This month, John P. Ahlers and Paige B. Spratt published an article concerning the extensive changes made to Washington’s “one-call statute” in the Washington National Utility Contractors Association (NUCA of Washington) publication, “Focus.”
In February 2012, Ahlers & Cressman held a seminar at the NUCA of Washington headquarters in Tukwila, Washington to discuss the new changes to the one-call statute. Before the changes are implemented next January, Ahlers & Cressman will hold another seminar (date(s), time(s), and location(s) of future seminar(s) will be posted on our website: www.ac-lawyers.com). Although the statute does not go into effect until January 1, 2013, contractors should not delay implementing the changes into their safety plans.
The following is the first of a three-part blog post discussing changes to the one-call statute and the direct impacts that the revised statute has on Washington contractors.
A. Bellingham Tragedy Prompts Changes to Washington’s “One-Call” Statute
In 1999, a massive explosion rocked Bellingham, Washington, killing three people. A gas transmission valve failed, causing more than 277,000 gallons of gasoline to leak into Whatcom Creek, Hanna Creek, and Bellingham Bay. The spilled fuel burst into flames creating a “river of fire.”[i] As a result of this accident and other similar incidents around the country, Congress enacted the Pipeline Inspection, Protection, Enforcement, and Safety (“PIPES”) Act to initiate more stringent safety standards for underground utilities.
Many states, including Washington, as a response to the PIPES Act, formed commissions to develop legislation for protecting transmission pipelines and other underground utilities throughout the state. In spring 2011, Washington passed Senate House Bill 1634 (“HB 1634”), titled the “Underground Utility Damage Prevention Act” (the “Act”).[ii] The bill “[p]revents the disruption of vital services establishing a comprehensive damage prevention program for transfer pipelines, transmission pipelines, and underground facilities” and is a makeover of the “one-call” statute, RCW 19.122. See HB 1634 Digest. This new statute affects the rights of and imposes new obligations on utility contractors.
The revisions to RCW 19.122 are so extensive, the statute does not become effective until January 1, 2013, which will allow many municipalities and utility companies (now called “facility operators” under the new revisions) to adapt new procedures and safety regulations.
B. Establishment of the Utilities and Transportation Commission:
The most extensive changes to the statute include specific requirements for dealing with excavation around transmission pipelines, increased civil penalties for violations, damage reporting, creation of a Safety Committee, and granting the Utilities and Transportation Commission (“UTC”) more authority to enforce the law and implement civil penalties.
“Facility operators” (defined as “any person who owns an underground facility or is in the business of supplying any utility service or commodity for compensation”)[iii] must subscribe to the “one-number” locator services. Failure by the facility operator to subscribe is considered “willful intent to avoid compliance”[iv] and will be subject to the civil penalties outlined in the statute (not more than $1,000 for the first penalty and not more than $5,000 for each subsequent violation).[v]
The statute directs the UTC to contract with a nonprofit entity, “whose purpose is to reduce damages related to underground and above ground facilities, promote safe excavation practices, and review complaints.” [vi] To accomplish this objective, the nonprofit must create a 13-member Safety Committee consisting of participants over all industries dealing with underground utilities: contractors, excavators, electrical utilities, pipeline companies, the UTC, telecommunication companies, etc. The Safety Committee, in reviewing complaints, will make written notifications to the UTC of violations with supporting documentation.
Only the UTC may enforce the civil penalties, while taking into consideration the Safety Committee’s notifications. The Safety Committee may review complaints of alleged violation, which may be brought by “any person.”[vii] The Safety Committee will then appoint 3 to 5 members to review the complaints. The member representation between facility operators and excavators must be equal to review complaints (for every one facility operator representative there must be an excavator representative). The Safety Committee then may provide written notification to the UTC with supporting documentation to show that a violation of the statute has occurred and recommend remedial action and/or penalties. Upon receiving notification, the UTC may enforce the Safety Committee’s recommendation. Although, both the Safety Committee and UTC may or may not investigate and enforce alleged violations of the statute (there is no language in the statute that makes enforcement a requirement), there is some incentive to enforce violations and impose penalties. All penalties paid will be placed into a “damage prevention account” to fund “educational programming designed to improve worker and public safety relating to excavation and underground facilities.”[viii]
Part II of this blog post will discuss the changes that have a direct impact to excavators or contractors engaged in excavation operations.
[ii] Washington H.B. 1634, See also Revised RCW 19.122.110(2)(b) (effective January 1, 2013).
[iii] Washington H.B. 1634, See also Revised RCW 19.122.020(25) (effective January 1, 2013).
[iv] Washington H.B. 1634, See also Revised RCW 19.122.027(5) (effective January 1, 2013).
[v] Washington H.B. 1634, See also Revised RCW 19.122.070(1) (effective January 1, 2013).
[vi] Washington H.B. 1634, See also Revised RCW 19.122.110(2)(b) (effective January 1, 2013).
[vii] Washington H.B. 1634, See also Revised RCW 19.122.110(5) (effective January 1, 2013).
[viii] Washington H.B. 1634, See also Revised RCW 19.122 (effective January 1, 2013).