READ FIRST TIME 02/21/05.   

     AN ACT Relating to failure to notify the one-number locator service when excavating near a transmission pipeline; amending RCW 19.122.020, 19.122.027, 19.122.055, and 19.122.070; adding new sections to chapter 19.122 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 19.122.020 and 2000 c 191 s 15 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:
     (1) "Business day" means any day other than Saturday, Sunday, or a legal local, state, or federal holiday.
     (2) "Damage" includes the substantial weakening of structural or lateral support of an underground facility, penetration, impairment, or destruction of any underground protective coating, housing, or other protective device, or the severance, partial or complete, of any underground facility to the extent that the project owner or the affected utility owner determines that repairs are required.
     (3) "Emergency" means any condition constituting a clear and present danger to life or property, or a customer service outage.
     (4) "Excavation" means any operation in which earth, rock, or other material on or below the ground is moved or otherwise displaced by any means, except the tilling of soil less than twelve inches in depth for agricultural purposes, or road and ditch maintenance that does not change the original road grade or ditch flowline.
     (5) "Excavation confirmation code" means a code or ticket issued by the one-number locator service for the site where an excavation is planned. The code must be accompanied by the date and time it was issued.
     (6) "Excavator" means any person who engages directly in excavation.
     (((6))) (7) "Gas" means natural gas, flammable gas, or toxic or corrosive gas.
     (((7))) (8) "Hazardous liquid" means: (a) Petroleum, petroleum products, or anhydrous ammonia as those terms are defined in 49 C.F.R. Part 195 as in effect on March 1, 1998; and (b) carbon dioxide. The utilities and transportation commission may by rule incorporate by reference other substances designated as hazardous by the secretary of transportation.
     (((8))) (9) "Identified facility" means any underground facility which is indicated in the project plans as being located within the area of proposed excavation.
     (((9))) (10) "Identified but unlocatable underground facility" means an underground facility which has been identified but cannot be located with reasonable accuracy.
     (((10))) (11) "Locatable underground facility" means an underground facility which can be field-marked with reasonable accuracy.
     (((11))) (12) "Marking" means the use of stakes, paint, or other clearly identifiable materials to show the field location of underground facilities, in accordance with the current color code standard of the American public works association. Markings shall include identification letters indicating the specific type of the underground facility.
     (((12))) (13) "Notice" or "notify" means contact in person or by telephone or other electronic methods that results in the receipt of a valid excavation confirmation code.
     (14) "One-number locator service" means a service through which a person can notify utilities and request field-marking of underground facilities.
     (15) "Operator" means the individual conducting the excavation.
     (16) "Person" means an individual, partnership, franchise holder, association, corporation, a state, a city, a county, or any subdivision or instrumentality of a state, and its employees, agents, or legal representatives.
     (((13))) (17) "Pipeline" or "pipeline system" means all or parts of a pipeline facility through which hazardous liquid or gas moves in transportation, including, but not limited to, line pipe, valves, and other appurtenances connected to line pipe, pumping units, fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks. "Pipeline" or "pipeline system" does not include process or transfer pipelines as defined in RCW 81.88.010.
     (((14))) (18) "Pipeline company" means a person or entity constructing, owning, or operating a pipeline for transporting hazardous liquid or gas. A pipeline company does not include: (a) Distribution systems owned and operated under franchise for the sale, delivery, or distribution of natural gas at retail; or (b) excavation contractors or other contractors that contract with a pipeline company.
     (((15))) (19) "Reasonable accuracy" means location within twenty-four inches of the outside dimensions of both sides of an underground facility.
     (((16))) (20) "Transmission pipeline" means a pipeline that transports hazardous liquid or gas within a storage field, or transports hazardous liquid or gas from an interstate pipeline or storage facility to a distribution main or a large volume hazardous liquid or gas user, or operates at a hoop stress of twenty percent or more of the specified minimum yield strength.
     (21) "Underground facility" means any item buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic or telegraphic communications, cablevision, electric energy, petroleum products, gas, gaseous vapors, hazardous liquids, or other substances and including but not limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments, and those parts of poles or anchors below ground. This definition does not include pipelines as defined in subsection (((13))) (17) of this section, but does include distribution systems owned and operated under franchise for the sale, delivery, or distribution of natural gas at retail.
     (((17) "One-number locator service" means a service through which a person can notify utilities and request field-marking of underground facilities.))

Sec. 2   RCW 19.122.027 and 2000 c 191 s 16 are each amended to read as follows:
     (1) ((By December 31, 2000,)) The utilities and transportation commission shall cause to be established a single statewide toll-free telephone number to be used for referring excavators to the appropriate one-number locator service.
     (2) The utilities and transportation commission, in consultation with the Washington utilities coordinating council, shall establish minimum standards and best management practices for one-number locator services ((consistent with the recommendations of the governor's fuel accident prevention and response team issued in December 1999. By December 31, 2000, the commission shall provide its recommendations to the appropriate standing committees of the house of representatives and the senate)).
     (3) One-number locator services shall be operated by nongovernmental agencies.

Sec. 3   RCW 19.122.055 and 2001 c 238 s 5 are each amended to read as follows:
     (1)(a) Any ((person)) excavator who fails to notify the one-number locator service and causes damage to a hazardous liquid or gas pipeline is subject to a civil penalty of not more than ten thousand dollars for each violation.
     (b) The civil penalty in this subsection may also be imposed on any excavator who violates section 5 of this act.
     (2) All civil penalties recovered under this section shall be deposited into the pipeline safety account created in RCW 81.88.050.

Sec. 4   RCW 19.122.070 and 1984 c 144 s 7 are each amended to read as follows:
     (1) Any person who violates any provision of this chapter not amounting to a violation of RCW 19.122.055, and which violation results in damage to underground facilities, is subject to a civil penalty of not more than one thousand dollars for each violation. All penalties recovered in such actions shall be deposited in the general fund.
     (2) Any excavator who willfully or maliciously damages a field-marked underground facility shall be liable for treble the costs incurred in repairing or relocating the facility. In those cases in which an excavator fails to notify known underground facility owners or the one-number locator service, any damage to the underground facility shall be deemed willful and malicious and shall be subject to treble damages for costs incurred in repairing or relocating the facility.
     (3) This chapter does not affect any civil remedies for personal injury or for property damage, including that to underground facilities, nor does this chapter create any new civil remedies for such damage.

NEW SECTION.  Sec. 5   A new section is added to chapter 19.122 RCW to read as follows:
     Any excavator who excavates, without a valid excavation confirmation code when required under this chapter, within thirty-five feet of a transmission pipeline is guilty of a misdemeanor.

NEW SECTION.  Sec. 6   A new section is added to chapter 19.122 RCW to read as follows:
     If charged with a violation of section 5 of this act, an operator will be deemed to have established an affirmative defense to such charges if:
     (1) The operator was provided a valid excavation confirmation code;
     (2) The excavation was performed in an emergency situation;
     (3) The operator was provided a false confirmation code by an identifiable third party; or
     (4) Notice of the excavation was not required under this chapter.

NEW SECTION.  Sec. 7   A new section is added to chapter 19.122 RCW to read as follows:
     Any person who intentionally provides an operator with a false excavation confirmation code is guilty of a misdemeanor.

NEW SECTION.  Sec. 8   A new section is added to chapter 19.122 RCW to read as follows:
     Upon receipt, during normal business hours, of notice of an intended excavation, the one-number locator service shall provide an excavation confirmation code.