Utility Protection, Part II
What Are the
Utility Owner’s Duties?
By: Doug Shevelow, P.E.
Reprinted from March 2007 Brickerconstructionlaw.com
Highlights. Second in a series. Two chapters of the Ohio Revised Code control the
protection of underground utilities on a construction project. They lay out the duties of the three parties involved—the project owner,
the utility owner, and the contractor. Drawing upon his background as both a civil engineer and a construction attorney,
Doug Shevelow continues an explanation he started a year ago, when he focused on the project owner’s duties:
Utility Protection:
What Duties Does the Owner Owe the Contractor? - March 2006.
This time he shines the spotlight on another participant: the utility owner. If you are an owner, an owner’s agent, an excavation contractor, or just someone with an interest in how construction projects work, you should find this article informative.
Introduction
If you don’t work for a power company, you may not be well versed in the obligations of a utility
owner when underground construction is planned. Like the duties of a project owner
(which I covered in last year’s special Heavy/Highway issue), these duties come from the Ohio statutes. Before we look at these in detail, it may be helpful to review some key points regarding utility protection in general. [Note: The beginning of this article recaps some of last year’s discussion; if you have a photographic memory of that article, feel free to skip it.]
The Statutory Scheme
Ohio Revised Code §153.64 governs the protection of underground utilities on publicly
funded construction projects. It was passed by the General Assembly in 1982. Ohio
Revised Code §§ 3781.25 through 3781.32, specifically governing the protection of
underground utilities on private projects, were passed by the General Assembly in 1989.
The public works and private works statutes are mostly complementary, but the private works statutes are generally more detailed and comprehensive, showing perhaps the lessons learned in the seven years between the public project and private project legislation. (For example, § 3781 addresses marking tolerances, preservation of markings, remarking requests, etc., while § 153.64 does not.) But the two code sections are not specifically contradictory.
The “2-3-2 Rule”
One helpful way to keep things straight is something I refer to as the “2-3-2 Rule.” There are
two main statutes regarding utility protection: public and private. There are three
main parties to a construction project involving utilities: the project owner, the utility owner, and the contractor.
And there are two phases to a construction project: design and actual construction. The law assigns particular duties and liabilities depending on what party is involved with which phase of the project.
When considering a question of what duty someone owes under the law regarding utility protection on a construction project,
it is helpful to answer a question on each of these factors:
First, ask, “Do the public or private project statutes apply?”
Followed by, “Who am I—the project owner (or owner’s design professional), utility owner, or contractor?”
Followed by, “What stage of the project are we dealing with—design or construction?”
When Must You Follow the Statutes?
The most fundamental question for all this business is when do the utility protection statutes apply? R.C. § 153.64(A) includes a very broad definition of “public improvement,” and requires that its utility protection provisions be followed during the construction of any public improvement “which may involve underground facilities.” R.C. § 3785.25(H) includes a very broad definition for “excavation,” including “the use of tools, powered equipment, or explosives to move earth, rock, or other materials in order to penetrate or bore or drill into the earth, or to demolish any structure whether or not it is intended that the demolition will disturb the earth.” So, odds are that if you think a construction-related activity may be considered an excavation by the statutes, triggering particular duties on your part, then that is probably so—everything from driving survey lath to excavating with a massive hydraulic excavator triggers certain legal duties.
Who is OUPS?
The Ohio Utility Protection Service (OUPS) is not a utility marking service; but it is many other things. OUPS is a clearinghouse of information, a consortium of utility owners organized under R.C. § 153.64(A)(4) as an “underground utility protection service” and registered with the Secretary of State and Public Utilities Commission. OUPS takes requests from contractors and project owners for utility locations and relays those requests to the actual utility owner. It is the utility owner who has the legal duty to provide project owners with utility locations for planning purposes and to mark utility locations on the ground during construction. OUPS also preserves the record of these requests. OUPS is also very active in educating the public and construction industry about underground utility safety.
Utility Owner’s Duties
Design Phase. On public projects, R.C. § 153.64(B) requires the project owner to contact all utility owners affected by the planned construction to determine the location of all underground utilities. Thus, utility owners have an implied duty to cooperate with these efforts and furnish accurate and timely information. But there is no express time limit under which the utility needs to respond.
The requirements on private projects are much the same, with one very important exception. R.C. § 3781.27(A) requires the developer of a private construction project involving excavation to identify the types and “approximate location” of underground utilities “based on the records” of the utility owners. But unlike public projects, in the private project statutes the utility is given a discrete time limit to make its response—ten days—in R.C. § 3781.27(C).
The public and private project statutes also differ on what they require from the utility owner
with respect to assessing the potential impact of the planned construction on buried utilities.
R.C. § 153.64(B) requires the public project owner to determine before construction if any “temporary or
permanent relocation” of underground utilities is necessary. But on private projects, R.C. § 3781.27(D)
assigns that responsibility to the utility owner, and the determination is expanded to include determining whether “support” of the utility is needed during excavation. The statute empowers the utility to delegate “those adjustments” (presumably relocation or support) to the project owner or to self-perform.
So it seems that on a private project the utility owner has more latitude—the utility may be kept within the work limits as long as it is supported. However, the public project statutes seem to contemplate a utility-free site because R.C. § 153.64 does not identify “support” of the utility as an option—just temporary or permanent relocation.
What may explain this difference? It could be that public owners have powerful statutory and common law rights to control the presence of utilities in the public right of way. R.C. § 5515.02 codifies the state’s authority to direct relocation of utilities out of the public right-of-way controlled by the state. Ohio counties have an analogous authority under R.C. § 5547.03. Municipalities typically have power over utilities in the right of way via a broad ordinance or specific franchise agreement.
A public authority’s statutory right to control underground utilities in the public right of way is grounded in basic property rights. The public, through its designated representative (e.g., state, county, or municipal government) has a right to control what occurs in the public right of way and may choose to grant a utility the right to occupy a portion of a right of way in exchange for a promise to provide certain services to the public. It follows then that if the public authority later determines that some greater need requires the pre-existing utility to be adjusted, then the public authority has a right to demand the adjustment.
Construction Phase. This is the stage where physical evidence of a utility owner’s legal duties regarding underground utility protection appears in the form of spray paint marks and flags denoting utility locations adjacent to excavations. On public projects, R.C. § 153.64(C) requires a utility owner to “stake, mark, or otherwise designate location” of its underground utilities within 48 hours (not counting weekends and holidays) of receiving notice of excavation activity from OUPS. The statute also directs the utility owner to indicate “approximate depth” of its utility, an obviously important consideration.
On private projects, the statutes beginning with R.C. § 3781.29 include the same 48-hour requirement for marking utility locations on the ground, but they also include some wiggle room for the utility owner that the public statutes omit. If the utility owner cannot mark the utility accurately, the utility must mark to “the best of its ability, notify the excavator that the markings may not be accurate, and provide additional guidance to the excavator in locating” the utility during excavation.
Another difference between the public and private project statutes is that the public
project statutes require that the location and “approximate depth” be marked in the field. But
the private project statutes refer to marking only “approximate location” of the utility.
Does this mean on a private project a utility owner is excused from marking the depth of the utility?
One Ohio court, when faced with this exact question, answered “no.” In
East Ohio Gas Co. v. Kenmore Construction Co., Inc., (Summit App. 2001), 2001 Ohio App. LEXIS 1444, the court reasoned that without knowing the depth of a utility, a contractor had no way to comply with R.C. § 3781.30, requiring that it “maintain a reasonable clearance” from the utility. The court held that the utility had to indicate depth more precisely than reporting that the utility was located at “the usual depth.” But alas, R.C. § 3781.29(B) states that unless the location of a buried utility is physically confirmed in the field, any indications of depth provided by the utility “shall be treated as estimates.”
There are other differences between the private and public project statutes. The private
project statutes expressly state that a utility’s failure to mark within the 48-hour notice period
equates to an affirmative representation that there are no utilities in the requested area. The private project statutes also include an emergency provision—a utility making an emergency repair to its own underground utility need not first notify OUPS before making an excavation as part of an emergency repair. Notification is to be made after the fact.
In a future article, I will explore the duties owed by the contractor. In the meantime, before you dig, call OUPS: 1-800-362-2764!
Utility Protection, Part I:
What Duties Does the Owner Owe the Contractor?
Utility Protection,
Part III: Utility Protection: What Are the Contractor’s Duties?
