On January 9, 2014, the Washington Utilities and Transpiration Commission (“UTC”) announced that it has fined two utility companies, Pacific Power and Light Co. (“Pacific Power”) and Frontier Communications Northwest, Inc. (“Frontier”), under Washington’s new Underground Utility Damage Prevention Act (the “Act”).[i]  These are the first two penalties issued by the UTC since the Act took effect on January 1, 2013.

Under the Act, excavators must mark their excavation area and provide notice to the 811 Call Before You Dig program two to ten days before excavation.  Facility operators then have two days to mark locatable facilities and provide information about the presence of unloadable facilities.  Any excavator or facility operator who observe or cause damage to an underground facility must report the damage event to the UTC.  Major Changes to the “One-Call” Statute – Part I; Part II; Part III.  The Act was passed to satisfy Congress’s mandate that each state adopt an effective damage prevention program that meets certain prescribed inspection, protection, enforcement, and safety elements.

Both companies were fined $1,000 (the maximum for a first time offender) for failing to locate and mark their underground utilities, which resulted in contractors damaging the facilities during excavation.  Pacific Power was responsible for marking underground electrical conduits and cables for a project in Yakima, WA, but failed to do so, giving rise to damage when a contractor began excavating the site.  Similarly, Frontier failed to mark underground communications equipment in Everett, WA, which was later damage during a contractor’s digging.  Subsequent violations of the Act may subject Pacific Power and Frontier to penalties of up to $5,000.

The companies had 15 days to pay the fine, contest the violation, or request to mitigation.  If a fine is contested or a request to mitigate is submitted, collection of the penalty will be suspended until the UTC issues a final order, which is subject to judicial review.  Whatever funds are collected will go to the damage prevention account and used for outreach to improve worker and public safety.

[i] Washington Utilities and Transportation Commission, UTC Fines Two Utility Companies in First Use of “Dig Law”, January 6, 2014.