of transportation, or the director's representative; and

(5) One shall be the chairperson of the public utilities commission or the chairperson's representative.

A representative of the one call center shall serve as an ex officio nonvoting member of the board. No member shall receive any compensation for the member's services, but each shall be reimbursed for necessary travel expenses incurred in the performance of the member's duties.

§269-C Powers and duties of board. In addition to any other powers and duties authorized by law, the board shall:

(1) Adopt, amend, or repeal rules pursuant to chapter 91 as it may deem necessary to effectuate this part. The rules adopted shall have the force and effect of law and may include but are not limited to rules that:

(A) Forbid acts or practices deemed by the board to be detrimental to the accomplishment of the purposes of this part; and

(B) Require operators and excavators to make reports to the board containing information that will enable the board to improve the accomplishment of this part;

(2) Enforce this part and any rules adopted pursuant thereto;

(3) Issue binding interpretations or declaratory rulings, and conduct contested case proceedings pursuant to chapter 91;

(4) Subpoena witnesses and documents, administer oaths, and receive affidavits and oral testimony, including telephonic and electronic communications;

(5) Require the reimbursement of fees and costs under this part between the State, counties, excavators, and operators when deemed appropriate to enforce this part; and

(6) Publish and distribute pamphlets and circulars and conduct educational programs in furtherance of this part.

§269-D One call center established; financing. (a) By January 1, 2005, the board shall establish and begin administration of a one call center that provides advance warning to excavators in this State, of the location of subsurface installations in the area of an excavation for the purpose of protecting those installations from damage. In establishing the center, the board shall consider the availability of experienced one call center providers. The board shall award administration of the center to the provider the board determines to be best qualified to provide center services. In reviewing a provider's qualifications, the board shall consider cost, quality of service, experience, and other factors the board deems appropriate.

(b) To establish and finance the operation of the center:

(1) The board may use legislative appropriations from the public utilities commission special fund, fees from all operators, and fees from excavators using the center;

(2) All operators of subsurface installations in this State shall be members of and share in the costs of the center, except where:

(A) All of the operator's subsurface installations are located on property owned exclusively by that operator; and

(B) The operator has not authorized another operator to cross the property;

(3) Pursuant to rules adopted by the board, any agency required to participate as an operator may charge a reasonable fee in an amount sufficient to cover the administrative and operational costs required by this part;

(4) A public utility required to participate as an operator may recover the administrative and operational costs required by this part through a surcharge or its rate case; and

(5) Civil penalties imposed pursuant to this part shall be used by the center to educate the operating and excavating community in Hawaii and to reduce the center's operating costs.

§269-E Notification of excavation; inquiry identification number. (a) Except in an emergency, every excavator planning to conduct an excavation on public or private property shall notify the center of the excavation at least five working days but not more than fourteen calendar days prior to commencing excavation; provided that an excavator need not contact the center if the excavation is:

(1) On private property;

(2) The private property is owned exclusively by the excavator; and

(3) No operator has been authorized to cross the property.

The excavator shall provide to the center a description of the excavation site that states the county, place, and address or description of where the excavation will take place, including but not limited to the nearest intersecting street, side of street, footages, or other tie-in measurements as needed.

(b) The center shall provide an inquiry identification number to an excavator who contacts the center and shall within the time specified by rule under this part notify any operator known to have a subsurface installation in the area of the proposed excavation. The inquiry identification number shall remain valid for not more than fourteen calendar days from the date of issuance, and after that date shall require center revalidation. An excavator may revalidate the inquiry identification number by applying to the center for revalidation within the time specified by rule under this part. The excavator shall maintain a valid inquiry identification number for the duration of the excavation.

(c) The center shall maintain a record of all notifications by and from excavators and operators for a period of not fewer than three years.

§269-F Excavation permits. A permit to excavate shall be issued in advance of the excavation by the appropriate agency or agencies; provided that no permit issued by any agency shall be valid unless the applicant possesses a valid inquiry identification number. If an agency that has issued a permit determines that an excavator conducting an excavation does not possess a valid inquiry identification number, the agency shall shut down the excavation, cancel the permit, and require the excavator to re-submit the excavation permit application.

§269-G Marking of excavation site. (a) The excavator shall delineate the area to be excavated with white spray chalk or other suitable markings prior to calling the center. The excavator shall indicate the entire dimension of the excavation by known industrial practices and display the excavator's name, abbreviations, or initials next to or in the white spray chalk markings to identify the excavation site.

(b) When an excavator delineates an area to be excavated with white spray chalk, the area shall not be:

(1) Misleading to the public using affected streets and highways;

(2) Subject to misinterpretation as a traffic or pedestrian control; and

(3) Construed as duplicative.

(c) Where an excavator determines that delineating with white spray chalk may be misleading, misinterpreted, or duplicative as specified under subsection (b), the excavator shall inform the center that the area to be excavated shall instead be identified with flags, stakes, or stake chasers marked with the excavator's name, abbreviations, or initials, to enable the operator to determine the area of excavation.

§269-H Identification of subsurface installations by operator. (a) Any operator who receives timely notification from the center of any proposed excavation work pursuant to section 269-E(b) shall within five working days of that notification or before the start of the excavation work, whichever is later, or at a later time mutually agreeable to the operator and the excavator:

(1) Advise the excavator of the approximate location of the operator's subsurface installations that may be affected by the excavation, and locate and field mark in conformance with the American Public Works Association Uniform Color Code the approximate location and the number of subsurface installations that may be affected by the excavation to the extent and degree of accuracy that the information is available, either in the records of the operator or as determined through the use of standard locating techniques; or

(2) Advise the excavator that the operator does not operate any subsurface installations that may be affected by the excavation.

The operator shall promptly notify the center when the operator has fulfilled the requirements of this section. After receiving this notification from all affected operators, the center shall promptly provide notice to the excavator as specified under section 269-I(1).

(b) The excavator shall notify the center of any operator's failure to comply with this section and of the applicable inquiry identification number.

§269-I Commencement of excavation. The excavator may begin excavation work:

(1) After receiving notice from the center that all affected operators have fulfilled the requirements of section 269-H;

(2) At a time mutually agreeable to the operator and the excavator; or

(3) Five working days after the excavator provides notice of the excavation to the one call center pursuant to section 269-E(a).

269-J Re-marking of operator's subsurface installation. (a) If at any time during an excavation for which there is a valid inquiry identification number an operator's field markings are no longer reasonably visible, the excavator shall shut down the excavation and contact the center and request re-marking of the subsurface installations. The center shall contact the operator and request re-marking.

(b) Upon receiving timely re-notification pursuant to this section, the operator shall within five working days, and to the extent necessary, re-mark those subsurface installations that may be affected by the excavation in conformance with section 269-H(a)(1). The operator shall promptly notify the center when the requirements of this section are fulfilled.

(c) If the excavator maintains the operator's field markings, then the excavator, when extending a location request ticket through the center, shall not request the operator to re-mark the operator's subsurface installations.

(d) The excavator shall notify the center of any operator's failure to comply with this section and of the applicable inquiry identification number.

§269-K Excavation shutdown. If after a request for re-marking under section 269-J the excavator determines that the operator's field markings are still no longer reasonably visible, the excavator shall shut down the excavation. The excavator may continue excavation:

(1) After the center notifies the excavator that the operator has fulfilled the requirements of section 269-J(b); or

(2) Five working days after the excavator requests re-marking pursuant to section 269-J(a).

§269-L Excavation procedures. (a) Before using any power-operated or power-driven excavating equipment, the excavator shall determine the exact location of subsurface installations in conflict with the excavation by first excavating down to the depth of the excavation with the appropriate hand tools within the area of the approximate location of the subsurface installations, as determined by field markings or the approximate location provided by operators; provided that power-operated or power-driven excavating may be used:

(1) For the removal of any existing pavement if there are no subsurface installations contained in the pavement; or

(2) Within the approximate location of a subsurface installation by mutual agreement between the operator and the excavator.

(b) If after making every reasonable effort to locate the subsurface installation, the excavator cannot determine the exact location by hand excavation as set forth in subsection (a), the excavator shall request that the operator provide additional information through the center to locate the subsurface installation. The operator shall within two working days provide any information that is available to the operator to aid the excavator in determining the exact location.

(c) If after making every reasonable effort to locate the subsurface installation with the additional information provided pursuant to subsection (b) the excavator still cannot determine the exact location of the subsurface installation by hand excavation, the excavator shall notify the center. The center shall then:

(1) Require the operator to determine the exact location of the operator's subsurface installation with appropriate hand tools; or

(2) Allow the excavator to use powered equipment to continue the excavation, with on-site supervision by the operator.

(d) Each excavator responsible for any excavation that results in contact with, exposure of, or damage to a subsurface installation shall before continuing excavation in the immediate area of the subsurface installation:

(1) Immediately notify the operator of the location and nature of the damage; and

(2) Allow the operator reasonable time, consistent with industry practice, to arrange for and make any necessary repairs to the subsurface installation.

(e) If the damage to a subsurface installation creates an emergency situation, the excavator shall:

(1) Immediately notify the enhanced 911 emergency service and the operator of the facility; and

(2) Minimize the hazard until the arrival of the enhanced 911 emergency service authority or the operator.

§269-M Penalties. (a) An action for the enforcement of penalties pursuant to this part shall be brought before the board by the State, county, excavator, or any operator that received the inquiry identification number from the excavator. No insurance policy shall provide coverage for penalties or legal fees and costs under this part.

(b) Any excavator or operator who negligently violates any requirement of this part:

(1) Shall be subject to a civil penalty not to exceed $5,000 per day for each violation; and

(2) May be required, at the expense of the violator, to participate in an educational program conducted by the center; provided that any excavator who negligently violates section 269-E(a) shall be required, at the expense of the excavator, to participate in an educational program conducted by the center.

The penalties imposed under paragraph (1) shall not exceed $50,000 for any related series of violations occurring within a calendar year.

(c) Any excavator or operator who wilfully or recklessly violates any requirement of this part shall be:

(1) Subject to a civil penalty not to exceed $10,000 per day for each violation; and

(2) Required, at the expense of the violator, to participate in an educational program conducted by the center.

The penalties imposed under paragraph (1) shall not exceed $100,000 for any related series of violations occurring within a calendar year.

(d) The penalties imposed pursuant to this part and the propriety of any settlement or compromise concerning penalties shall be determined by the board after a hearing in accordance with chapter 91.

(e) In determining the penalties or the amount agreed upon in a settlement or compromise, the board shall consider:

(1) The gravity of the violation;

(2) Whether the excavator or operator charged with the violation attempted in good faith to comply with this part, before and after notification of the violation; and

(3) Any history of previous violations of this part by the operator or excavator.

(f) If any penalties imposed pursuant to this part are not complied with within the period that the board directs, the attorney general shall institute a civil action in circuit court for compliance of the same.

(g) Any person aggrieved by any board determination, rule, order, or other action pursuant to this part may, within thirty days after the board's action, commence proceedings to obtain judicial review by the circuit court by filing a notice of appeal in that court. The trial by the circuit court shall be de novo. The final judgment or decree of the circuit court shall be subject to review by appeal in the same manner and form as other appeals from that court. In addition to civil penalties imposed, the violator shall reimburse the prevailing party for legal fees and costs incurred by the prevailing party pursuant to the judicial review.

(h) Notwithstanding any other law to the contrary, the penalties provided by this part are separate from and in addition to any other remedies, civil or criminal, otherwise provided by law."

SECTION 2. There is appropriated out of the public utilities commission special fund of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2004-2005 to establish and operate a one call center.

The sum appropriated shall be expended by the public utilities commission to carry out the purposes of this Act.

SECTION 3. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 4. This Act shall take effect on July 1, 2004, and shall be repealed on December 31, 2007.

INTRODUCED BY:

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