California’s “One Call” statute (Government Code § 4216, et seq.) provides many helpful guidelines for determining the respective duties of both owners and excavating contractors when construction work is planned in the vicinity of an underground utility or facility. But while owners contend that alleged violations of the detailed procedures set forth in the statute are the sole basis for their civil liability in the event of contamination or injury caused by a third party hit, substantial litigation experience in the industry demonstrates that many disagree. Many other legal theories have been advanced by claimants and contractors, at least some of which have been given preliminary approval by the courts, including strict liability for ultra hazardous activity, general negligence, and even affirmative fraud (e.g., purported misrepresentations about the location of the utility in the form of allegedly inadequate warning markers). Consequently, the prudent utility or underground facilities owner will proceed cautiously with a full array of enhanced safety procedures rather than relying solely on technical statutory compliance.
Generally, the “One Call” statute provides that when construction is planned near a utility, the excavating contractor has the burden of marking the area in white paint and then contacting the centralized Underground Service Alert (“USA”) facility. The utility owner is then obligated to notify the contractor within 48 hours of any risk that the excavation could impact the utility and lead to a puncture or cut. Some experts believe that a utility owner may establish compliance by providing as-built drawings but others disagree. Further, while the utility owner is required to field mark a location of the utility following the initial USA notification, it remains unclear how far the field marking must extend (e.g., if construction activity is scheduled to take place over many months and along many miles of a buried fuel line, is it necessary for the initial marking to denote the entire length of the pipe since subsequent construction might dislodge such markings?) Other questions arise as to whether the contractor is permitted to rely upon alleged verbal representations by the utility owner’s representatives as to location of the line, or whether the field markings themselves are the only reliable evidence. And how much diligence is required of a utility owner to monitor ongoing construction after the initial USA notification and marking? These are only some of the questions raised in recent court battles involving numerous releases in the region, some of which led to catastrophic explosions, deaths, serious burns and widespread contamination claims.
Transport and communications infrastruture such as gas, telecom or petroleum lines are also highly regulated, and the backdrop of federal regulations such as DOT 195 and OSHA requirements for workplace safety (a utility owner may be cited for safety violations even on third party construction sites involving third party employees) create the risk of substantial monetary penalties and continued licensing issues, not to mention additional grounds for evidence in civil lawsuits. In the case of contamination arising from third party hits during construction, state environmental agencies can also commence investigations and threaten regulatory sanctions. These include not only Federal agencies such as the Pipeline and Hazardous Materials Safety Administration of the Department of Transportation and the Environmental Protection Agency, but also California’s Department of Fish & Game, the State Fire Marshall, Regional Water Boards and local District Attorneys.
For a variety of reasons, including the potential for punitive damage exposure that can arise when a series of incidents occurs over an extended period of time, a utility owner’s internal safety procedures can be critical, both as to their comprehensiveness and as to follow-up compliance. Not only it is necessary and desirable to have adequate reporting, training , and procedural manuals in place, but responsible investigations and subsequent “lessons learned” meetings can be extremely helpful in later establishing solid owner responsiveness and risk sensitivity.
Experience has also shown that one of the most useful tools in addressing releases or line cuts associated with alleged violations of the One Call statute is the availability of a quick response team. To ensure reliability and effectiveness, such teams should include technical emergency specialists as well as legal counsel who can assist in factual investigations, preservation of evidence, and the protection of privileged information to enhance a full, frank and thorough investigation.