N.Y. Public Service Law § 119-b: Protection of underground facilities

§ 119-b. Protection of underground facilities. 1. As used in this

section, the following terms shall have the following meanings:

a. "Person" means any individual, firm, corporation, association or

partnership, cooperative association, joint venture, joint stock

association, business trust, their lessees, trustees or receivers,

governmental unit or public authority whether or not incorporated.

b. "Excavation" means an operation for the purpose of movement or

removal of earth, rock or other materials in or on the ground by use of

mechanized equipment or by blasting, and includes, but is not limited

to, auguring, backfilling, boring, drilling, grading, plowing in,

pulling in, trenching and tunneling; provided, however, that the

movement of earth by tools manipulated only by human or animal power and

the tilling of soil for agricultural purposes shall not be deemed

excavation.

c. "Demolition" means the wrecking, razing, rending, moving or

removing of any structure.

d. "Underground facilities" means pipelines, conduits, ducts, cables,

wires, manholes, vaults or other such facilities or their attachments,

which have been installed underground by an operator to provide services

or materials. Such term shall not include oil and gas production and

gathering pipeline systems used primarily to collect oil or gas

production from wells.

e. "Excavator" means a person who is engaged in a trade or business

which includes the carrying out of excavation or demolition; provided,

however, that an individual employed by an excavator, and having no

supervisory authority, other than the routine direction of employees,

over an excavation or demolition, shall not himself or herself be deemed

an excavator for the purposes of this article. In construing and

enforcing the provisions of this article, the act of any employee or

agent of any excavator acting within the scope of his or her official

duties or employment shall be deemed to be the act of such excavator.

f. "Operator" means a person who operates an underground facility or

facilities to furnish any of the following services or materials:

electricity, gases, steam, liquid petroleum products, telephone or

telegraph communications, cable television, sewage removal, traffic

control systems, or water.

g. "Damages" means an impact upon or removal of support from an

underground facility consequent to excavation or demolition which,

according to the operating practices of the operator, would necessitate

repair of such facility, destruction of any underground facility or its

protective coating, housing or other protective device, and impact with

or severance of an underground facility.

h. "One-call notification system" means an organization among whose

purposes is establishing and carrying out procedures and programs to

protect underground facilities from damage due to excavation and

demolition, including but not limited to, receiving notices of intent to

perform excavation and demolition, and transmitting the notices to one

or more of its member operators of underground facilities in the

specified area.

2. The commission shall adopt rules and regulations to implement and

carry out the requirements of article thirty-six of the general business

law established for the protection of underground facilities. Such rules

and regulations shall include, but not be limited to, requirements for

notice, one-call notification systems, participation of operators in

such systems, designation and marking of the location of underground

facilities and the verification of the designated or marked location of

underground facilities, support for underground facilities and

obligations of excavators to protect underground facilities under such

article, including the use of hand-dug test holes at underground

facilities furnishing gas or liquid petroleum products and such other

matters as may be appropriate for the protection and security of

property, life or public health, safety or welfare.

3. Such rules and regulations relating to one-call notification

systems shall establish qualifications for the operation of such

systems.

4. The rules and regulations adopted pursuant to this section shall be

in accordance with the provisions of article thirty-six of the general

business law.

5. Any person operating a one-call system in the state shall register

with and obtain certification from the commission. The commission shall

have the power to grant, amend, or revoke certificates of any such

system. Any one-call system engaged in business on or before the

effective date of this subdivision, after registration with the

commission, shall be registered, certified and authorized to continue

its business operations.

6. The commission shall have power, through the inspectors or duly

authorized employees of the department, to examine and inspect

excavation and demolition methods used by any person within fifteen feet

in any direction of any underground pipeline used for conveying natural

gas or of any underground telephone, electric, steam or water facility

used for providing service and to order compliance with the standards

for excavation and demolition near underground facilities contained in

regulations adopted by the commission to implement and carry out the

requirements of article thirty-six of the general business law

established for the protection of underground facilities.

7. Notwithstanding any inconsistent provisions of this chapter, the

enforcement procedure for rules and regulations adopted by the

commission shall be as follows:

a. any violation of any provisions of such rules and regulations is a

violation of the provisions of article thirty-six of the general

business law and the attorney general may bring and prosecute an action

to recover penalties for such violations as provided in paragraph c of

subdivision one of section seven hundred sixty-five of such law;

b. any penalties, fines and financial liability resulting from

violations of such rules and regulations shall be those specified in

section seven hundred sixty-five of the general business law.

8. In the event a violation of such rules and regulations occurs and

such violation is subject to a civil penalty pursuant to article

thirty-six of the general business law, the commission shall determine

the amount of the penalty after consideration of the nature,

circumstances and gravity of the violation, history of prior violations,

effect on public health, safety or welfare, and such other matters as

may be required and shall send a copy of its determination to the

excavator, operator, commissioner of labor and attorney general. Upon

receipt of such determination, the attorney general may commence an

action to recover such penalty.

9. Any entity which leases excavation equipment to the public shall

provide a notice to lessees of such excavation equipment that informs

such lessees about their responsibilities under state law to protect

underground facilities and the existence, operation, programs, and

telephone number of the one-call notification system.