- Update to Ohio's Call Before You Dig Law: Has Anything Changed?
- August 19, 2014 | Author: Amanda R. Yurechko
- Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cleveland Office
The changes to Ohio's Call Before You Dig Law, enacted by 2012 Senate Bill 458, became effective March 27, 2013. Have you noticed any changes?
Incidents that may have occurred under the new law have likely not yet made their way through the court system. No reported decisions under the new versions of O.R.C. 3781.25 et seq. and O.R.C. 153.64 have appeared. However, you need to be sure your utility has taken the steps necessary to comply with and plan for the changes that were enacted.
Use of the Positive Response System
In the prior version of the statute, a utility that has been notified of a proposed excavation through the one call system is required to locate its facilities within 48 hours. The new version of O.R.C. 3781.29 (A) also requires the utility to report through the positive response system. It is important to communicate this change to the company who performs your locate. You may need to change the terms of the contract with the locator to require that they make this positive notification on your behalf when they complete the requested locate, if you expect the locator to make this notification.
The language of the statute is conjunctive, which means it requires the utility to locate its underground facilities and provide this positive response in order to have fulfilled its duty under the statute. It has yet to be seen what effect this new language will have on the utility's ability to collect on its damage claims. In a situation where the underground facility has been accurately located but no positive response was made, a court may refuse to award damages to a utility, especially where an excavator can show that it relied on the lack of a response to mean that there were no utility lines in conflict with its proposed excavation.
Coordination of Large Projects
In order to relieve much of the confusion and conflicting case law surrounding remarkings on an on-going project, the new statute replaces the traditional requirements of O.R.C. 3781.28(A)(1) 1 for an excavation that "will cover a large area and will progress from one area to the next over a period of time." 2
What constitutes a large area or the required period of time is not defined in the statute. However, O.R.C. 3781.28(E) requires that in such an excavation project, "the excavator shall provide written notice of excavation with projected timelines for segments of the excavation as the excavation progresses in order to coordinate the marking of underground utility facilities with actual excavation schedules." The utility and excavator then have to establish a mutually agreeable time schedule for marking. The statute does make clear that if no mutually agreeable schedule is entered, section (A) still applies.
Foreseeable problems with this language include how the mutually agreeable schedule is documented. The utility should strive to get the schedule in writing every time, before relieving the excavator of the requirements of section (A). Further, how and when the first notice of this large excavation project is provided by the excavator is not defined by the statute. Practically, you may find that this notice is given to your locator when they arrive to perform the first locate. Hopefully you have established a protocol with your locator on how to handle such notice. Things to consider in this case are whether the utility itself wants to be notified by the locator and be the one to establish the schedule, or whether the utility trusts its locator to get the agreement in writing and stick to it. Also, consider what will happen when the schedule breaks down and the locator is behind or the excavator is ahead of the proposed schedule. The statute does not provide a remedy in such a situation.
Mark the Course of the Line
The prior version of O.R.C. 3781.29 required the utility to mark the "approximate location" of the underground facility. This language has been changed to require the utility to "locate and mark its underground utility facilities at the excavation site in such a manner as to indicate their course..." The definition of "course" is not included in the definitions found at O.R.C. 3781.25. While the definition of the tolerance zone still appears in that section, the phrase "tolerance zone" does not appear in O.R.C. 3781.29. The tolerance zone of 18 inches, in addition to the width of the facility, is industry standard, and the utility can continue to rely on that standard. However, it has yet to be seen how courts will define "course" and what will be required to accurately mark a facility's course.
The changes enacted in 2013 to the Call Before You Dig law were meant to clarify issues that had arisen in litigation under the old law, and to promote greater cooperation in the field. However, the changes will be interpreted by the court system in litigation to collect damage claims, and may produce results that were not anticipated. Be sure your utility has considered the practical impact of the changes to this statute on your procedures, and your relationship with your locate company.
1 O.R.C. 3781.28 (A) states "Except as otherwise provided in divisions (C), (D), (E), and (F) of this section, at least forty-eight hours but not more than ten working days before commencing excavation, the excavator shall notify a protection service of the location of the excavation site and the date on which excavation is planned to commence."
2 O.R.C. 3781.28 (E).