READ FIRST TIME 02/24/11.   

     AN ACT Relating to underground utilities; amending RCW 19.122.010, 19.122.020, 19.122.027, 19.122.030, 19.122.033, 19.122.035, 19.122.040, 19.122.050, 19.122.055, 19.122.070, 19.122.075, 19.122.080, 19.122.100, and 19.122.110; adding new sections to chapter 19.122 RCW; creating a new section; repealing RCW 19.122.060; prescribing penalties; providing an effective date; and providing expiration dates.

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

Sec. 1   RCW 19.122.010 and 1984 c 144 s 1 are each amended to read as follows:
     ((It is the intent of the legislature in enacting this chapter to assign responsibilities for locating and keeping accurate records of utility locations, protecting and repairing damage to existing underground facilities, and protecting the public health and safety from interruption in utility services caused by damage to existing underground utility facilities.)) In this chapter, the underground utility damage prevention act, the legislature intends to protect public health and safety and prevent disruption of vital utility services through a comprehensive damage prevention program that includes:
     (1) Assigning responsibility for providing notice of proposed excavation, locating and marking underground utilities, and reporting and repairing damage;
     (2) Setting safeguards for construction and excavation near hazardous liquid and gas pipelines;
     (3) Improving worker and public knowledge of safe practices;
     (4) Collecting and analyzing damage data;
     (5) Reviewing alleged violations; and
     (6) Enforcing this chapter.

Sec. 2   RCW 19.122.020 and 2007 c 142 s 9 are each amended to read as follows:
     ((Unless the context clearly requires otherwise,)) The definitions in this section apply throughout this chapter((:)) unless the context clearly requires otherwise.
     (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)) facility operator 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" and "excavate" means any operation, including the installation of signs, 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)) a 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.
     (7) "Gas" means natural gas, flammable gas, or toxic or corrosive gas.
     (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)); and
     (c) Other substances designated as hazardous by the secretary of transportation and incorporated by reference by the commission by rule.
     (9) (("Identified facility" means any underground facility which is indicated in the project plans as being located within the area of proposed excavation.
     (10))) "Identified but unlocatable underground facility" means an underground facility which has been identified but cannot be located with reasonable accuracy.
     (((11))) (10) "Locatable underground facility" means an underground facility which can be ((field-marked)) marked with reasonable accuracy.
     (((12))) (11) "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.
     (((13))) (12) "Notice" or "notify" means contact in person or by telephone or other electronic method((s that)), and, with respect to contact of a one-number locator service, also results in the receipt of a valid excavation confirmation code.
     (((14))) (13) "One-number locator service" means a service through which a person can notify ((utilities)) facility operators and request ((field-marking)) marking of underground facilities.
     (((15) "Operator" means the individual conducting the excavation.
     (16))) (14) "Person" means an individual, partnership, franchise holder, association, corporation, ((a)) the state, a city, a county, a town, or any subdivision or instrumentality of ((a)) the state, including any unit of local government, and its employees, agents, or legal representatives.
     (((17))) (15) "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 or compressor units, metering and delivery stations and fabricated assemblies therein, and breakout tanks. "Pipeline" or "pipeline system" does not include process or transfer pipelines.
     (((18))) (16) "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.
     (((19))) (17) "Reasonable accuracy" means location within twenty-four inches of the outside dimensions of both sides of an underground facility.
     (((20))) (18) "Transfer pipeline" means a buried or aboveground pipeline used to carry hazardous liquid between a tank vessel or transmission pipeline and the first valve inside secondary containment at ((the)) a facility, provided that any discharge on the facility side of ((that)) the first valve will not directly impact waters of the state. ((A)) "Transfer pipeline" includes valves((,)) and other appurtenances connected to the pipeline, pumping units, and fabricated assemblies associated with pumping units. ((A)) "Transfer pipeline" does not include process pipelines, pipelines carrying ballast or bilge water, transmission pipelines, or tank vessel or storage tanks.
     (((21))) (19) "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.
     (((22))) (20) "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 that are below ground. This definition does not include pipelines as defined in subsection (((17))) (15) of this section, but does include distribution systems owned and operated under franchise for the sale, delivery, or distribution of natural gas at retail.
     (21) "Bar hole" means a hole made in the soil or pavement with a hand-operated bar for the specific purpose of testing the subsurface atmosphere with a combustible gas indicator.
     (22) "Commission" means the utilities and transportation commission.
     (23) "End user" means any utility customer or consumer of utility services or commodities provided by a facility operator.
     (24) "Equipment operator" means an individual conducting an excavation.
     (25) "Facility operator" means any person who owns an underground facility or is in the business of supplying any utility service or commodity for compensation. "Facility operator" does not include a utility customer who owns a service lateral that terminates at a facility operator's main utility line.
     (26) "Large project" means a project that exceeds seven hundred linear feet.
     (27) "Service lateral" means an underground water, storm water, or sewer facility located in a public right-of-way or utility easement that connects an end user's building or property to a facility operator's underground facility, and terminates beyond the public right-of-way or utility easement.
     (28) "Unlocatable underground facility" means, subject to the provisions of RCW 19.122.030, an underground facility that cannot be marked with reasonable accuracy using available information to designate the location of an underground facility. "Unlocatable underground facility" includes, but is not limited to, service laterals, storm drains, and nonconductive and nonmetallic underground facilities that do not contain trace wires.
     (29) "Utility easement" means a right held by a facility operator to install, maintain, and access an underground facility or pipeline.

Sec. 3   RCW 19.122.027 and 2005 c 448 s 2 are each amended to read as follows:
     (1) The ((utilities and transportation commission shall cause to be established)) commission must establish 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)) must establish minimum standards and best management practices for one-number locator services.
     (3) One-number locator services ((shall)) must be operated by nongovernmental agencies.
     (4) All facility operators within a one-number locator service area must subscribe to the service.
     (5) Failure to subscribe to a one-number locator service constitutes willful intent to avoid compliance with this chapter.

Sec. 4   RCW 19.122.030 and 2000 c 191 s 17 are each amended to read as follows:
     (1)(a) Unless exempted under section 5 of this act, before commencing any excavation, ((excluding agriculture tilling less than twelve inches in depth, the excavator shall)) an excavator must mark the boundary of the excavation area with white paint applied on the ground of the worksite, then provide notice of the scheduled commencement of excavation to all ((owners of underground facilities)) facility operators through a one-number locator service.
     (b) If boundary marking required by (a) of this subsection is infeasible, an excavator must communicate directly with affected facility operators to ensure that the boundary of the excavation area is accurately identified.
     (2) ((All owners of underground facilities within a one-number locator service area shall subscribe to the service. One-number locator service rates for cable television companies will be based on the amount of their underground facilities. If no one-number locator service is available, notice shall be provided individually to those owners of underground facilities known to or suspected of having underground facilities within the area of proposed excavation. The notice shall be communicated to the owners of underground facilities)) An excavator must provide the notice required by subsection (1) of this section to a one-number locator service not less than two business days ((or)) and not more than ten business days before the scheduled date for commencement of excavation, unless otherwise agreed ((by the parties)) by the excavator and facility operators. If an excavator intends to work at multiple sites or at a large project, the excavator must take reasonable steps to confer with facility operators to enable them to locate underground facilities reasonably in advance of the start of excavation for each phase of the work.
     (3) Upon receipt of the notice provided for in ((this section, the owner of the underground facility shall)) subsection (1) of this section, a facility operator must, with respect to:
     (a) The facility operator's locatable underground facilities, provide the excavator with reasonably accurate information ((as to its locatable underground facilities by surface-marking the location of the facilities. If there are)) by marking their location;
     (b) The facility operator's unlocatable or identified but unlocatable underground facilities, ((the owner of such facilities shall)) provide the excavator with ((the best)) available information as to their ((locations. The owner of the underground facility providing the information shall respond)) location; and
     (c) Service laterals, designate their presence or location, if the service laterals:
     (i) Connect end users to the facility operator's main utility line; and
     (ii) Are within a public right-of-way or utility easement and the boundary of the excavation area identified under subsection (1) of this section.
     (4)(a) A facility operator must provide information to an excavator pursuant to subsection (3) of this section no later than two business days after the receipt of the notice ((or before the excavation time)) provided for in subsection (1) of this section or before excavation commences, at the option of the ((owner)) facility operator, unless otherwise agreed by the parties. ((Excavators shall not excavate until all known facilities have been marked. Once marked by the owner of the underground facility, the excavator is responsible for maintaining the markings. Excavators shall have the right to receive compensation from the owner of the underground facility for costs incurred if the owner of the underground facility does not locate its facilities in accordance with this section.
     (4) The owner of the underground facility shall have))
     (b) A facility operator complying with subsection (3)(b) and (c) of this section may do so in a manner that includes any of the following methods:
     (i) Placing within a proposed excavation area a triangular mark at the main utility line pointing at the building, structure, or property in question, indicating the presence of an unlocatable or identified but unlocatable underground facility, including a service lateral;
     (ii) Arranging to meet an excavator at a worksite to provide available information about the location of service laterals; or
     (iii) Providing copies of the best reasonably available records by electronic message, mail, facsimile, or other delivery method.
     (c) A facility operator's good faith attempt to comply with subsection (3)(b) and (c) of this section:
     (i) Constitutes full compliance with the requirements of this section, and no person may be found liable for damages or injuries that may result from such compliance, apart from liability for arranging for repairs or relocation as provided in RCW 19.122.050(2); and
     (ii) Does not constitute any assertion of ownership or operation of a service lateral by the facility operator.
     (d) An end user is responsible for determining the location of a service lateral on their property or a service lateral that they own. Nothing in this section may be interpreted to require an end user to subscribe to a one-number locator service or to locate a service lateral within a right-of-way or utility easement.
     (5) An excavator must not excavate until all known facility operators have marked or provided information regarding underground facilities as provided in this section.
     (6)(a) Once marked by a facility operator, an excavator is responsible for maintaining the accuracy of the facility operator's markings of underground facilities for the lesser of:
     (i) Forty-five calendar days from the date that the excavator provided notice to a one-number locator service pursuant to subsection (1) of this section; or
     (ii) The duration of the project.
     (b) An excavator that makes repeated requests for location of underground facilities due to its failure to maintain the accuracy of a facility operator's markings as required by this subsection (6) may be charged by the facility operator for services provided.
     (c) A facility operator's markings of underground utilities expire forty-five calendar days from the date that the excavator provided notice to a one-number locator service pursuant to subsection (1) of this section. For excavation occurring after that date, an excavator must provide additional notice to a one-number locator service pursuant to subsection (1) of this section.
     (7) An excavator has the right to receive reasonable compensation from a facility operator for costs incurred by the excavator if the facility operator does not locate its underground facilities in accordance with the requirements specified in this section.
     (8) A facility operator has the right to receive ((compensation for costs incurred in responding to excavation notices given less than two business days prior to the excavation from the excavator)) reasonable compensation from an excavator for costs incurred by the facility operator if the excavator does not comply with the requirements specified in this section.
     (((5) An owner of underground facilities is not required to indicate the presence of existing service laterals or appurtenances if the presence of existing service laterals or appurtenances on the site of the construction project can be determined from the presence of other visible facilities, such as buildings, manholes, or meter and junction boxes on or adjacent to the construction site.
     (6) Emergency excavations are exempt from the time requirements for notification provided in this section.
     (7) If the excavator, while performing the contract,)) (9) A facility operator is not required to comply with subsection (4) of this section with respect to service laterals conveying only water if their presence can be determined from other visible water facilities, such as water meters, water valve covers, and junction boxes in or adjacent to the boundary of an excavation area identified under subsection (1) of this section.
     (10) If an excavator discovers underground facilities ((which)) that are not identified, the excavator ((shall)) must cease excavating in the vicinity of the ((facility)) underground facilities and immediately notify the ((owner or)) facility operator ((of such facilities,)) or ((the)) a one-number locator service. If an excavator discovers identified but unlocatable underground facilities, the excavator must notify the facility operator. Upon notification by a one-number locator service or an excavator, a facility operator must allow for location of the uncovered portion of an underground facility identified by the excavator, and may accept location information from the excavator for marking of the underground facility.

NEW SECTION.  Sec. 5   A new section is added to chapter 19.122 RCW to read as follows:
     (1) The requirements specified in RCW 19.122.030 do not apply to any of the following activities:
     (a) An emergency excavation, but only with respect to boundary marking and notice requirements specified in RCW 19.122.030 (1) and (2), and provided that the excavator provides notice to a one-number locator service at the earliest practicable opportunity;
     (b) An excavation of less than twelve inches in depth on private noncommercial property, if the excavation is performed by the person or an employee of the person who owns or occupies the property on which the excavation is being performed;
     (c) The tilling of soil for agricultural purposes less than:
     (i) Twelve inches in depth within a utility easement; and
     (ii) Twenty inches in depth outside of a utility easement;
     (d) The replacement of an official traffic sign installed prior to January 1, 2013, no deeper than the depth at which it was installed;
     (e) Road maintenance activities involving excavation less than six inches in depth below the original road grade and ditch maintenance activities involving excavation less than six inches in depth below the original ditch flowline, or alteration of the original ditch horizontal alignment;
     (f) The creation of bar holes less than twelve inches in depth, or of any depth during emergency leak investigations, provided that the excavator takes reasonable measures to eliminate electrical arc hazards; or
     (g) Construction, operation, or maintenance activities by an irrigation district on rights-of-way, easements, or facilities owned by the federal bureau of reclamation in federal reclamation projects.
     (2) Any activity described in subsection (1) of this section is subject to the requirements specified in RCW 19.122.050.

Sec. 6   RCW 19.122.033 and 2000 c 191 s 18 are each amended to read as follows:
     (1) Before commencing any excavation, ((excluding agricultural tilling less than twelve inches in depth,)) an excavator ((shall)) must notify pipeline companies of the scheduled commencement of excavation through a one-number locator service in the same manner as ((is)) required for notifying ((owners of underground facilities)) facility operators of excavation ((work)) under RCW 19.122.030. Pipeline companies ((shall)) have the same rights and responsibilities as ((owners of underground facilities)) facility operators under RCW 19.122.030 regarding excavation ((work)). Excavators have the same rights and responsibilities under this section as they have under RCW 19.122.030.
     (2) Project owners, excavators, and pipeline companies have the same rights and responsibilities relating to excavation near pipelines that they have for excavation near underground facilities as provided in RCW 19.122.040.
     (3) The state, and any subdivision or instrumentality of the state, including any unit of local government, must, when planning construction or excavation within one hundred feet, or greater distance if required by local ordinance, of a right-of-way or utility easement containing a transmission pipeline, notify the pipeline company of the scheduled commencement of work.
     (4) Any unit of local government that issues permits under codes adopted pursuant to chapter 19.27 RCW must, when permitting construction or excavation within one hundred feet, or greater distance if required by local ordinance, of a right-of-way or utility easement containing a transmission pipeline:
     (a) Notify the pipeline company of the permitted activity when it issues the permit; or
     (b) Require, as a condition of issuing the permit, that the applicant consult with the pipeline company.
     (5) The commission must assist local governments in obtaining hazardous liquid and gas pipeline location information and maps, as provided in RCW 81.88.080.

Sec. 7   RCW 19.122.035 and 2000 c 191 s 19 are each amended to read as follows:
     (1) After a pipeline company has been notified by an excavator pursuant to RCW 19.122.033 that excavation ((work)) will uncover any portion of the pipeline company's pipeline, the pipeline company shall ensure that the pipeline section in the vicinity of the excavation is examined for damage prior to being reburied.
     (2) Immediately upon receiving information of third-party damage to a hazardous liquid pipeline, the company that operates the pipeline shall terminate the flow of hazardous liquid in that pipeline until it has visually inspected the pipeline. After visual inspection, the ((operator of the hazardous liquid)) pipeline company shall determine whether the damaged pipeline section should be replaced or repaired, or whether it is safe to resume pipeline operation. Immediately upon receiving information of third-party damage to a gas pipeline, the ((company that operates the)) pipeline company shall conduct a visual inspection of the pipeline to determine whether the flow of gas through that pipeline should be terminated, and whether the damaged pipeline should be replaced or repaired. A record of the pipeline company's inspection report and test results shall be provided to the ((utilities and transportation)) commission, consistent with reporting requirements under 49 C.F.R. Parts 191 and 195, Subpart B.
     (3) Pipeline companies shall immediately notify local first responders and the department of ecology of any reportable release of a hazardous liquid from a pipeline. Pipeline companies shall immediately notify local first responders and the commission of any blowing gas leak from a gas pipeline that has ignited or represents a probable hazard to persons or property. Pipeline companies shall take all appropriate steps to ensure the public safety in the event of a release of hazardous liquid or gas under this subsection.
     (4) No damaged pipeline may be buried until it is repaired or relocated. The pipeline company shall arrange for repairs or relocation of a damaged pipeline as soon as is practical or may permit the excavator to do necessary repairs or relocation at a mutually acceptable price.

Sec. 8   RCW 19.122.040 and 1984 c 144 s 4 are each amended to read as follows:
     (1) Project owners shall indicate in bid or contract documents the existence of underground facilities known by the project owner to be located within the proposed area of excavation. The following ((shall be)) are deemed to be changed or differing site conditions:
     (a) An underground facility not identified as required by this chapter or other provision of law; ((and)) or
     (b) An underground facility not located, as required by this chapter or other provision of law, by the project owner, facility operator, or excavator if the project owner or excavator is also a ((utility)) facility operator.
     (2) An excavator shall use reasonable care to avoid damaging underground facilities. An excavator ((shall)) must:
     (a) Determine the precise location of underground facilities which have been marked;
     (b) Plan the excavation to avoid damage to or minimize interference with underground facilities in and near the excavation area; and
     (c) Provide such support for underground facilities in and near the construction area, including during backfill operations, as may be reasonably necessary for the protection of such facilities.
     (3) If an underground facility is damaged and such damage is the consequence of the failure to fulfill an obligation under this chapter, the party failing to perform that obligation ((shall be)) is liable for any damages. Any clause in an excavation contract which attempts to allocate liability, or requires indemnification to shift the economic consequences of liability, ((different)) that differs from the provisions of this chapter is against public policy and unenforceable. Nothing in this chapter prevents the parties to an excavation contract from contracting with respect to the allocation of risk for changed or differing site conditions.
     (4) In any action brought under this section, the prevailing party is entitled to reasonable attorneys' fees.

Sec. 9   RCW 19.122.050 and 1984 c 144 s 5 are each amended to read as follows:
     (1) An excavator who, in the course of excavation, contacts or damages an underground facility shall notify the ((utility owning or operating such)) facility operator and ((the)) a one-number locator service, and report the damage as required under section 20 of this act. If the damage causes an emergency condition, the excavator causing the damage shall also alert the appropriate local public safety agencies and take all appropriate steps to ensure the public safety. No damaged underground facility may be buried until it is repaired or relocated.
     (2) ((The owner of the underground facilities damaged)) A facility operator notified in accordance with subsection (1) of this section shall arrange for repairs or relocation as soon as is practical, or ((may)) permit the excavator to do necessary repairs or relocation at a mutually acceptable price.

Sec. 10   RCW 19.122.055 and 2005 c 448 s 3 are each amended to read as follows:
     (1)(a) Any excavator who fails to notify ((the)) a one-number locator service and causes damage to a hazardous liquid or gas ((pipeline)) underground facility 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 RCW 19.122.090.
     (2) All civil penalties recovered under this section ((shall)) must be deposited into the ((pipeline safety)) damage prevention account created in ((RCW 81.88.050)) section 12 of this act.

Sec. 11   RCW 19.122.070 and 2005 c 448 s 4 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)) an initial violation, and not more than five thousand dollars for each subsequent violation within a three-year period. All penalties recovered in such actions must be deposited in the damage prevention account created in section 12 of this act.
     (2) Any excavator who willfully or maliciously damages a ((field-marked)) marked underground facility ((shall be)) is 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)) operators or ((the)) a one-number locator service, any damage to the underground facility ((shall be)) is deemed willful and malicious and ((shall be)) is 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. 12   A new section is added to chapter 19.122 RCW to read as follows:
     The damage prevention account is created in the custody of the state treasurer. All receipts from moneys directed by law or the commission to be deposited to the account must be deposited in the account. Expenditures from the account may be used only for purposes designated in section 13 of this act. Only the commission or the commission's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW.

NEW SECTION.  Sec. 13   A new section is added to chapter 19.122 RCW to read as follows:
     The commission may use money deposited in the damage prevention account created in section 12 of this act to:
     (1) Develop and disseminate educational programming designed to improve worker and public safety relating to excavation and underground facilities; and
     (2) Provide grants to persons who have developed educational programming that the commission and the safety committee created pursuant to section 18 of this act deem appropriate for improving worker and public safety relating to excavation and underground facilities.

Sec. 14   RCW 19.122.075 and 2000 c 191 s 23 are each amended to read as follows:
     Any person who willfully damages or removes a permanent marking used to identify an underground facility or pipeline, or a temporary marking prior to its intended use, is subject to a civil penalty of not more than one thousand dollars for ((each act)) an initial violation, and not more than five thousand dollars for each subsequent violation within a three-year period.

Sec. 15   RCW 19.122.080 and 1984 c 144 s 8 are each amended to read as follows:
     The notification and marking provisions of this chapter may be waived for one or more designated persons by ((an underground)) a facility ((owner)) operator with respect to all or part of that ((underground)) facility ((owner's own)) operator's underground facilities.

Sec. 16   RCW 19.122.100 and 2005 c 448 s 6 are each amended to read as follows:
     If charged with a violation of RCW 19.122.090, an equipment operator ((will be)) is deemed to have established an affirmative defense to such charges if:
     (1) The equipment operator was provided a valid excavation confirmation code;
     (2) The excavation was performed in an emergency situation;
     (3) The equipment operator was provided a false confirmation code by an identifiable third party; or
     (4) Notice of the excavation was not required under this chapter.

Sec. 17   RCW 19.122.110 and 2005 c 448 s 7 are each amended to read as follows:
     Any person who intentionally provides an equipment operator with a false excavation confirmation code is guilty of a misdemeanor.

NEW SECTION.  Sec. 18   A new section is added to chapter 19.122 RCW to read as follows:
     (1) The commission must contract with a statewide, nonprofit entity whose purpose is to reduce damages to underground and above ground facilities, promote safe excavation practices, and review complaints of alleged violations of this chapter. The contract must not obligate funding by the commission for activities performed by the nonprofit entity or the safety committee under this section, and is therefore exempt under RCW 39.29.040(1) from the requirements of chapter 39.29 RCW.
     (2) The contracting entity must create a safety committee to:
     (a) Advise the commission and other state agencies, the legislature, and local governments on best practices and training to prevent damage to underground utilities, and policies to enhance worker and public safety; and
     (b) Review complaints alleging violations of this chapter involving practices related to underground facilities.
     (3) The safety committee will consist of thirteen members, who must be nominated by represented groups and appointed by the contracting entity to staggered three-year terms. The safety committee must include representatives of:
     (a) Local governments;
     (b) A natural gas utility subject to regulation under Titles 80 and 81 RCW;
     (c) Contractors;
     (d) Excavators;
     (e) An electric utility subject to regulation under Title 80 RCW;
     (f) A consumer-owned utility, as defined in RCW 19.27A.140;
     (g) A pipeline company;
     (h) The insurance industry;
     (i) The commission; and
     (j) A telecommunications company.
     (4) The safety committee must meet at least once every three months.
     (5) The safety committee may review complaints of alleged violations of this chapter involving practices related to underground facilities. Any person may bring a complaint to the safety committee regarding an alleged violation.
     (6) To review complaints of alleged violations, the safety committee must appoint at least three and not more than five members as a review committee. The review committee must include the same number of members representing excavators and facility operators. One member representing facility operators must also be a representative of a pipeline company or a natural gas utility subject to regulation under Titles 80 and 81 RCW. The review committee must also include a member representing the insurance industry.
     (7) Before reviewing a complaint alleging a violation of this chapter, the review committee must notify the person making the complaint and the alleged violator of its review and of the opportunity to participate.
     (8) The safety committee may provide written notification to the commission, with supporting documentation, that a person has likely committed a violation of this chapter, and recommend remedial action that may include a penalty amount, training, or education to improve public safety, or some combination thereof.
     (9) This section expires December 31, 2020.

NEW SECTION.  Sec. 19   A new section is added to chapter 19.122 RCW to read as follows:
     (1) The commission may enforce the civil penalties authorized in RCW 19.122.070 or 19.122.075 when it receives written notification from the safety committee created under section 18 of this act indicating that a violation of this chapter has likely been committed by a person subject to regulation by the commission, or involving the underground facilities of such a person.
     (2) If the commission receives written notification from the safety committee pursuant to section 18 of this act that a violation of this chapter has likely been committed by a person who is not subject to regulation by the commission, and in which the underground facility involved is also not subject to regulation by the commission, the commission may refer the matter to the attorney general for enforcement of a civil penalty under RCW 19.122.070 or 19.122.075. The commission must provide funding for such enforcement. However, any costs and fees recovered by the attorney general pursuant to subsection (3) of this section must be deposited by the commission in the fund that paid for such enforcement.
     (3) In a matter referred to it by the commission pursuant to subsection (2) of this section, the attorney general may bring an action to enforce the penalties authorized in RCW 19.122.070 or 19.122.075. In such an action, the court may award the state all costs of investigation and trial, including a reasonable attorneys' fee fixed by the court.
     (4) This section expires December 31, 2020.

NEW SECTION.  Sec.20   A new section is added to chapter 19.122 RCW to read as follows:
     (1) Facility operators and excavators who observe or cause damage to an underground facility must report the damage event to the commission.
     (2) A nonpipeline facility operator conducting an excavation, or a subcontractor conducting an excavation on the facility operator's behalf, that strikes the facility operator's own underground facility is not required to report that damage event to the commission.
     (3) Reports must be made to the commission's office of pipeline safety within forty-five days of the damage event, or sooner if required by law, using the commission's virtual private damage information reporting tool (DIRT) report form, or other similar form if it reports:
     (a) The name of the person submitting the report and whether the person is an excavator, a representative of a one-number locator service, or a facility operator;
     (b) The date and time of the damage event;
     (c) The address where the damage event occurred;
     (d) The type of right-of-way, where the damage event occurred, including but not limited to city street, state highway, or utility easement;
     (e) The type of underground facility damaged, including but not limited to pipes, transmission pipelines, distribution lines, sewers, conduits, cables, valves, lines, wires, manholes, attachments, or parts of poles or anchors below ground;
     (f) The type of utility service or commodity the underground facility stores or conveys, including but not limited to electronic, telephonic or telegraphic communications, water, sewage, cablevision, electric energy, petroleum products, gas, gaseous vapors, hazardous liquids, or other substances;
     (g) The type of excavator involved, including but not limited to contractors or facility operators;
     (h) The excavation equipment used, including but not limited to augers, bulldozers, backhoes, or hand tools;
     (i) The type of excavation being performed, including but not limited to drainage, grading, or landscaping;
     (j) Whether a one-number locator service was notified before excavation commenced, and, if so, the excavation confirmation code provided by a one-number locator service;
     (k) If applicable:
     (i) The person who located the underground facility, and their employer;
     (ii) Whether underground facility marks were visible in the proposed excavation area before excavation commenced;
     (iii) Whether underground facilities were marked correctly;
     (l) Whether an excavator experienced interruption of work as a result of the damage event;
     (m) A description of the damage; and
     (n) Whether the damage caused an interruption of underground facility service.
     (4) The commission must use reported data to evaluate the effectiveness of the damage prevention program.

NEW SECTION.  Sec. 21   A new section is added to chapter 19.122 RCW to read as follows:
     (1) The commission may investigate and enforce violations of RCW 19.122.055, 19.122.075, and 19.122.090 relating to pipeline facilities without initial referral to the safety committee created under section 18 of this act.
     (2) If the commission's investigation of notifications received pursuant to section 19 of this act or subsection (1) of this section substantiates violations of this chapter, the commission may impose penalties authorized by RCW 19.122.055, 19.122.070, 19.122.075, and 19.122.090, and require training, education, or any combination thereof.
     (3) With respect to referrals from the safety committee, the commission must consider any recommendation by the committee regarding enforcement and remedial actions involving an alleged violator.
     (4) In an action to impose a penalty initiated by the commission under subsection (1) or (2) of this section, the penalty is due and payable when the person incurring the penalty receives a notice of penalty in writing from the commission describing the violation and advising the person that the penalty is due. The person incurring the penalty has fifteen days from the date the person receives the notice of penalty to file with the commission a request for mitigation or a request for a hearing. The commission must include this time limit information in the notice of penalty. After receiving a timely request for mitigation or hearing, the commission must suspend collection of the penalty until it issues a final order concerning the penalty or mitigation of that penalty. A person aggrieved by the commission's final order may seek judicial review, subject to provisions of the administrative procedure act, chapter 34.05 RCW.
     (5) If a penalty imposed by the commission is not paid, the attorney general may, on the commission's behalf, file a civil action in superior court to collect the penalty.
     (6) This section expires December 31, 2020.

NEW SECTION.  Sec. 22   A new section is added to chapter 19.122 RCW to read as follows:
     All penalties collected pursuant to section 21 of this act must be deposited in the damage prevention account created in section 12 of this act.

NEW SECTION.  Sec. 23   RCW 19.122.060 (Exemption from notice and marking requirements for property owners) and 1984 c 144 s 6 are each repealed.

     *NEW SECTION.  Sec. 24   A new section is added to chapter 19.122 RCW to read as follows:
     Nothing in this act may be construed to classify a consumer-owned utility, as defined in RCW 19.27A.140, to be under the authority of the commission.
     *Sec. 24 was vetoed. See message at end of chapter.

NEW SECTION.  Sec. 25   A new section is added to chapter 19.122 RCW to read as follows:
     This act may be known and cited as the underground utility damage prevention act.

NEW SECTION.  Sec. 26   By December 1, 2015, the utilities and transportation commission must report to the appropriate committees of the legislature on the effectiveness of the damage prevention program established under chapter 19.122 RCW. The legislative report required under this section must include analysis of damage data reported under section 20 of this act.

NEW SECTION.  Sec. 27   This act takes effect January 1, 2013.