Washington enacted its Underground Utilities Act, known as the “Call Before You Dig” law, in 1984, and now every state in the nation has enacted a similar law. The law, in all states, generally provides that anyone excavating must call the 811 utility-locate hotline before digging begins to have all utilities located and marked. According to Common Ground Alliance, which monitors 811 and related services nationwide, more than 300,000 potential damage incidents involving underground utilities were reported in 2011 and more than 25 percent of the incidents involved a failure to call before digging. Although Call Before You Dig has been effective in decreasing damage to underground utilities, enforcement in Washington has been sporadic and lax. But as of January 1, the law has changed. Washington’s previous laissez-faire approach has been replaced by a strict new regime, which will result in more oversight, more enforcement, and more penalties. Are you ready?
The new law has stricter requirements for both excavators and utilities. For instance, while excavators still have to provide two to ten days’ notice of the proposed excavation, they now also must mark the excavation area in white paint before calling, must maintain utility markings for the lesser of the completion of the project or 45 days, and are explicitly prohibited from digging until the locations of all known underground utilities are marked or they have been provided with the best available information regarding known utilities that cannot be precisely located. Project owners still have a duty to identify known utilities in their bidding or contract documents, and excavators still have a duty to use reasonable care to avoid damaging utilities, including by determining the precise location of marked utilities.
Similarly, while utilities still must respond to a utility-locate request within two days, there are now stricter marking requirements, an explicit requirement to provide the best possible information regarding the presence of potentially unlocatable underground utilities, and a requirement generally to identify appurtenances and service laterals in most cases. Further, all utilities are now required to subscribe to their local one-number locator service, meaning that a call to 811 should now provide notice to all utilities in the area of the proposed excavation. Additionally, local governments now have an affirmative duty to notify gas pipeline operators when a permit is issued allowing construction or excavation within 100 feet of a gas pipeline.
The biggest changes to the law, however, are on the enforcement side.
Previously, while the Washington State Utilities and Transportation Commission the (“WUTC”) had some enforcement authority over the law as it applied to gas pipelines, no agency was explicitly charged with enforcing the law with respect to other types of buried utilities. The new law creates a 13-member safety committee made up of representatives from the construction, excavation, and utilities sectors, along with local governments and the WUTC. The safety committee is authorized to review complaints regarding alleged violations of the new law, and to refer actionable violations to the WUTC for enforcement proceedings. While it is not clear that the safety committee has authority to investigate violations independently, as opposed to responding to reports of violations, the new law also has strict damage-reporting requirements, which require utilities or excavators that observe any damage to an underground utility to report the damage within 45 days of the event. Washington is one of only about a dozen states to implement such mandatory reporting. The WUTC has now also set up an online Damage Information Reporting Tool (DIRT) that allows anyone to report such damage or suspected violations anonymously.
In addition to clarifying and strengthening enforcement authority, the new law also increases penalties for violations. Hence, Washington State can now fine violators up to $1,000 for the first violation and up to $5,000 for subsequent violations in a three-year period even if there is no damage to the utility from a violation. Damage to a gas pipeline can result in a $10,000 fine, or even conviction for a gross misdemeanor, which can mean up to 30 days in jail. The new law also continues the State’s authority to recover three times the cost of repair from any excavator who willfully or maliciously damages a marked underground utility. If an underground utility is damaged as a result of a failure to comply with all the requirements of the new law, the party that failed to comply is liable not only for such damages, but also for the other party’s reasonable attorney fees if any lawsuit is brought.
So what is a contractor to do? Call early and call often! Calling before you dig is just the start—constant coordination with utility owners is the best insurance a contractor has for avoiding costly damage to underground utilities. Indeed, the new law explicitly allows excavators to receive reasonable compensation from a utility owner for costs incurred by the contractor because of the utility owner’s failure to comply with its duties under the law (though the new law also allows a utility owner to recover its costs from a contractor who fails to comply). There will be more enforcement of the new Call Before You Dig law, and even innocent violations can become costly. So before you break ground, break out your cell phone and call 811. You’ll be happy you did.
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