In Part I of this blog post concerning the new “Washington Underground Utility Damage Prevention Act” (the “Act”), we gave an overview of the major changes to RCW 19.122, the “one-call statute.” In Part II of the post, we provided an outline of the major changes directed at excavators or contractors engaged in excavation operations under the new statute. The following post informs contractors of what happens – how they get paid – if they hit an unlocatable “underground facility” (including a “service lateral”) under the new one-call statute. Remember that the statute is NOT effective until January 1, 2013.
(1) “Underground Facility” and “Service Lateral” Definitions:
- Underground Facility. The statute defines an “Underground Facility” as “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.”[i] The definition does not include pipelines, which generally convey “hazardous” materials.
- Service Lateral. The statute separately defines a “service lateral” as “an underground water, storm water, or sewer facility located on 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.” While “service laterals” fall within the definition of an “underground facility,” for the purposes of the statute, “service laterals” only include those underground utilities for water, storm water, and sewer that connect an end used to the facility operator’s underground facility (e.g, the section of sewer line that connects a residential home to the sewer main).
(2) Who is Required to Provide the Location Information? – Determined by Location of Excavation
There are two entities in the statute that must provide information to a contractor/excavator after the contractor/excavator calls the one-call phone number: (1) facility operators, and (2) end users. The location of the excavation determines which entity is required to provide underground facility information and how they must provide that information to the contractor/excavator.
- Public Right of Way. The facility operator (an owner of an underground facility or in the business of supplying utility services) is responsible for locating all utilities, which are generally within the public right-of-way and do not directly connect to private property. The facility operator, however, must “designate the presence or location” of “service laterals” if the service lateral (1) connects the end user to the facility operator’s main utility line, and (2) within a public right-of-way or utility easement.
- Private Property. The end user (utility customer or consumer of utility services) is “responsible for determining the location of a service lateral on their property or a service lateral that they own,” but not if the service lateral is within a right-of-way or utility easement. An end user, however, is not required to subscribe to a one-call statute.
Practice Point: If the contractor is excavating in a public right-of-way or utility easement, the facility operator must provide the service lateral information which they are expected to provide two-days after the “one-call” number is contracted. The end user is responsible for providing the locate information, usually through a private locate service when excavation occurs on the end user’s property (private property).
The excavator, therefore, must call the “one-call” number even if digging on private property, unless there is an exemption: (i) an emergency excavation (see Part II of this blog series), (ii) excavation of less than 12″ on private noncommercial property if the excavation is performed by the property owner, (iii) agricultural tilling (12″ depth within utility easement, 20″ depth outside of utility easement, (iv) replacing a traffic sign that was installed prior to January 1, 2013, (v) maintaining roads involving excavation less than 6″, (vi) creation of bar holes less than 12″ in depth, and (vii) construction, operation, or maintenance by an irrigation districts owned by the Bureau of Reclamation.
(3) How Each Entity Provides the “Unlocatable Underground Facility” Information Varies as to Whether the Entity is a Facility Operator or End User/Project Owner.
Unlocatable Underground Facility. Facility Operators and End Users, under the statute, are held to different standards as to what information they are required to provide if a utility cannot be located – an “unlocatable underground facility.” An “unlocatable underground facility” is defined in the statute as “an underground facility that cannot be marked with reasonable accuracy using the available information to designate the location of an underground facility,” including, but not limited to, “service laterals, storm drains, and nonconductive and nonmetallic underground facilities that do not contain trace wires.”[ii]
- End Users Obligations to Contractors/Excavators. An end user is responsible for determining the location of a service lateral on its property or a service lateral it owns.
- Facility Operators’ Obligations to Contractors/Excavators. Under the statute, 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. Facility operators may indicate unlocatable or identifiable but unlocatable underground facilities “in a manner that includes any of the following”:
(i) Place a “triangle mark” at the main utility line, which “points at the building, structure, or property in question, indicating the presence of an unlocatable or identifiable but unlocatable underground facility, including a service lateral;”
(ii) Arrange to meet with the contractor at the worksite and provide the “available information about the location of service laterals;” or
(iii) Provide copies of the “best reasonably available records by electronic message, mail, facsimile, or other delivery method.”
A facility operator’s “good faith attempt” to comply with any of the above three options will shield it from liability for “damages or injuries that may result for such compliance,” but the facility operator will still be liable for the cost to repair or relocate the “unlocatable” underground utilities.[iii]
- The Water Line Exception.
Presently, under the statute, “[a]n 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 junctions boxes on or adjacent to the construction site.”[iv] Thus, as it now stands, a facility operator is not required to indicated the presence of any existing underground facility if there are other fixtures within or adjacent to the construction site. For example, if there is a gas meter on or adjacent to the project, then the owner of the gas service is not required to mark-out or indicate the gas line service laterals.
Beginning January 1, 2013, a facility operator is required to identify ALL service laterals or appurtenances even if there are other visible facilities; the only exceptions are water lines. If the line “convey[s] only water and the presence [of the service lateral] can be determined from other visible water facilities, such as water meters, water valve covers, and junctions boxes in or adjacent to the boundary of an excavation area.”[v] Thus, unless the facility is for water, the facility operator MUST locate the service laterals.
(4) Rights of the Excavator and/or Facility Operator When a Utility Line is Hit.
- Excavator. The excavator has the right to receive reasonable compensation from a facility operator for the costs incurred by the excavator if the facility operator does not locate its underground facilities in accordance with the requirements of the statute. The statute is silent as to the excavator’s rights against the end user; however, since the end user is responsible for determining the location of the service lateral on its property (or service lateral that it owns), the excavator should be able to recover against the end user in the event the end user mislocated or failed to advise the excavator of a service lateral.
- Facility Operator. A facility operator has the right to receive reasonable compensation from the excavator for costs incurred by the facility operator if the excavator does not comply with the requirements of the statute. Though damages for end users are not specifically referenced in the statute, an end user will likely be able to recover from the excavator if the end user properly determined the location of a service lateral, but the excavator nevertheless damaged the service lateral.
(5) “Not Identified” and “Not Located” Underground Facilities are Deemed “Changed or Differing Site Conditions.”
- Project Owner is Required to Disclose Underground Facilities in the Bid or Contract Documents. Under the statute, the following two conditions will be treated as a “changed or differing site condition”:
(i) “An underground facility not identified as required by [the One Call Statute] or other provision of law” or,[vi]
(ii) “An underground facility not located by [the One Call Statute] or other provision of law, by the project owner, facility operator, or excavator if the project owner or excavator is also a facility operator.”[vii]
The legislature’s use of the term “differing site condition” is presumably a short-hand reference to industry parlance that permits a contractor/excavator to recover for “not identified” and “not located” underground facilities. At common law, a contractor is not permitted to recover for a differing site condition unless the contract contained a “differing site conditions” provision. Here, the legislature, by using the term “differing site condition” has provided the contractor a statutory action to recover if the contractor/excavator hits an underground facility that is not identified or not located even if the contract is silent as to differing site conditions recovery.
- The Project Owner, End User or Facility Operator Cannot Shift to the Contractor/Excavator the Risk of Hitting Unlocated Underground Facilities. The end user, project owner, and facility operator cannot shift the risk of failing to locate facilities to the contractor via a contractural “teflon” clause (exculpatory clause). The new statute (as does the present law) specifically provides that such provisions are unenforceable:
“Any clause in an excavation contract which attempts to allocate liability, or requires indemnification to shift the economic consequences of liability, that differs from the provisions of this chapter is against public policy and unenforceable.”[viii]
In some contracts, the end user, project owner or facility operator may attempt to place the risk of unidentified or not located underground facilities back on the contractor by providing an exculpatory clause in the contract, such as “no claims for extra work or damages will be considered if it is found during the construction the utility line locations vary from that indicated on the drawings.” This type of risk shifting clause would likely be unenforceable. If the contractor were to hit an underground facility that was not identified or not located the contractor/excavator should be able to recover from the entity that was required to provide the locate information for the unlocated or unidentified facility the teflon clause notwithstanding.
(6) A Contractor/Excavator is Entitled to Recover Its Attorneys’ Fees.
The statute provides that “any action brought under this section, the prevailing party is entitled to reasonable attorneys’ fees.”[ix] Thus, if the contractor hits an underground facility that that was not located and the contractor is required to file suit to recover its damages (to repair or relocate the underground facility), then the contractor may also recover attorney fees. Conversely, the utility companies are also entitled to recover their attorney fees and costs if they prevail against the contractor/excavator.
The location of the project excavation will determine who is required to provide the locate. For projects on private property, the property owners (“end users”) are required to provide locate information, while for projects within the public right-of-way (e.g. public street or highway), the utility owners (facility operators) are required to provide the locate information. If a contractor hits an underground facility that was neither identified nor located, the unknown underground facility will be treated as a differing site condition and the contractor is able to recover the cost to repair/relocate as a matter of law. If the contractor has to bring a suit to recover its damages from hitting an underground facility that was not identified or not located, it can also recover its attorneys’ fees.
[i] Washington H.B. 1634, See also Revised RCW 19.122.020(20) (effective January 1, 2013).
[ii] See Washington H.B. 1634, See also Revised RCW 19.122.020(28) (effective January 1, 2013).
[iii] See Washington H.B. 1634, See also Revised RCW 19.122.030(4)(b) (effective January 1, 2013).
[iv] Current RCW 19.122.030(5)
[v] Washington H.B. 1634, See also Revised RCW 19.122.030(9) (effective January 1, 2013).
[vi] Under the present statute the conjunctive “and” is used, the new statute employs the disjunctive “or.”
[vii] See Washington H.B. 1634, See also Revised RCW 19.122.040(1) (effective January 1, 2013).
[viii] Washington H.B. 1634, See also Revised RCW 19.122.030(3) (effective January 1, 2013).
[ix] Washington H.B. 1634, See also Revised RCW 19.122.040(4) (effective January 1, 2013).