A Summary of New Jersey's Underground Facility Protection Act

In the wake of last year's Edison pipeline explosion, the New Jersey Legislature moved quickly to pass an Act designed to reduce the likelihood of a recurrence. The Act improved upon the One-Number-To-Call-System plant location service, which was created to coordinate notification of an impending excavation to all affected utilities. In the past, disputes have arisen between contractors, property owners, and utilities concerning notification of an intent to excavate, the timeliness and accuracy of mark-outs, and proper excavation procedures to avoid extensive property damage or serious personal injury. This subject is important to all companies that excavate, because liability can exist under the Act and related legislation such as OSHA.

Notification Requirements.

The Act establishes a "One-Call Damage Prevention System" (OCDPS). Any person who intends to excavate must notify the OCDPS not less than three business days nor more than 10 business days prior to the commencement of excavation.

Must a homeowner who intends to create a vegetable garden give such notification? The act defines excavation and demolition by establishing a six-inch threshold for commercial activities and expressly excludes "routine residential property or right-of-way maintenance" so long as the activity is performed with non-mechanized equipment or consists of the tilling of soil for agricultural purposes no greater than 18 inches deep. Experience indicates, however, that it would be prudent for all contractors to confirm the telephone notification with certified letters to all affected utilities. A new provision in the act requires, as a condition of any permit to blast or open a road, proof to the public entity that the excavator has notified the OCDPS.

Once the operator is notified, it must stake, locate, or otherwise provide the position and number of its underground facilities "which may be affected by a planned excavation or demolition" within three business days after receipt of the notice, with certain exceptions. The Act also does not apply to emergencies, but requires nevertheless that the OCDPS be notified as early as possible and that "all reasonable precautions" be taken

Excavation and Mark Out Standards.

Assuming the excavation is covered by the act, however, one of its hallmarks is a definitive requirement that the facility be marked "at the site within 18 inches horizontally from the outside wall of the facility, in a manner that will enable the excavator to employ prudent techniques, which may include hand-dug test holes, to determine the precise position of the operator's underground facility."

The operators covered include forced sewage, telecommunications, cable T.V., electricity, oil, gas, optical signals or traffic control, petroleum products, and interstate hazardous liquid transport. The act excludes storm drains and gravity sewers.

Once marked out, the excavator may proceed to use mechanized equipment until he or she is two feet from the outside wall of the underground facility, unless the underground facility has first been located by hand-digging. Further, once excavation commences, the mark-outs must be protected until they are no longer needed. For example, if a main is being installed first, with individual services to follow later, the excavator must be careful to preserve the service mark-outs until the entire excavation is finished.

Penalties.

The act establishes severe penalties for violations. An excavator who violates any provision of the act is liable for a civil penalty of not less than $1,000 nor more than $2,000 per day for each violation, up to $25,000. The excavator may also be enjoined from further work on the project until compliance is established. Any person who violates the act with respect to an underground gas pipeline or hazardous liquid pipeline is subject to a penalty of $25,000 for each violation for each day, to a maximum of $500,000.

The most severe penalties are reserved for those who knowingly and willfully engage in an excavation without calling the OCDPS or otherwise fail to comply with the act and, as a result of which, cause damages resulting in death, serious bodily harm, or damage to property exceeding $50,000 or damages to an underground liquid pipeline causing the release of more than 50 barrels of product. These persons can be criminally prosecuted for a crime of the third degree, a felony.

Conclusion.

It is hoped that the provisions of the act will spur utilities to maintain more accurate records and perform better mark-outs than have been experienced in the past. Likewise, contractors should pay particularly close attention to documenting the notices and mark-outs and notifying the BPU where facilities have been hit as a result of inaccurate or nonexistent markings, also required by the act.