Bill Text: OH SB152 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To modify the call before you dig notification system and to create the Underground Protection Commission of Ohio and the State Underground Protection Advisory Committee.

Spectrum: Slight Partisan Bill (Republican 3-1)

Status: (Introduced - Dead) 2009-07-02 - To Energy & Public Utilities [SB152 Detail]

Download: Ohio-2009-SB152-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 152

Senator Buehrer 

Cosponsors: Senators Wagoner, Seitz, Sawyer 

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A BILL

To amend sections 121.04, 153.64, 3781.25, 3781.26,

1

3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and

2

3781.32 and to enact sections 3781.261,

3

3781.281, and 3781.33 to 3781.38 of the Revised

4

Code to modify the call before you dig

5

notification system and to create the

6

Underground Protection Commission of Ohio and the

7

State Underground Protection Advisory Committee.

8

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 121.04, 153.64, 3781.25, 3781.26,	9
3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and 3781.32 be	10
amended and sections 3781.261, 3781.281, 3781.33, 3781.34,	11
3781.35, 3781.36, 3781.37, and 3781.38 of the Revised Code be	12
enacted to read as follows:	13

Sec. 121.04.  Offices are created within the several	14
departments as follows:	15

In the department of commerce:

16

		Commissioner of securities;		17
		Superintendent of real estate and professional licensing;		18
		Superintendent of financial institutions;		19
		State fire marshal;		20
		Superintendent of labor and worker safety;		21
		Superintendent of liquor control;		22
		Superintendent of industrial compliance;		23
		Superintendent of unclaimed funds;		24
		Underground protection commission of Ohio.		25

In the department of administrative services:

26

		State architect and engineer;		27
		Equal employment opportunity coordinator.		28

In the department of agriculture:

29

Chiefs of divisions as follows:

30

		Administration;		31
		Animal industry;		32
		Dairy;		33
		Food safety;		34
		Plant industry;		35
		Markets;		36
		Meat inspection;		37
		Consumer analytical laboratory;		38
		Amusement ride safety;		39
		Enforcement;		40
		Weights and measures.		41

In the department of natural resources:

42

Chiefs of divisions as follows:

43

		Water;		44
		Mineral resources management;		45
		Forestry;		46
		Natural areas and preserves;		47
		Wildlife;		48
		Geological survey;		49
		Parks and recreation;		50
		Watercraft;		51
		Recycling and litter prevention;		52
		Soil and water conservation;		53
		Real estate and land management;		54
		Engineering.		55

In the department of insurance:

56

		Deputy superintendent of insurance;		57
		Assistant superintendent of insurance, technical;		58
		Assistant superintendent of insurance, administrative;		59
		Assistant superintendent of insurance, research.		60

Sec. 153.64.  (A) As used in this section:

61

(1) "Public improvement" means any construction,	62
reconstruction, improvement, enlargement, alteration, or repair of	63
a building, highway, drainage system, water system, road, street,	64
alley, sewer, ditch, sewage disposal plant, water works, and all	65
other structures or works of any nature by a public authority.	66

(2) "Public authority" includes the state, or a county,	67
township, municipal corporation, school district, or other	68
political subdivision, or any public agency, authority, board,	69
commission, instrumentality, or special district of or in the	70
state or a county, township, municipal corporation, school	71
district, or other political subdivision.	72

(3) "Underground utility facilities" includes any item buried	73
or placed below ground or submerged under water for use in	74
connection with the storage or conveyance of water or sewage; or	75
electronic, telephonic, or telegraphic communications;	76
electricity; electric energy; petroleum products; manufactured,	77
mixed, or natural gas; synthetic or liquified natural gas; propane	78
gas; or other substances. "Underground utility facilities"	79
includes, but is not limited to, all operational underground	80
pipes, sewers, tubing, conduits, cables, valves, lines, wires,	81
manholes, and attachments, whether owned by any public or private	82
or profit or nonprofit person, firm, partnership, company,	83
corporation, joint stock association, joint venture, or voluntary	84
association, wherever organized or incorporated, except for a	85
private septic system in a single- or doublemulti-family dwelling	86
utilized only for that dwelling and not connected to any other	87
system.	88

(4) "Underground utility protectionProtection service" means	89
a notification center not an owner of an underground utility	90
facility, existingthat complies with the following:	91

(a) It exists for the purpose of receiving notice from public	92
authorities and from other persons that plan to prepare plans and	93
specifications for, or engage in, public improvements involving	94
digging, blasting, excavating, or other underground construction	95
activities and distributing this;	96

(b) It distributes the information described in division	97
(A)(4)(a) of this section to its members and participants;	98

(c) It has registered by March 14, 1989 with the secretary of	99
state and the public utilities commission under former division	100
(F) of this section as it existed on that date. "Registered	101
underground utility protection service" means an underground	102
utility protection service registered with the secretary of state	103
and the public utilities commission of Ohio pursuant to division	104
(F) of this section.	105

(5) "Owner of underground utility facility" does not include	106
telephone companies classified as medium or small under rule	107
4901-7-01 of the Ohio Administrative Code, owners of pipelines	108
that conduct liquid petroleum products, or cable television	109
companies to the extent that it requires membership in an	110
underground utility protection service.	111

(6)(5) "Construction area" means the area delineated on the	112
plans and specifications for the public improvement within which	113
the work provided for in the contract will be performed.	114

(B) In any public improvement which may involve underground	115
utility facilities, the public authority, prior to preparing plans	116
and specifications, shall contact the registered underground	117
utilityeach protection servicesservice and theany owners of	118
underground utility facilities that are not members of a	119
registered underground utility protection service for the	120
existence and location of all underground utility facilities	121
within the construction area. The public authority shall include,	122
in the plans and specifications for such improvement, the	123
identity and location of the existing underground utility	124
facilities located in the construction area as provided to the	125
public authority by the owner of the underground utility facility	126
and the name, address, and telephone number of each owner of any	127
underground utility facilities in the construction area that does	128
not subscribe to a registered underground utility protection	129
service. Any anticipated temporary or permanent relocation of	130
underground utility facilities deemed necessary by the public	131
authority shall be negotiated or arranged by the public authority	132
with the owners of the underground utility facilities prior to	133
the start of construction. If a temporary or permanent relocation	134
of utility facilities is necessary, the owner of the underground	135
utility facility shall be given a reasonable time to move such	136
utility facilities unless the contractor to whom the contract for	137
a public improvement is awarded or its subcontractor agrees with	138
the owner of the underground utility facility to coordinate	139
relocation with construction operations. The public authority,	140
within ten calendar days after award of a contract for a public	141
improvement, shall notify in writing all owners of underground	142
utility facilities known to be located in the construction area	143
of the public improvement of the name and address of the	144
contractor to whom the contract for the public improvement was	145
awarded. Where notice is given in writing by certified mail, the	146
return receipt, signed by any person to whom the notice is	147
delivered, shall be conclusive proof of notice.	148

(C) The contractor to whom a contract for a public	149
improvement is awarded or its subcontractor, at least two working	150
days, excluding Saturdays, Sundays, and legal holidays, prior to	151
commencing construction operations in the construction area which	152
may involve underground utility facilities, shall cause notice to	153
be given to the registered underground utility protection services	154
and the owners of underground utility facilities shown on the	155
plans and specifications who are not members of a registered	156
underground utility protection service, in writing, by telephone,	157
or in person. Where notice is given in writing by certified mail,	158
the return receipt, signed by any person to whom the notice is	159
delivered, shall be conclusive proof of notice. The owner of the	160
underground utility facility, within forty-eight hours, excluding	161
Saturdays, Sundays, and legal holidays, after notice is received,	162
shall stake, mark, or otherwise designate the location of the	163
underground utility facilities in the construction area in such a	164
manner as to indicate their course together with the approximate	165
depth at which they were installed. The marking or locating shall	166
be coordinated to stay approximately two days ahead of the	167
planned constructionSections 3781.28 to 3781.31 of the Revised	168
Code shall govern public improvements to the extent they are	169
applicable.	170

(D) If the public authority fails to comply with the	171
requirements of division (B) of this section, the contractor to	172
whom the work is awarded or its subcontractor complies with the	173
requirements of division (C) of this section, and the contractor	174
or its subcontractor encounters underground utility facilities in	175
the construction area that would have been shown on the plans and	176
specifications for such improvement had the registered underground	177
utilitya protection service or owner of the underground utility	178
facility who is not a member of a registered underground utility	179
protection service whose name, address, and telephone number is	180
provided by the public authority been contacted, then the	181
contractor, upon notification to the public authority, is entitled	182
to an increase to the contract price for itself or its	183
subcontractor for any additional work that must be undertaken or	184
additional time that will be required and is entitled to an	185
extension of the completion date of the contract for the period of	186
time of any delays to the construction of the public improvement.	187

In the event of a dispute as to the application of this	188
section, procedures may be commenced under the applicable terms of	189
the construction contract, or if the contract contains no	190
provision for final resolution of the dispute, pursuant to the	191
procedures for arbitration in Chapter 2711. of the Revised Code.	192

This section does not affect rights between the contractors	193
and the public authority for any increase in contract price or	194
additional time to perform the contract when the public authority	195
complies with division (B) of this section.	196

Any public authority who complies with the requirements of	197
division (B) of this section and any contractor or its	198
subcontractor who complies with the requirements of division (C)	199
of this section shall not be responsible to the owner of the	200
underground utility facility if underground utility lines are	201
encountered not as marked in accordance with the provisions of	202
division (C) of this section by the owner of the underground	203
utility facility, unless the contractor or its subcontractor has	204
actual notice of the underground utility facility. Except as noted	205
in this division, this section does not affect rights between the	206
contractor or its subcontractor and the owner of the underground	207
utility facility for failure to mark or erroneously marking	208
utility lines. The public authority shall not make as a	209
requirement of any contract for public improvement any change in	210
responsibilities between the public authority and the owners of	211
the underground utility facilities in connection with damage,	212
injury, or loss to any property in connection with underground	213
utility facilities.	214

The contractor or its subcontractor shall alert immediately	215
the occupants of nearby premises as to any emergency that the	216
contractor or subcontractor may create or discover at or near such	217
premises. The contractor or its subcontractor shall report	218
immediately to the owner or operator of the underground facility	219
any break or leak on its lines or any dent, gouge, groove, or	220
other damage to such lines or to their coating or cathodic	221
protection, made or discovered in the course of their excavation.	222

(E) This section does not affect rights between the public	223
authority and the owners of the underground utility facilities for	224
responsibility for costs involving removal, relocation, or	225
protection of existing underground utility facilities, or for	226
costs for delays occasioned thereby.	227

(F) An underground utility protection service shall register	228
with the secretary of state and the public utilities commission of	229
Ohio, identifying its name, address, telephone number, membership,	230
and other pertinent information. The secretary of state and	231
commission shall establish procedures for accepting such	232
registrations and providing information about registrants to	233
public authorities on request.	234

Sec. 3781.25.  As used in sections 3781.25 to 3781.323781.38	235
of the Revised Code:	236

(A) "Protection service" means a notification center, but not	237
an owner of an individual utility, that exists for the purpose of	238
receiving notice from persons that prepare plans and	239
specifications for or that engage in excavation work, that	240
distributes this information to its members and participants, and	241
that ishas registered by March 14, 1989 with the secretary of	242
state and the public utilities commission of Ohio under former	243
division (F) of section 153.64 of the Revised Code as it existed	244
on March 14, 1989that date.	245

(B) "Underground utility facility" meansincludes any item	246
buried or placed below the surface of the earthground or	247
submerged under water for use in connection with the storage or	248
conveyance of water or sewage; electronic, telephonic, or	249
telegraphic communications; television signals; electricity;	250
electric energy; crude oil; petroleum products; artificial or	251
liquefied petroleum; manufactured, mixed, or natural gas;	252
synthetic or liquefied natural gas; propane gas; coal; steam; hot	253
water; or other substances; except that it does not include.	254
"Underground utility facility" includes all operational	255
underground pipes, sewers, tubing, conduits, cables, valves,	256
lines, wires, worker access holes, and attachments, owned by any	257
person, firm, or company. "Underground utility facility" does not	258
include either of the following:	259

(1) A private septic systemssystem in a one-family or two	260
multi-family dwelling utilized only for that dwelling and not	261
connected to any other system;	262

(2) An oil or gas producing facility that is not regulated by	263
the "Natural Gas Pipeline Safety Act of 1968," 82 Stat. 720, 49	264
U.S.C. 1671, if the facility is not located in an "urbanized	265
area," as defined in section 1509.03 of the Revised Code.	266

(C) "Utility" means any owner or operator, or an agent of an	267
owner or operator, of an underground utility facility, including	268
any public authority as defined in section 153.64 of the Revised	269
Code, that owns or operates an underground utility facility,	270
except. "Utility" does not include the owners of the following	271
types of real property with respect to any underground utility	272
facility located on that property:	273

(1) The owner of a single-family or two-, three-, or	274
four-unit residential dwelling;	275

(2) The owner of an apartment complex;

276

(3) The owner of a commercial or industrial building or	277
complex of buildings, including but not limited to, factories and	278
shopping centers;	279

(4) The owner of a farm.

280

(D) "Approximate location""Tolerance zone" means the site of	281
the underground utility facility including the width of the	282
underground utility facility plus eighteen inches on each side	283
all sides of the facility.	284

(E) "DaysWorking days" excludes Saturdays, Sundays, and	285
legal holidays as defined in section 1.14 of the Revised Code and	286
"hours" excludes hours on Saturdays, Sundays, and legal holidays.	287
A single working day begins at midnight and has a duration of	288
twenty-four hours.	289

(F) "Designer" means an engineer, architect, landscape	290
architect, contractor, or other person who develops plans or	291
designs for real property improvement or any other activity that	292
will involve excavation.	293

(G) "Developer" means the person for whom the excavation is	294
made and who will own or be the lessee of any improvement that is	295
the object of the excavation.	296

(H) "Excavation" means the use of hand tools, powered	297
equipment, or explosives to move earth, rock, or other materials	298
in order to penetrate or bore or drill into the earth, or to	299
demolish any structure whether or not it is intended that the	300
demolition will disturb the earth. "Excavation" includes such	301
agricultural operations as the installation of drain tile, but	302
excludes agricultural operations such as tilling that do not	303
penetrate the earth to a depth of more than twelve inches.	304
"Excavation" excludes any activity by a governmental entity which	305
does not penetrate the earth to a depth of more than twelve	306
inches. "Excavation" excludes any underground mining operations	307
that do not involve disturbance to the earth's surface.	308

(I) "Excavation site" means the area within which excavation	309
will be performed.	310

(J) "Excavator" means the contractor or other person who is	311
or persons responsible for making the actual excavation.	312

(K) "Interstate gas pipeline" means an interstate gas	313
pipeline subject to the "Natural Gas Pipeline Safety Act of 1968,"	314
82 Stat. 720, 49 U.S.C. 1671, as amended.	315

(L) "Interstate hazardous liquids pipeline" means an	316
interstate hazardous liquids pipeline subject to the "Hazardous	317
Liquid Pipeline Safety Act of 1979," 93 Stat. 1003, 49 U.S.C.	318
2002, as amended.	319

(M) "Special notification requirements" means requirements	320
for notice to an owner of an interstate hazardous liquids pipeline	321
or an interstate gas pipeline that must be made prior to	322
commencing excavation and pursuant to the owner's public safety	323
program adopted under federal law.	324

(N) "Commercial excavator" means any excavator, excluding a	325
utility as defined in this section, that satisfies both of the	326
following:	327

(1) For compensation, performs, directs, supervises, or is	328
responsible for the excavation, construction, improvement,	329
renovation, repair, or maintenance on a construction project and	330
holds out or represents oneself as qualified or permitted to act	331
as such;	332

(2) Employs tradespersons who actually perform excavation	333
construction, improvement, renovation, repair, or maintenance on	334
a construction project.	335

(O) "Person" has the same meaning as in section 1.59 of the	336
Revised Code and also includes a public authority.	337

(P) "Positive response system" means an automated system	338
facilitated by a protection service allowing a utility to	339
communicate to an excavator the presence or absence of any	340
conflict between the existing underground utility facilities and	341
the proposed excavation site.	342

(Q) "Project" means any undertaking by a private party of an	343
improvement requiring excavation.	344

(R) "Public authority" has the same meaning as in section	345
153.64 of the Revised Code.	346

(S) "Improvement" means any construction, reconstruction,	347
improvement, enlargement, alteration, or repair of a building,	348
highway, drainage system, water system, road, street, alley,	349
sewer, ditch, sewage disposal plant, water works, and all other	350
structures or works of any nature.	351

(T) "Emergency" means an unexpected occurrence causing a	352
disruption or damage to an underground utility facility that	353
requires immediate repair or a situation that creates a clear and	354
imminent danger that demands immediate action to prevent or	355
mitigate loss of or damage to life, health, property, or	356
essential public services.	357

(U) "Nondestructive manner" means using low-impact, low-risk	358
technologies such as hand tools, or hydro or air vacuum	359
excavation equipment.	360

(V) "Habitual or willful non-complier" means a person,	361
utility, or commercial excavator that has consistently or	362
continually failed to comply with or purposefully or knowingly	363
disregarded the provisions set forth in sections 3781.25 to	364
3781.32 of the Revised Code.	365

Sec. 3781.26.  (A) Each utility that owns or operates	366
underground utility facilities shall participate in and register	367
the location of its underground utility facilities with a	368
protection service that serves the area where the facilities are	369
located. A utility may elect to participate in the service on a	370
limited basis and if it does so, it shall register the location of	371
its underground utility facilities only by identifying the	372
municipal corporations, and outside the limits of a municipal	373
corporation, the townships by county and, where applicable, the	374
immediate geographic area in which it has facilities. The service	375
shall establish reasonable fees for limited basis participants.	376
Any utility that elects to participate on a limited basis shall	377
fully participate in and register the location of its underground	378
utility facilities with the appropriate protection service within	379
four years after the effective date of this amendment.	380

(B) Protection services, utilities, commercial excavators,	381
excavation equipment dealers, the public utilities commission of	382
Ohio, the board of building standards, local law enforcement	383
agencies, and fire departments should publicize the importance of	384
ascertaining the location of underground utility facilities	385
before excavating and the use of protection services to ascertain	386
that information.	387

(C) A protection service shall maintain records of	388
notifications received from developers, designers, and excavators,	389
and of its notifications made to utilities, developers, designers,	390
and excavators, under sections 3781.27 and 3781.28 of the Revised	391
Code. The records of a protection service shall identify by	392
reference number, the notifications it received regarding a	393
proposed excavation site, the notifications it provided regarding	394
a proposed excavation site, and the date and time of each	395
notification.	396

(D) Each utility fully participating in a protection service	397
pursuant to this section shall also participate in its affiliated	398
positive response system. Each utility participating in a	399
protection service on a limited basis shall directly communicate	400
to the excavator the presence or absence of any conflict between	401
the existing underground utility facilities and the proposed	402
excavation site.	403

Sec. 3781.261. Not later than four years after the effective	404
date of this section, every commercial excavator shall be a member	405
of a protection service, and that protection service shall impose	406
a reasonable membership fee.	407

Sec. 3781.27. Sections 3781.27 to 3781.32 do not apply to	408
"public improvements" as defined in section 153.64 of the Revised	409
Code.	410

(A) In order to ascertain the name of each utility with	411
underground utility facilities located at the proposed excavation	412
site and the types and approximate locationtolerance zones of	413
those facilities based on up-to-date records of the utility, any	414
developer who is planning a project that will require excavation	415
shall notify theeach protection service of the location of the	416
proposed excavation site.	417

(B) Except in the case of limited basis participants, the	418
each protection service shall provide notice of the proposed	419
excavation to each participant in the service that has	420
underground utility facilities in the area of the proposed	421
excavation site. In the case of limited basis participants, the	422
each protection service shall notify the developer of the name of	423
each limited basis participant with underground utility	424
facilities within the municipal corporation or township and	425
county of the proposed excavation site, and the developer shall	426
contact that utility.	427

(C) Each utility that has any underground utility facilities	428
in the area of the proposed excavation site shall notify the	429
developer of the approximate locationstolerance zones and	430
description of the utility's underground utility facilities	431
located at the proposed excavation site, or that the utility does	432
not have any underground utility facilities at the site. The	433
utility shall make this notification within ten working days of	434
receiving a notice under division (B) of this section or by a	435
later date acceptable to the developer and utility. In the case	436
of an interstate hazardous liquid pipeline or an interstate gas	437
pipeline, the utility also shall provide written notice to the	438
developer of any special notification requirements.	439

(D) The utility shall determine if any relocation, support,	440
or removal, or protective steps beyond those described in	441
divisions (A)(1) to (D)(4) of section 3781.30 of the Revised Code	442
are required in order to prevent disturbance or interference with	443
the underground utility facilities during excavation. The utility	444
shall determine whether it will permit the developer to make those	445
adjustments, and, if the adjustments are to be made by the	446
utility, a reasonable amount of time necessary to make those	447
adjustments.	448

(E)(1) Based on the information provided pursuant to division	449
(C) of this section, the developer shall indicate the approximate	450
locationstolerance zones of underground utility facilities either	451
on or with the plans prepared for the project. The developer	452
shall include with the plans the names, addresses, and telephone	453
numbers of utilities with underground facilities at the	454
excavation site, indicating which utilities are limited basis	455
participants; the name and telephone number of theany	456
appropriate protection service; and any required adjustments as	457
described in division (D) of this section, including the	458
reasonable time necessary for the utility to make those	459
adjustments. In the case of an interstate hazardous liquid	460
pipeline or an interstate gas pipeline, the developer also shall	461
include any special notification requirements.	462

(2)(a) Except as otherwise provided in division (E)(2)(b) of	463
this section, the developer shall provide the plans to the	464
commercial excavator before excavation beginsprior to entering	465
into a contract that involves such excavation. If the developer	466
does not prepare written plans or have any written plans prepared,	467
hethe developer shall otherwise provide the approximate	468
locationstolerance zones, identifying information on the	469
utilities, information on required adjustments, and any special	470
notification requirements to the commercial excavator before	471
excavation begins.	472

(b) When the developer is a utility, hethe utility shall	473
provide either the plans or the approximate locationstolerance	474
zones, identifying information on the utilities, information on	475
required adjustments, and any special notification requirements to	476
the excavator before excavation begins.	477

(3) The developer shall design the project taking into	478
account the approximate locationtolerance zone of existing	479
underground utility facilities in order to prevent, as far as is	480
practicable, disturbance or interference with those facilities.	481

(4) When a project includes installation of new underground	482
utility facilities, the developer shall attempt to design the	483
installation so that at least a twelve-inch clearance is provided	484
between the facilities. No facility shall be installed with less	485
than a twelve-inch clearance unless the owners of existing	486
facilities are notified, in writing, prior to installation.	487

(F)(1) This section does not apply in the case of a utility	488
making emergency repair to its own underground utility facility.	489

(2) This section does not apply in the case of the owner of	490
the types of real property identified in divisions (C)(1) to (4)	491
of section 3781.25 of the Revised Code, unless the owner employs a	492
designer to make written plans for work that will involve	493
excavation. If the owner employs a designer, the designer shall	494
contact the utility protection service and utilities that are	495
limited basis participants in accordance with divisions (A) and	496
(B) of this section, and shall include in or with the plans the	497
information required under division (E) of this section. The owner	498
shall provide that information to the excavator.	499

Sec. 3781.28.  (A) Except as otherwise provided in divisions	500
(C), (D), (E), and (F) of this section, at least forty-eight hours	501
two working days, excluding the day the notice is given, but not	502
more than ten working days before commencing excavation, the	503
excavator shall notify theeach protection service of the	504
location of the excavation site and the date on which excavation	505
is planned to commence.	506

(B) On receipt of notice under division (A) of this section,	507
theeach protection service shall provide to each utility with	508
underground utility facilities located at the excavation site,	509
notice of the proposed excavation, except that in the case of a	510
limited basis participant in the service, the service shall notify	511
the excavator of the name of each limited basis participant with	512
underground utility facilities located in the municipal	513
corporation or township and county of the proposed excavation	514
site, and the excavator shall notify the limited basis participant	515
of the proposed excavation at least forty-eight hourstwo working	516
days, excluding the day the notice is given, but not more than ten	517
working days before commencing excavation. The excavator may make	518
this notification by telephone.	519

(C) In the case of an interstate hazardous liquids pipeline	520
or interstate gas pipeline, the excavator shall comply with the	521
special notice requirements of the public safety program of the	522
owner of the pipeline as indicated in the plans or otherwise	523
provided to the excavator in accordance with division (E) or	524
(F)(2) of section 3781.27 of the Revised Code.	525

(D) If it has been determined pursuant to division (D) of	526
section 3781.27 of the Revised Code that relocation, support,	527
removal, or protective steps are necessary, the excavator shall	528
provide earlier notice to the utility in order to provide the	529
utility with reasonable time to coordinate making the adjustments	530
with actual excavation.	531

(E) If an excavation will cover a large area and will	532
progress from one area to the next over a period of time, the	533
excavator shall provide written notice of excavation with	534
projected timelines for segments of the excavation as the	535
excavation progresses in order to coordinate the marking of	536
approximate locationstolerance zones with actual excavation	537
schedules. Under such circumstances, the utility and excavator	538
shall determine a mutually agreed upon marking schedule based on	539
the project schedule. Once such a schedule is established, the	540
marking and notification requirements set forth in division	541
(A)(1) of section 3781.29 of the Revised Code shall not apply.	542

(F)(1) In the case of a utility that is making an emergency	543
repair to its own underground utility system or a governmental	544
entity making an underground emergency repair to traffic control	545
devices, as defined in section 4511.01 of the Revised Code, used	546
on any street or highway under the entity's jurisdiction, the	547
utility or governmental entity shall notify theeach protection	548
service and each limited basis participant of the excavation	549
site. This notice need not occur before commencing excavation.	550

(2) In the case of an excavation at the site of real property	551
of the type described in divisions (C)(1) to (4) of section	552
3781.25 of the Revised Code:	553

(a) If the owner of the property is the excavator, this	554
section does not apply unless the excavation is planned for an	555
area where a utility easement is located or, a public	556
right-of-way;, or where utility facilities are known to serve the	557
property.	558

(b) If the owner of the property employs an excavator, the	559
excavator shall comply with the requirements of this section. If	560
the owner did not employ a designer to make written plans, the	561
excavator shall provide the notice required under this section to	562
theeach protection service and to each utility that is a limited	563
basis participant in thea protection service that has	564
underground utility facilities within the municipal corporation	565
or township and county of the excavation site, as indicated by	566
the protection service.	567

Sec. 3781.281. Each protection service shall annually	568
allocate a portion of its revenue generated from membership fees	569
and deposit it in the state underground protection fund in	570
accordance with section 3781.38 of the Revised Code. The aggregate	571
revenue annually deposited in the fund from all protection	572
services pursuant to this section shall not exceed fifty thousand	573
dollars.	574

Sec. 3781.29.  (A)(1) Except as otherwise provided in	575
division (A)(2) of this section, within forty-eight hourstwo	576
working days, excluding the day of receiving notice under section	577
3781.28 of the Revised Code, each utility shall review the status	578
of its facilities within the excavation site, locate and mark the	579
approximate locationtolerance zone of its underground utility	580
facilities at the excavation site in such a manner as to indicate	581
their course, and report the appropriate information to the	582
protection service for its positive response system. If a utility	583
does not mark its underground utility facilities or contact the	584
excavator within forty-eight hours of receiving notice under	585
section 3781.28 of the Revised Codethat time, the utility is	586
deemed to have given notice that it does not have any facilities	587
at the excavation site. If the utility cannot accurately mark	588
the approximate locationtolerance zone, the utility shall mark	589
the approximate locationtolerance zone to the best of its	590
ability, notify the excavator using the positive response system	591
that the markings may not be accurate, and provide additional	592
guidance to the excavator in locating the facilities as needed	593
during the excavation. If the utility cannot locate its	594
underground utility facilities or cannot estimate them with	595
reasonable accuracy and provide notice of their locations to the	596
excavator, and any damage occurs to the underground utility	597
facility through the excavation, the utility operating such an	598
underground utility facility shall be responsible for repairing	599
such damages and shall be liable for any injury of persons or	600
property resulting from the damaged underground utility	601
facility.	602

(2) In the case of an interstate hazardous liquids pipeline	603
or an interstate gas pipeline, the owner of the pipeline shall	604
locate and mark the approximate locationtolerance zone of its	605
pipeline within the time frame established in the public safety	606
program of the owner.	607

(B) Unless a facility actually is uncovered or probed by the	608
utility or excavator, any indications of the depth of the facility	609
shall be treated as estimates only.	610

(C) A utility shall mark the approximate locationtolerance	611
zone of its underground facilities using the following color	612
codes:	613

Type of Underground				614
Utility Facility		Color		615
Electric power transmission		Safety red		616
and distribution				617
Gas transmission and distribution		High visibility safety yellow		618
Oil transmission and distribution		High visibility safety yellow		619
Dangerous materials, product		High visibility safety yellow		620
lines, and steam lines				621
Telephone and telegraph systems		Safety alert orange		622
Police and fire communications		Safety alert orange		623
Cable television		Safety alert orange		624
Water systems		Safety precaution blue		625
Slurry systems		Safety precaution blue		626
Sewer lines		Safety green.		627

(D) Except as otherwise provided in divisions (E) and (F) of	628
this section, prior to notifying a protection service of the	629
proposed excavation, an excavator shall define and pre-mark the	630
immediate area and the perimeter of the proposed excavation site.	631
Proposed construction or excavation markings shall be made in	632
white through the use of an industry-recognized method such as	633
chalk-based paint, flags, stakes, or other method applicable to	634
the specific site and when possible shall indicate the	635
excavator's identity by name, abbreviation, or initial.	636

(E)(1) Before beginning an emergency excavation, or as soon	637
as possible thereafter, an excavator shall make every effort to	638
notify each protection service of the excavation. In providing	639
notification, the excavator shall provide, at a minimum:	640

(a) The name of the individual notifying the protection	641
service;	642

(b) The name, address, any electronic mail address, and any	643
telephone and facsimile numbers of the excavator;	644

(c) The specific location of the excavation site;

645

(d) A description of the excavation.

646

(2) Upon receiving the information set forth in division	647
(E)(1) of this section, the protection service shall provide the	648
excavator with a reference number and a list of utilities that the	649
protection service intends to notify. The protection service shall	650
immediately notify each utility that according to the	651
registration information provided under section 3781.26 of the	652
Revised Code has facilities located within the designated area of	653
the emergency excavation.	654

(3) Any utility notified of an emergency excavation may	655
inspect all of its underground utility facilities located at the	656
emergency excavation site and may take any otherwise lawful action	657
it considers necessary to prevent disturbance to or interference	658
with its facilities during excavation.	659

(F) An excavator is not required to pre-mark a proposed	660
excavation as provided in division (D) of this section in any of	661
the following situations:	662

(1) The utility can determine the precise location,	663
direction, size, and length of the proposed excavation site by	664
referring to the notification provided by the protection service	665
pursuant to sections 3781.27 and 3781.28 of the Revised Code.	666

(2) The excavator and the affected utility have had an	667
on-site, pre-construction meeting for the purpose of pre-marking	668
the excavation site.	669

(3) The excavation involves replacing a pole that is within	670
five feet of the location of an existing pole.	671

(4) Pre-marking by the excavator would clearly interfere with	672
pedestrian or vehicular traffic control.	673

Sec. 3781.30. (A) When making excavations using traditional	674
or trenchless technologies, the excavator shall do all of the	675
following:	676

(A)(1) Maintain reasonable clearance between any underground	677
facility and the cutting edge or point of powered equipment;	678

(B)(2) Protect and preserve the markings of approximate	679
locationstolerance zones of underground utility facilities until	680
those markings are no longer required for proper and safe	681
excavations;	682

(C)(3) When approaching and excavating within the tolerance	683
zone of underground utility facilities while excavating with	684
powered equipment, require an individual other than the equipment	685
operator, to lookvisually monitor the excavation activity for any	686
signindication of the underground utility facility;	687

(D)(4) Conduct the excavation inwithin the vicinity of the	688
underground utility facilitytolerance zone in a careful and,	689
prudent, and nondestructive manner, excavating by hand, ifwhen	690
necessary, to determine and expose the precise location of the	691
facility and to prevent damage;	692

(E)(5) As soon as any damage is discovered, including gouges,	693
dents, or breaks to coatings, cable sheathes, and cathodic	694
protection anodes or wiring, report the type and location of the	695
damage to the utility and permit the utility a reasonable amount	696
of time to make necessary repairs;	697

(F)(6) Immediately report to the utility, the protection	698
service, and, if necessary, to the appropriate law enforcement	699
agencies and fire departments by calling 9-1-1, any damage to an	700
underground utility facility that results in escaping flammable,	701
corrosive, explosive, or toxic liquids or gas, and take	702
reasonable appropriate actions needed to protect persons and	703
property and to minimize safety hazards until those agencies and	704
departments and the utility arrive at the scene.	705

(B) When utilizing trenchless excavation methods, the	706
excavator must comply with the following requirements, in a manner	707
consistent with division (A) of this section:	708

(1) Expose and confirm all underground utility facilities at	709
each crossing point by the proposed excavation in a nondestructive	710
manner;	711

(2) Expose all parallel underground utility facilities in a	712
nondestructive manner at the beginning and end of each trenchless	713
excavation. Any parallel underground utility facility that is	714
within five feet of the proposed alignment shall also be exposed	715
every one hundred feet. Any parallel underground utility facility	716
that is within three feet of the proposed alignment shall be	717
exposed every fifty feet.	718

(3) Ensure that the final product installation maintains the	719
proper clearances of existing underground utility facilities as	720
determined pursuant to division (E)(4) of section 3781.27 of the	721
Revised Code.	722

Sec. 3781.31.  (A) When a utility marks the approximate	723
locationtolerance zone of its underground utility facilities in	724
accordance with division (A) of section 3781.29 of the Revised	725
Code, the utility may request that the excavator provide prior	726
notice to the utility of the actual commencement of the	727
excavation. An excavator that receives a request for notice under	728
this division shall provide the notice to the utility at least	729
twenty-four hoursone full working day prior to the commencement	730
of excavation. The excavator may make this notice by telephone.	731

(B) If the markings of approximate locationstolerance zones	732
made under section 3781.29 of the Revised Code are destroyed or	733
removed before excavation is completed, the excavator shall notify	734
the utility through the protection service that the markings have	735
been destroyed or removed, and the utility shall remark the	736
approximate locations within forty-eight hours of the notice	737
tolerance zones in accordance with division (A) of section	738
3781.29 of the Revised Code.	739

Sec. 3781.32.  (A) Any connections or tie-ins to existing	740
utility services within a public right-of-way shall comply with	741
permit requirements of the public agencyauthority that has	742
jurisdiction over that right-of-way.	743

(B) A developer shall not require, as a condition for	744
entering into a contract for a project that will require	745
excavation, that responsibility for performance of duties imposed	746
under sections 3781.25 to 3781.32 of the Revised Code shall be	747
assumed by a person other than the person on whom those duties are	748
imposed under those sections. This division does not prohibit a	749
utility from entering into any contract for the performance of	750
duties that are imposed on a utility under those sections.	751

(C) Nothing in sections 3728.25 to 3728.32 of the Revised	752
Code shall be construed to require a utility to relocate its	753
underground utility facilities located at an excavation site.	754

Sec. 3781.33. (A)(1) There is hereby created the state	755
underground protection advisory committee consisting of nine	756
members as appointed pursuant to this section. Five members shall	757
constitute a quorum. The governor shall make initial appointments	758
within thirty days after the effective date of this section. Of	759
the initial appointments, three shall be for terms ending on	760
January 31, 2011, three shall be for terms ending on January 31,	761
2012, and three shall be for terms ending on January 31, 2013.	762
Thereafter, terms of office shall be for three years, with each	763
term ending on the same day of the same month as did the term it	764
succeeds.	765

(2) Each member shall hold office from the date of	766
appointment until the end of the term for which the member was	767
appointed. Members may be reappointed, provided that no more than	768
two terms can be served consecutively and a period equal to one	769
term must elapse before a member is eligible to serve another	770
term.	771

(3) Vacancies shall be filled in the manner provided for	772
original appointments. Any member appointed to fill a vacancy	773
occurring prior to the expiration date of the term for which the	774
member's predecessor was appointed shall hold office for the	775
remainder of the term. A member shall continue in office	776
subsequent to the expiration date of the member's term until a	777
successor takes office or until a period of sixty days has	778
elapsed, whichever occurs first.	779

(B) The committee shall consist of nine members appointed by	780
the governor in the following manner:	781

(1) The governor shall appoint one person to represent the	782
interests of commercial excavators from a list of at least three	783
provided to the governor by the Ohio contractors association or a	784
successor organization representing the interest of commercial	785
excavators in this state;	786

(2) The board of trustees of the Ohio utilities protection	787
service shall provide the governor with a list consisting of at	788
least nine representatives of utilities subject to regulation by	789
the public utilities commission and companies not subject to	790
regulation by the commission that are engaged in the	791
transportation of natural gas by pipeline. At least three	792
individuals on the list shall represent the interest of a gas	793
company, natural gas company, or company not subject to regulation	794
by the commission that is engaged in the transportation of natural	795
gas by pipeline; at least three individuals on the list shall	796
represent the interests of an electric light company; and at	797
least three individuals on the list shall represent the interest	798
of a telephone or telegraph company. For purposes of this	799
division, "gas company," "natural gas company," "electric light	800
company," "telephone company," and "telegraph company" have the	801
same meaning as in section 4905.03 of the Revised Code. The	802
governor shall appoint from the list one person representing a	803
gas company, natural gas company, or company not subject to	804
regulation by the commission that is engaged in the transportation	805
of natural gas by pipeline; one person representing an electric	806
light company; and one person representing a telephone or	807
telegraph company to serve on the committee. No member of the	808
board of trustees of the Ohio utilities protection service shall	809
be appointed to the committee.	810

(3) The governor shall appoint one individual representing	811
the public utilities commission from a list of at least three such	812
individuals provided by the chairperson of the public utilities	813
commission.	814

(4) The governor shall appoint one individual representing	815
the interests of utilities not subject to regulation by the public	816
utilities commission from a list of at least three provided by the	817
Ohio oil and gas association or a successor organization.	818

(5) The governor shall appoint one individual representing	819
contract facility locators from a list of at least three such	820
individuals provided to the governor by the organization	821
representing their interests in this state.	822

(6) The governor shall appoint one individual from a list of	823
at least three such individuals provided to the governor by the	824
department of transportation in conjunction with the county	825
engineers association of Ohio or a successor organization.	826

(7) The governor shall appoint one individual from a list of	827
at least three provided by the organization representing the	828
interests of municipal governments in this state.	829

(C) The representative from the public utilities commission	830
shall serve as the chairperson for the initial year of the	831
committee's existence. Thereafter, the committee members shall	832
elect the committee chairperson.	833

(D) Committee members shall not be subject to the	834
requirements set forth in section 102.02 of the Revised Code.	835
Absent willful misconduct, committee members shall be immune from	836
civil liability for any act or omission in the performance of	837
their duties while serving on the committee.	838

(E) Each committee member shall receive reimbursement for	839
actual and necessary expenses incurred in the performance of	840
official business and for each mile necessarily traveled in the	841
performance of official duties.	842

Sec. 3781.34. (A) The state underground protection advisory	843
committee shall provide enforcement recommendations for sections	844
3781.25 to 3781.32 of the Revised Code and recommend resolutions	845
of complaints regarding discriminatory or unfair rates to the	846
underground protection commission of Ohio pursuant to section	847
3781.37 of the Revised Code.	848

(B) The underground protection advisory committee shall meet	849
at least four times per year and any additional times as, in its	850
judgment, are necessary. The committee may hold meetings at the	851
location and time it selects.	852

(C) As appropriate, each protection service and the	853
department of commerce shall provide the committee with meeting	854
space, staff services, and other technical and administrative	855
assistance within their respective areas of expertise. Such	856
assistance may include providing the committee with data,	857
research, statistics, and analysis and providing the committee	858
with investigators and hearing examiners.	859

The protection services, in conjunction with the underground	860
protection commission of Ohio, shall maintain any and all records	861
on behalf of the committee and make them available to the public	862
upon proper request.	863

(D) The committee may, as necessary, adopt rules to govern	864
its procedures and shall adopt rules to govern the procedure by	865
which each protection service shall forward the complaints it	866
receives to the committee pursuant to section 3781.37 of the	867
Revised Code.	868

(E) The committee may adopt an identifying mark, such as a	869
seal, logo, or brand.	870

Sec. 3781.35.  (A)(1) There is hereby created within the	871
department of commerce the underground protection commission of	872
Ohio, consisting of three members appointed by the governor, with	873
the advice and consent of the senate. Two members of the	874
commission shall constitute a quorum. The governor shall make	875
initial appointments to the commission within thirty days after	876
the effective date of this section. Of the initial appointments,	877
one shall be for a term ending January 31, 2011, one shall be	878
for a term ending January 31, 2012, and one shall be for a term	879
ending January 31, 2013. Thereafter, terms of office shall be	880
for three years, with each term ending on the same day of the	881
same month as did the term that it succeeds.	882

(2) Each member shall hold office from the date of	883
appointment until the end of the term for which the member was	884
appointed. Members may be reappointed, provided that not more than	885
two terms can be served consecutively and a period equal to one	886
term must elapse after two consecutive terms before a member is	887
eligible to serve another term.	888

(3) Vacancies shall be filled in the manner provided for	889
original appointments. Any member appointed to fill a vacancy	890
occurring prior to the expiration date of the term for which the	891
member's predecessor was appointed shall hold office for the	892
remainder of that term. A member shall continue in office	893
subsequent to the expiration date of the member's term until a	894
successor takes office or until a period of sixty days has	895
elapsed, whichever occurs first.	896

(B) The governor shall appoint members of the commission in	897
the following manner:	898

(1) One individual representing the office of the attorney	899
general;	900

(2) One individual representing the department of commerce;

901

(3) One individual representing the interests of the public.

902

(C) The commission shall elect its chairperson at its first	903
meeting to serve a one-year term. Thereafter, the commission	904
members shall annually elect the commission chairperson.	905

(D) Commission members shall not be subject to the	906
requirements set forth in section 102.02 of the Revised Code.	907
Absent willful misconduct, commission members shall be immune from	908
civil liability for any act or omission in the performance of	909
their duties while serving on the commission.	910

(E) Each commission member shall receive reimbursement for	911
actual and necessary expenses incurred in the performance of	912
official business and for each mile necessarily traveled in the	913
performance of official duties.	914

Sec. 3781.36.  (A) The underground protection commission of	915
Ohio shall meet at any time that, in its judgment, is necessary.	916
The commission may hold meetings at the location and time that	917
it selects.	918

(B) The commission shall do the following:

919

(1) Review and assess, and if necessary investigate, all	920
enforcement recommendations submitted by the state underground	921
protection advisory committee. If, pursuant to section 3781.37 of	922
the Revised Code and with a majority vote of its members, the	923
commission finds reasonable grounds indicating that a party	924
against whom a complaint has been filed is a habitual or willful	925
non-complier, it shall impose corrective action and appropriate	926
penalties.	927

(2) Review, assess, and mediate resolutions of all	928
complaints made to the committee regarding discriminatory or	929
unfair rates or fees charged by a protection service.	930

(C) The commission may do any of the following:

931

(1) Request and receive from the department of commerce	932
meeting space, staff services, and other technical assistance.	933
Such assistance may include providing the commission with data,	934
research, statistics, and analysis and providing the commission	935
with investigators and hearing examiners.	936

The commission shall maintain any and all of its records and	937
make them available to the public upon proper request.	938

(2) Adopt and utilize an identifying mark, such as a seal or	939
logo, for the authentication of its documents.	940

(3) Adopt rules to govern its procedures.

941

Sec. 3781.37. (A) A protection service shall forward all	942
complaints it receives to the state underground protection	943
advisory committee in accordance with rules adopted by the	944
committee.	945

(B) The committee shall investigate and conduct review	946
hearings regarding the complaints filed with a protection service.	947
If, after an investigation and review hearing, and with a majority	948
vote of its members, it finds reasonable grounds indicating that a	949
party against whom a complaint has been filed is a habitual or	950
willful non-complier, the committee shall provide its findings and	951
recommend corrective action and civil penalties to the underground	952
protection commission of Ohio, with such recommended civil	953
penalties not to exceed ten thousand dollars per violation	954
identified in the findings and recommendations. The commission	955
shall review any recommendations submitted by the committee	956
pursuant to this section, conduct a hearing in accordance with	957
Chapter 119. of the Revised Code, and issue a ruling regarding	958
each case.	959

(C) The committee shall investigate, review, and arbitrate	960
resolutions of any complaints about discriminatory or unfair rates	961
or fees charged by a protection service. Any party subject to	962
arbitration under this section may appeal the committee's	963
resolution of the complaint to the commission.	964

(D) In investigating complaints, the committee and commission	965
may accept information from any person appearing to show a	966
violation of any provision of sections 3781.25 to 3781.32 of the	967
Revised Code.	968

In the course of conducting an investigation, the committee	969
or commission may administer oaths, order the taking of	970
depositions, and issue subpoenas to compel the attendance and	971
testimony of persons and the production of books, accounts,	972
papers, documents, or other tangibles.	973

If a person subpoenaed pursuant to this division fails to	974
comply with the subpoena, the committee or commission may apply to	975
the court of common pleas in the county in which the person to be	976
subpoenaed resides for an order compelling compliance in the same	977
manner as compliance with a subpoena issued by the court is	978
compelled.	979

(E) Absent bad faith, any person reporting information or	980
testifying before the committee or the commission during any	981
hearing arising under sections 3781.25 to 3781.32 of the Revised	982
Code is not liable for any claims of civil damages that may arise	983
from providing such report or testimony.	984

(F)(1) The commission may impose and collect penalties for	985
violations of sections 3781.25 to 3781.32 of the Revised Code	986
brought pursuant to complaints addressed under section 3781.37 of	987
the Revised Code. Any penalty collected pursuant to this section	988
shall be deposited in the state underground protection fund as	989
provided in section 3781.38 of the Revised Code.	990

(2) No penalty imposed pursuant to this section shall exceed	991
ten thousand dollars per violation.	992

(G) The committee and commission may dismiss a complaint only	993
with a majority vote of its respective members.	994

(H) Commission decisions may be appealed to the Franklin	995
county court of common pleas.	996

Sec. 3781.38.  There is hereby created the state underground	997
protection fund in the state treasury, which shall consist of	998
moneys deposited into the fund pursuant to section 3781.281 of	999
the Revised Code, from penalties imposed for violations of	1000
sections 3781.25 to 3781.32 of the Revised Code, and from any	1001
money appropriated to it.	1002

The moneys in the fund shall be used at the discretion of the	1003
underground protection commission consistent with this section.	1004
The moneys shall first be used to pay the administration and	1005
enforcement costs incurred pursuant to sections 3781.35 to	1006
3781.37 of the Revised Code. Any moneys remaining in the fund	1007
shall be used at the discretion of the commission for activities	1008
to improve the state's underground utility facilities protection	1009
and to provide grants to organizations to fund public education	1010
and awareness programs promoting and advancing the mission and	1011
operations of the protection services.	1012

Section 2.  That existing sections 121.04, 153.64, 3781.25,	1013
3781.26, 3781.27, 3781.28, 3781.29, 3781.30, 3781.31, and	1014
3781.32 of the Revised Code are hereby repealed.	1015