Trial Engrossment of Amendment A05649 to House Bill 2189 P.N. 2859, Regular Session 2023-2024

A05649

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2189

Session of

2024

INTRODUCED BY MATZIE, MARSHALL, MARKOSEK, BOROWSKI, CIRESI,

MALAGARI, MUNROE, PISCIOTTANO, STEELE, HARKINS, SCHLOSSBERG,

SANCHEZ, HADDOCK, D. MILLER, NEILSON, JOZWIAK, JAMES, DALEY,

MENTZER, SAMUELSON, DELLOSO, BELLMON, WARREN, CONKLIN,

KINSEY, GREEN, KENYATTA AND ISAACSON, APRIL 8, 2024

REFERRED TO COMMITTEE ON CONSUMER PROTECTION, TECHNOLOGY AND

UTILITIES, APRIL 8, 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 One Call System, for duties of designers, for

duties of excavators, for duties of project owners, for

damage prevention committee, and for compliance orders and

administrative penalties and for expiration.; providing for

action for recovery of penalty or forfeiture; and further

providing for expiration.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "alleged violation,"

"emergency," "excavation work," "facility owner," "injury,"

"line" or "facility," "locate request," "minor routine

maintenance" "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.

* * *

"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 an excavator. The

term does not include a sketch made for the purpose of obtaining

a permit relating to excavation work.

"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

A05649 - 2 -

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.

* * *

"Facility owner" means the public utility or agency,

political subdivision, municipality, authority, rural electric

cooperative or other person or entity who or which owns or

operates a line. [The term does not include the Department of

Transportation within a State highway right-of-way.] The term

does not include any of the following:

(1) A person serving the person's own property through the

person's own line, if the person does not provide service to any

other customer.

(2) A person using a line which the person does not own or

operate, if the use of the line does not serve more than a

A05649 - 3 -

single property.

* * *

"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.

* * *

"Line" or "facility" means an underground conductor or

underground pipe or structure used in providing electric or

communication service, or an underground pipe used in carrying,

gathering, transporting or providing natural or artificial gas,

petroleum, propane, oil or petroleum and production product,

sewage, water or other service to one or more transportation

carriers, consumers or customers of such service and the

appurtenances thereto, regardless of whether such line or

structure is located on land owned by a person or public agency

or whether it is located within an easement or right-of-way. The

term shall include unexposed storm drainage and traffic loops

that are not clearly visible. The term shall include

unconventional oil and gas well production and gathering lines

or facilities. The term shall not include stripper well lines

unless the line or facility is a regulated onshore gathering

line as defined in regulations promulgated after January 1,

2006, by the United States Department of Transportation pursuant

to the Pipeline Safety Act of 1992 (Public Law 102-508, 49

U.S.C. § 60101 et seq.) or successor regulations promulgated by

the United States Department of Transportation, if the regulated

gathering line is subject to the damage prevention program

requirements of 49 CFR § 192.614.

"Locate request" means a communication or notification

between an excavator or designer and the One Call System in

A05649 - 4 -

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.

["Minor routine maintenance" means shaping of or adding dust

palliative to unpaved roads, removal and application of patches

to the surface or base of flexible base, rigid base or rigid

surface roads by either manual or mechanized method to the

extent of the existing exposed base material, crack and joint

sealing, adding dust palliative to road shoulders, patching and

cutting of shoulders and shoulder bases by either manual or

mechanized methods to the extent of the existing exposed base,

and cleaning of inlets and drainage pipes and ditches.]

* * *

"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

and 75-22, or its successor document as determined by the One

Call System.

* * *

"Violation" means an instance when the commission determines

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

obligations of this act.

* * *

A05649 - 5 -

Section 2. Section 2(1)(ii)(B) and (iv), (10), (11) and (13)

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

subparagraph 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:

* * *

[(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 ing 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.]

* * *

(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 the member mapping

A05649 - 6 -

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:

* * *

(x) To document communications between the 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.]

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

commission relating to the commission's enforcement authority

under this act within thirty business days of the receipt of the

request.

* * *

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

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

A05649 - 7 -

locate or identify the main lines if [possible] practicable,

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.

Section 2.1. Section 3.1(d)(7) of the act is amended to

read:

Section 3.1. * * *

(d) The One Call System shall be governed by a board of

directors to be chosen by the facility owners. No less than

twenty percent of the seats on the board shall be held by

municipalities or municipal authorities. The board shall include

all of the following:

* * *

(7) [An owner or operator or a representative] Two owners or

operators or representatives of an owner or operator of

pipelines associated with conventional oil and gas wells. The

owner or operator may be a facility owner or a pipeline owner or

operator who voluntarily submits maps of its lines or facilities

to the One Call System.

* * *

Section 3. Sections 4(4) and (5), 5(2.1), (8), (15), (16)

and (17) 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:

* * *

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

Call System when a design drawing is completed.

A05649 - 8 -

(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 section 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 business days of receipt of the

request.

* * *

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

drawings to depict all lines or facilities and quality levels

obtained through the subsurface utility engineering 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 38-22

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.

(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:

A05649 - 9 -

(2.1) To 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.

* * *

(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.

* * *

(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

A05649 - 10 -

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.] commission's prosecutorial staff for appropriate

action, including the imposition of administrative penalties

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]

thirty business 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.

A05649 - 11 -

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

commission relating to the commission's enforcement authority

under this act within thirty business days of the receipt of the

request.

* * *

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

request under clause (21) to another person. The excavator shall

have the sole duty to submit a locate request under clause (21).

(23) To not repair a damaged underground facility without

having first obtained authorization from the facility owner.

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 process 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 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's

prosecutorial staff for appropriate action, including the

imposition of administrative penalties under section 7.10 .

* * *

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

A05649 - 12 -

commission through the One Call System not more than [ten]

thirty business 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 business days of the receipt of the

request.

Section 4. Section 7.8(a)(2) and (d) of the act are amended

to read:

Section 4. Section 7.8(a)(2), (d) and (e)(3) of the act are

amended and the section is amended by adding subsections to

read:

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

established as follows:

* * *

(2) A person appointed to the committee must maintain

employment within the industry the person represents and have

expertise within the operation of this act.

* * *

(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

A05649 - 13 -

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

270 days of the occurrence of the alleged violation.

(d.2) Notwithstanding any other provision of this act, in

acting upon an alleged violation, the committee or any of the

damage prevention investigators may not look beyond the

allegations contained in the report of the alleged violation or

otherwise seek to investigate or introduce information,

documentation or evidence extraneous to those matters listed in

the report of alleged violation. The committee or any of the

damage prevention investigators may not take additional action

based on any information not contained in the initial report of

alleged violation.

(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.

At a minimum, each annual report must provide relevant metrics

to demonstrate how the committee's actions further the goal of

minimizing the occurrence of line hits and enhance public

safety.

* * *

Section 5. Section 7.10 of the act is amended by adding a

A05649 - 14 -

subsection to read:

Section 7.10. * * *

(e.1) The following shall apply:

(1) A party violating this act shall pay an administrative

penalty recovered under this section to the commission within

sixty days of issuance of an informal determination under

section 7.8(b)(2), unless the party rejects the informal

determination within thirty days in accordance with section

7.8(c)(2).

(2) The commission shall impose an additional administrative

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

total of five thousand dollars ($5,000), for each day that a

party fails to pay an administrative penalty to the commission

within the time period specified under clause (1).

(3) A party subject to an informal determination under

section 7.8(b)(2) that requires the party to attend 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 impose the

additional administrative penalty specified under clause (2) for

each day the party fails to successfully complete the program

within sixty days of issuance of the informal determination.

* * *

Section 5.1. 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.

A05649 - 15 -

Section 6. Section 39 of the act is amended to read:

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

2031.

Section 7. This act shall take effect as follows:

(1) The following shall take effect immediately:

(i) The amendment of section 39 of the act.

(ii) This section.

(2) The remainder of this act shall take effect in 60

days.

A05649 - 16 -