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16 July 2018
Underground utilities and pipelines pose potential problems for excavators and other contractors performing work below ground. Whether your business involves the construction of buildings primarily above ground or running pipes or cables below, there are issues to consider if your construction involves excavations.
In most states, an excavator has a duty to request the location of underground utility facilities and underground pipelines through its state's notification center. There are federal regulations that also touch on excavation best practices, such as OSHA's (the Occupational Safety and Health Administration) Specific Excavation Requirements found in 29 CFR 1926.651.
There are two primary sources of law that govern excavations around underground utilities and pipelines in Texas. These two sources are the Underground Facility Damage and Prevention Act, and the Underground Pipeline Damage Prevention Rules.
The Texas Underground Facility Damage and Prevention Act, also known as the state's "One Call Law," is located in Chapter 251 of the Texas Utility Code. The One Call Law outlines the duties of excavators and utility operators when an excavation is planned in the area of telecommunications and electrical underground facilities, as well as in the vicinity of gas pipelines and other types of underground utilities. As defined in Sec. 251.002, an underground facility includes, among others, those that "produce, store, convey, transmit, or distribute" electrical energy, gas, petroleum, steam, and telecommunications services. Util. § 251.002.
The Underground Pipeline Damage Prevention Rules are located in Chapter 18 of the Texas Administrative Code. Implemented by the Railroad Commission of Texas, the Pipeline Rules apply to those with the intent to excavate near an "underground pipeline containing flammable, toxic, or corrosive gas, a hazardous liquid, or carbon dioxide." 16 Admin. § 18.3(a).
Excavators and utility operators have distinct responsibilities when it comes to the requirements of the state notification system. Excavators are required to notify the state notification center of an intent to dig with very precise information, such as the exact location of the excavation site, the excavator's contact information, and the starting date and time of the proposed dig.
Class A utility providers are required by law to respond to the location requests through the state notification center. The One Call Law defines Class A underground facilities as those that "produce, store, convey, transmit, or distribute" electrical energy, gas, petroleum, steam, and telecommunications services. Util. § 251.002. All Class A utility providers doing business in the State of Texas are required to participate in the notification center process. Although the duty is clearly on the utility provider to belong to the notification system and to mark its lines, Texas law does not require water or sewer operators (Class B utility providers) to be members of the Texas Notification System. An excavator should plan to contact those providers directly.
The utility operator is required mark the approximate location of its underground facilities within 48 hours and is required to mark lines with the color coding standards outlined by the American Public Works Association.
An operator who does not comply with the One Call Law shifts liability for damage to the lines from the excavator to the operator. An excavator who fully complies with its duties under the One Call Law will not be liable for damages to underground lines that were not marked by the utility operator. Id. at § 251.157(c). However, even if an underground utility is not marked correctly, the excavator may have partial liability if the excavator did not comply with the One Call Law. See Bechtel Corp v. Citgo Prods. Pipeline Co., 271 S.W.3d 989, 913 (Tex. App.—Austin 2008, no pet.).
Of course, marked lines only indicate the approximate location of underground utilities. Ultimately, the excavator must use care to avoid damaging marked lines and must take all reasonable steps to protect underground facilities, pipelines, and on-site people from harm.
For further information on this topic please contact Courtney Lynch at Kilpatrick Townsend & Stockton LLP by telephone (+1 281 809 4100) or email (firstname.lastname@example.org). The Kilpatrick Townsend & Stockton LLP website can be accessed at www.kilpatricktownsend.com.
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