| 12 | 13 | | A BILL TO BE ENTITLED 1 |
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| 13 | 14 | | AN ACT TO UPDATE THE UNDERGROUND UTILITY SAFETY AND DAMAGE 2 |
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| 14 | 15 | | PREVENTION ACT. 3 |
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| 15 | 16 | | The General Assembly of North Carolina enacts: 4 |
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| 16 | 17 | | SECTION 1. G.S. 87-117 reads as rewritten: 5 |
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| 17 | 18 | | "§ 87-117. Definitions. 6 |
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| 18 | 19 | | The following definitions apply in this Article: 7 |
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| 19 | 20 | | … 8 |
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| 20 | 21 | | (20) Positive response. – An automated information system that allows excavators, 9 |
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| 21 | 22 | | locators, operators, and other interested parties to determine the status of a 10 |
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| 22 | 23 | | locate request. 11 |
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| 23 | 24 | | (20a) Soft dig technologies. – An excavation method that uses air or water pressure 12 |
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| 24 | 25 | | to break up soil and remove it with vacuum extraction. 13 |
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| 25 | 26 | | (21) Subaqueous. – A facility that is under a body of water, including rivers, 14 |
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| 26 | 27 | | streams, lakes, waterways, swamps, and bogs. 15 |
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| 27 | 28 | | (22) Tolerance zone. – If the diameter of the facility is known, the horizontal 16 |
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| 28 | 29 | | distance of one-half of the known diameter plus 24 inches on either side of the 17 |
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| 29 | 30 | | designated center line or, if the diameter of the facility is not marked, 24 inches 18 |
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| 30 | 31 | | on either side of the outside edge of the mark indicating a facility or, for 19 |
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| 31 | 32 | | subaqueous facilities, a clearance of 15 feet on either side of the indicated 20 |
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| 32 | 33 | | facility. 21 |
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| 33 | 34 | | …." 22 |
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| 34 | 35 | | SECTION 2. G.S. 87-121 reads as rewritten: 23 |
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| 35 | 36 | | "§ 87-121. Facility operator responsibilities. 24 |
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| 36 | 37 | | (a) An operator shall provide to the excavator the following: 25 |
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| 37 | 38 | | (1) The horizontal location and description of all of the operator's facilities in the 26 |
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| 38 | 39 | | area where the proposed excavation or demolition is to occur. The location 27 |
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| 39 | 40 | | shall be marked by stakes, soluble paint, flags, or any combination thereof, as 28 |
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| 40 | 41 | | appropriate, depending upon the conditions in the area of the proposed 29 |
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| 41 | 42 | | excavation or demolition. The operator shall, when marking as provided under 30 |
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| 42 | 43 | | this subdivision, use the APWA Uniform Color Code. Where practical, 31 |
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| 43 | 44 | | painted surface marks should be of adequate length to distinguish from dots. 32 |
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| 44 | 45 | | If the diameter or width of the facility is greater than four inches, the 33 |
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| 45 | 46 | | dimension of the facility shall be indicated at least every 50 feet in the area of 34 |
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| 48 | 53 | | facilities in the area of the proposed excavation or demolition shall locate each 1 |
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| 49 | 54 | | facility. 2 |
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| 50 | 55 | | … 3 |
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| 51 | 56 | | (b) Unless otherwise provided in a written agreement between the operator and the 4 |
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| 52 | 57 | | excavator, including an electronically transmitted written agreement, the operator shall provide 5 |
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| 53 | 58 | | to the excavator the information required by subsection (a) of this section within the times 6 |
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| 54 | 59 | | provided below: 7 |
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| 55 | 60 | | (1) For a facility, within three full working days after the day notice of the 8 |
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| 56 | 61 | | proposed excavation or demolition was provided to the Notification 9 |
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| 57 | 62 | | Center.prior to the work start date provided by the excavator. 10 |
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| 58 | 63 | | (2) For a subaqueous facility, within 10 full working days after the day notice of 11 |
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| 59 | 64 | | the proposed excavation or demolition was provided to the Notification 12 |
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| 60 | 65 | | Center. 13 |
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| 61 | 66 | | (3) If the operator declares an extraordinary circumstance, the times provided in 14 |
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| 62 | 67 | | this subsection shall not apply. 15 |
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| 63 | 68 | | (4) For an emergency request, an initial contact with the excavator shall be made 16 |
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| 64 | 69 | | within three hours. 17 |
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| 65 | 70 | | (5) For a request of an unmarked facility required by G.S. 87-122(c)(6), the 18 |
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| 66 | 71 | | operator shall arrange for the facility to be marked within three hours from the 19 |
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| 67 | 72 | | time the additional notice is received by the Notification Center. 20 |
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| 68 | 73 | | …." 21 |
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| 69 | 74 | | SECTION 3. G.S. 87-122 reads as rewritten: 22 |
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| 70 | 75 | | "§ 87-122. Excavator responsibilities. 23 |
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| 71 | 76 | | (a) Before commencing any excavation or demolition operation, the person responsible 24 |
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| 72 | 77 | | for the excavation or demolition shall provide or cause to be provided notice to the Notification 25 |
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| 73 | 78 | | Center of his or her intent to excavate or demolish. Notice for any excavation or demolition that 26 |
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| 74 | 79 | | does not involve a subaqueous facility must be given within three to 12 full no less than three 27 |
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| 75 | 80 | | full working days before the proposed commencement date of the excavation or demolition. 28 |
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| 76 | 81 | | Notice for any excavation or demolition in the vicinity of a subaqueous facility must be given 29 |
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| 77 | 82 | | within no less than 10 to 20 full working days before the proposed commencement date of the 30 |
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| 78 | 83 | | excavation or demolition. Notice given pursuant to this subsection shall expire 15 full working 31 |
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| 79 | 84 | | 28 calendar days after the date notice was given. work start date. No excavation or demolition 32 |
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| 80 | 85 | | may continue after this 15-day 28-day period unless the person responsible for the excavation or 33 |
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| 81 | 86 | | demolition provides a subsequent notice which shall be provided in the same manner as the 34 |
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| 82 | 87 | | original notice required by this subsection. When demolition of a building is proposed, the 35 |
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| 83 | 88 | | operator shall be given a reasonable time in which to remove or protect the operator's facilities 36 |
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| 84 | 89 | | before the demolition commences. 37 |
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| 85 | 90 | | (b) The notice required by subsection (a) of this section shall, at a minimum, contain all 38 |
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| 86 | 91 | | of the following: 39 |
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| 87 | 92 | | (1) The name, address, and telephone number of the person providing the notice. 40 |
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| 88 | 93 | | (2) The anticipated starting date of the proposed excavation or demolition. 41 |
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| 89 | 94 | | (3) The anticipated duration of the proposed excavation or demolition. 42 |
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| 90 | 95 | | (4) The type of proposed excavation or demolition operation to be conducted. 43 |
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| 91 | 96 | | (5) The location of the proposed excavation or demolition by one of the 44 |
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| 92 | 97 | | following:The area of locate of the proposed excavation which is limited to 45 |
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| 93 | 98 | | an area the excavator reasonably believes may be completed within 28 46 |
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| 94 | 99 | | calendar days from the work start date and does not include any areas 47 |
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| 95 | 100 | | completed and accepted by the authorities having jurisdiction. The area of 48 |
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| 96 | 101 | | locate is also limited to one of the following: 49 |
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| 97 | 102 | | a. A single parcel that may exceed 1/4 mile in linear length identified by 50 |
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| 98 | 103 | | a single address. 51 General Assembly Of North Carolina Session 2025 |
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| 100 | 105 | | b. The lesser of five adjoining parcels identified by addresses, not to 1 |
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| 101 | 106 | | exceed 1/4 mile in linear length or an area not to exceed 1/4 mile in 2 |
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| 102 | 107 | | linear length. 3 |
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| 103 | 108 | | (6) Whether or not explosives are to be used in the proposed excavation or 4 |
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| 104 | 109 | | demolition. 5 |
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| 105 | 110 | | (c) An excavator shall comply with the following: 6 |
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| 106 | 111 | | … 7 |
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| 107 | 112 | | (10) The excavator shall not use mechanized use nonmechanized equipment within 8 |
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| 108 | 113 | | 24 inches of a 24-inch circumference around a facility that is an oil, petroleum 9 |
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| 109 | 114 | | products, or highly volatile liquid pipeline system, a gas transmission line, or 10 |
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| 110 | 115 | | an electric transmission line unless the facility operator has consented to the 11 |
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| 111 | 116 | | use in writing and the operator's representative is on site during the use of the 12 |
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| 112 | 117 | | mechanized equipment. Within the tolerance zone of a pipeline system, the 13 |
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| 113 | 118 | | excavator shall use safe excavation practices, including, but not limited to, 14 |
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| 114 | 119 | | hand digging or potholing. For purposes of this subdivision, the term "oil, 15 |
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| 115 | 120 | | petroleum products, or highly volatile liquid pipeline system" has the same 16 |
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| 116 | 121 | | meaning as the term "pipeline system" in Title 49 C.F.R. § 195.2, the term 17 |
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| 117 | 122 | | "gas transmission line" has the same meaning as the term "transmission line" 18 |
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| 118 | 123 | | in Title 49 C.F.R. § 192.3, and the term "electric transmission line" has the 19 |
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| 119 | 124 | | same meaning as the term "transmission line" in G.S. 62-100(7)." 20 |
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| 120 | 125 | | SECTION 4. G.S. 87-124 reads as rewritten: 21 |
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| 121 | 126 | | "§ 87-124. Exemptions. 22 |
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| 122 | 127 | | The notice requirements in G.S. 87-122(a) and G.S. 87-122(b) do not apply to the following: 23 |
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| 123 | 128 | | (1) An excavation or demolition performed by the owner of a single-family 24 |
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| 124 | 129 | | residential property on his or her own land that does not encroach on any 25 |
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| 125 | 130 | | operator's right-of-way, easement, or permitted use. 26 |
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| 126 | 131 | | (2) An excavation or demolition performed by the owner of a single-family 27 |
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| 127 | 132 | | residential property on his or her own land that encroaches on any operator's 28 |
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| 128 | 133 | | right-of-way, easement, or permitted use that is performed with 29 |
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| 129 | 134 | | nonmechanized equipment. 30 |
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| 130 | 135 | | (3) An excavation or demolition that involves the tilling of soil for agricultural or 31 |
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| 131 | 136 | | gardening purposes.purposes that encroaches on any operator's right-of-way, 32 |
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| 132 | 137 | | easement, or permitted use and is less than 12 inches in depth. 33 |
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| 133 | 138 | | (4) An excavation or demolition for agricultural purposes, as defined in 34 |
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| 134 | 139 | | G.S. 106-581.1, performed on property that does not encroach on any 35 |
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| 135 | 140 | | operator's right-of-way, easement, or permitted use. 36 |
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| 136 | 141 | | (5) An excavation by an operator or surveyor operator, surveyor, or their 37 |
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| 137 | 142 | | contractor with nonmechanized equipment for the following purposes: 38 |
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| 138 | 143 | | a. Locating for a valid notification request or for the minor repair, 39 |
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| 139 | 144 | | connection, or routine maintenance of an existing facility or survey 40 |
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| 140 | 145 | | pin. 41 |
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| 141 | 146 | | b. Probing underground to determine the extent of gas or water 42 |
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| 142 | 147 | | migration. 43 |
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| 143 | 148 | | (6) An excavation or demolition performed when those responsible for routine 44 |
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| 144 | 149 | | maintenance of a right-of-way or any other governmental entity are 45 |
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| 145 | 150 | | performing, with labor on their permanent payroll, for the purpose of 46 |
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| 146 | 151 | | maintenance activities within the right-of-way. Maintenance activities shall 47 |
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| 147 | 152 | | include emergency replacement of signs critical for maintaining safety or 48 |
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| 148 | 153 | | reshaping of shoulders and ditches to the original road profile. Maintenance 49 |
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| 149 | 154 | | activities do not include the initial installation of traffic signs, traffic control 50 |
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| 150 | 155 | | equipment, guardrails, or drainage structures. The provisions of this 51 General Assembly Of North Carolina Session 2025 |
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| 152 | 157 | | subdivision do not apply when the excavation or demolition is performed by 1 |
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| 153 | 158 | | a contractor acting on behalf of a person or entity responsible for routine 2 |
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| 154 | 159 | | maintenance of a right-of-way or on behalf of any other governmental 3 |
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| 155 | 160 | | entity.right-of-way. 4 |
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| 156 | 161 | | …." 5 |
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| 157 | 162 | | SECTION 5. G.S. 87-126 is amended by adding a new subsection to read: 6 |
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| 158 | 163 | | "(c) The venue for claims adjudication for actual and consequential damages occurring in 7 |
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| 159 | 164 | | North Carolina shall be held within the North Carolina court system in the county of the 8 |
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| 160 | 165 | | occurrence." 9 |
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| 161 | 166 | | SECTION 6. G.S. 87-128 reads as rewritten: 10 |
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| 162 | 167 | | "§ 87-128. Absence of facility location. 11 |
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| 163 | 168 | | If an operator who has been given notice as provided in G.S. 87-120(d) by the Notification 12 |
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| 164 | 169 | | Center fails to respond to that notice as provided in G.S. 87-121 or fails to properly locate the 13 |
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| 165 | 170 | | facility, the person excavating is free to proceed with the excavation. Neither excavation and 14 |
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| 166 | 171 | | neither the excavator nor the person financially responsible for the excavation will be liable to 15 |
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| 167 | 172 | | the nonresponding or improperly responding operator for damages to the operator's facilities if 16 |
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| 168 | 173 | | the person doing the excavating exercises due care to protect existing facilities when there is 17 |
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| 169 | 174 | | evidence of the existence of those facilities near the proposed excavation area.so long as the 18 |
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| 170 | 175 | | excavator has exercised due care in preparing for or conducting the excavation. For the purposes 19 |
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| 171 | 176 | | of this section, the excavator shall be entitled to a presumption, rebuttable by clear and 20 |
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| 172 | 177 | | convincing evidence, that it has exercised due care in preparing for or conducting the excavation 21 |
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| 173 | 178 | | where (i) the Notification Center gives the operator the notice required in G.S. 87-120(d), (ii) the 22 |
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| 174 | 179 | | operator fails to respond to that notice as provided in G.S. 87-121 or fails to properly locate the 23 |
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| 175 | 180 | | facility, (iii) the excavator has complied with the requirements of G.S. 87-122(c), and (iv) the 24 |
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| 176 | 181 | | excavator did not have actual knowledge of the existence of a facility located within the area of 25 |
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| 177 | 182 | | the excavation to be performed." 26 |
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| 178 | 183 | | SECTION 7. G.S. 87-129 reads as rewritten: 27 |
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| 179 | 184 | | "§ 87-129. Underground Damage Prevention Review Board; enforcement; civil penalties. 28 |
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| 180 | 185 | | (a) There is hereby established the Underground Damage Prevention Review Board to 29 |
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| 181 | 186 | | review reports of alleged violations of this Article. The members of the Board shall be appointed 30 |
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| 182 | 187 | | by the Governor. The Board shall consist of 15 members as follows: 31 |
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| 183 | 188 | | (1) A representative from the North Carolina Department of Transportation; 32 |
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| 184 | 189 | | (2) A representative from a facility contract locator; 33 |
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| 185 | 190 | | (3) A representative from the Notification Center; 34 |
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| 186 | 191 | | (4) A representative from an electric public utility; 35 |
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| 187 | 192 | | (5) A representative from the telecommunications industry; 36 |
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| 188 | 193 | | (6) A representative from a natural gas utility; 37 |
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| 189 | 194 | | (7) A representative from a hazardous liquid transmission pipeline company; 38 |
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| 190 | 195 | | (8) A representative of a municipality, appointed on the recommendation of the 39 |
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| 191 | 196 | | League of Municipalities; 40 |
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| 192 | 197 | | (9) A highway contractor licensed under G.S. 87-10(b)(2) who does not own or 41 |
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| 193 | 198 | | operate facilities; 42 |
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| 194 | 199 | | (10) A public utilities contractor licensed under G.S. 87-10(b)(3) who does not 43 |
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| 195 | 200 | | own or operate facilities; 44 |
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| 196 | 201 | | (11) A surveyor licensed under Chapter 89C of the General Statutes; 45 |
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| 197 | 202 | | (12) A representative from a rural water system, appointed on the recommendation 46 |
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| 198 | 203 | | of the North Carolina Rural Water Association; 47 |
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| 199 | 204 | | (13) A representative from an investor-owned water system; 48 |
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| 200 | 205 | | (14) A representative from an electric membership corporation; and 49 |
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| 201 | 206 | | (15) A representative from a cable company, appointed on the recommendation of 50 |
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| 202 | 207 | | the North Carolina Cable Telecommunications Association. 51 General Assembly Of North Carolina Session 2025 |
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| 204 | 209 | | (a1) Each member of the Board shall be appointed for a term of four years. Members of 1 |
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| 205 | 210 | | the Board may serve no more than two consecutive terms. Vacancies in appointments made by 2 |
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| 206 | 211 | | the Governor occurring prior to the expiration of a term shall be filled by appointment for the 3 |
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| 207 | 212 | | unexpired term. To the extent practicable, the Governor shall fill any vacancy in the Board within 4 |
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| 208 | 213 | | 60 days after the vacancy. 5 |
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| 209 | 214 | | (a2) No member of the Board may serve on a case where there would be a conflict of 6 |
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| 210 | 215 | | interest. 7 |
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| 211 | 216 | | (a3) The Governor may remove any member at any time for cause. 8 |
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| 212 | 217 | | (a4) Eight members of the Board shall constitute a quorum.A quorum is met when the 9 |
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| 213 | 218 | | majority of seated members are present. Board members may appear at meetings by simultaneous 10 |
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| 214 | 219 | | communication via conference telephone or other electronic means. 11 |
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| 215 | 220 | | (a5) The Governor shall designate one member of the Board as chair. 12 |
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| 216 | 221 | | (a6) The Board may adopt rules to implement this Article. 13 |
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| 217 | 222 | | (a7) The Board shall establish an internal attendance policy. In the event a Board member 14 |
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| 218 | 223 | | resigns or fails to meet the criteria of the attendance policy, the Board may appoint an interim 15 |
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| 219 | 224 | | member to represent the same stakeholder group until such time as the Governor appoints a 16 |
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| 220 | 225 | | replacement for the unexpired term. 17 |
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| 221 | 226 | | (b) The Board shall receive reports of alleged violations of this Article. The Board shall 18 |
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| 222 | 227 | | contact persons against whom reports have been filed to inform them of the alleged violation 19 |
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| 223 | 228 | | within 10 15 working days of the filing of the report. The Board shall maintain all of the following 20 |
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| 224 | 229 | | information regarding reports of alleged violations: 21 |
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| 225 | 230 | | (1) The name, address, and telephone number of the person making the report; 22 |
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| 226 | 231 | | (2) The nature of the report, including the statute that is alleged to have been 23 |
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| 227 | 232 | | violated; 24 |
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| 228 | 233 | | (3) Information provided by the person making the report, including 25 |
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| 229 | 234 | | correspondence, both written and electronic, pictures, and videos; and 26 |
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| 230 | 235 | | (4) Information provided by the person against whom the report has been filed, 27 |
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| 231 | 236 | | including correspondence, both written and electronic, pictures, and videos. 28 |
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| 232 | 237 | | (b1) The Board shall review all reports of alleged violations of this Article and 29 |
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| 233 | 238 | | accompanying information. If the Board determines that a person has violated any provision of 30 |
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| 234 | 239 | | this Article, the Board shall determine the appropriate action or penalty to impose for each such 31 |
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| 235 | 240 | | violation. Actions and penalties may include training, education, and a civil penalty not to exceed 32 |
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| 236 | 241 | | two thousand five hundred dollars ($2,500). The Board shall approve training courses and the 33 |
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| 237 | 242 | | sponsors of those training courses under this subsection. Any fees for training courses approved 34 |
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| 238 | 243 | | by the Board shall be paid by the person determined to have violated this Article. The Board shall 35 |
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| 239 | 244 | | notify within 30 days each person who is determined to have violated this Article in writing of 36 |
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| 240 | 245 | | the Board's determination and the Board's recommended action or penalty. A person determined 37 |
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| 241 | 246 | | to be in violation of this Article may request a hearing before the Board, after which the Board 38 |
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| 242 | 247 | | may reverse or uphold its original finding. If the Board recommends a penalty, the Board shall 39 |
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| 243 | 248 | | notify the Utilities Commission of the recommended penalty, and the Utilities Commission shall 40 |
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| 244 | 249 | | issue an order imposing the penalty. 41 |
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| 245 | 250 | | (b2) A person determined to be in violation of this Article may request an informal 42 |
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| 246 | 251 | | conference before the Board by notifying the Board in writing within 30 days of the Board's 43 |
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| 247 | 252 | | determination. Such a person must attend the informal conference in person. They may be 44 |
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| 248 | 253 | | represented by an attorney or other person and may present evidence and make arguments in 45 |
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| 249 | 254 | | favor of their position. Following the informal conference, the Board may reverse, modify, or 46 |
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| 250 | 255 | | uphold its original finding. If the Board recommends a penalty, the Board shall notify the Utilities 47 |
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| 251 | 256 | | Commission of the recommended penalty, and the Utilities Commission shall issue an order 48 |
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| 252 | 257 | | imposing the penalty within 30 days of notification by the Board. 49 |
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| 253 | 258 | | (c) A person determined by the Board under subsection (b1) of this section to have 50 |
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| 254 | 259 | | violated this Article may appeal the Board's determination by initiating an arbitration proceeding 51 General Assembly Of North Carolina Session 2025 |
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| 256 | 261 | | before the Utilities Commission within 30 days of the Board's determination. If the violating 1 |
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| 257 | 262 | | party elects to initiate an arbitration proceeding, the violating party shall pay a filing fee of two 2 |
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| 258 | 263 | | hundred fifty dollars ($250.00) to the Utilities Commission, and the Utilities Commission shall 3 |
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| 259 | 264 | | open a docket regarding the report. The Utilities Commission shall direct the parties enter into 4 |
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| 260 | 265 | | an arbitration process. The parties shall be responsible for selecting and contracting with the 5 |
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| 261 | 266 | | arbitrator. Upon completion of the arbitration process, the Utilities Commission shall issue an 6 |
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| 262 | 267 | | order encompassing the outcome of the binding arbitration process, including a determination of 7 |
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| 263 | 268 | | fault, a penalty, and assessing the costs of arbitration to the non-prevailing party. 8 |
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| 264 | 269 | | (c1) A person may timely appeal an order issued by the Utilities Commission pursuant to 9 |
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| 265 | 270 | | this section to the superior court division of the General Court of Justice in the county where the 10 |
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| 266 | 271 | | alleged violation of this Article occurred or in Wake County, for trial de novo within 30 days of 11 |
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| 267 | 272 | | entry of the Utilities Commission's order. The authority granted to the Utilities Commission 12 |
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| 268 | 273 | | within this section is limited to this section and does not grant the Utilities Commission any 13 |
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| 269 | 274 | | authority that they are not otherwise granted under Chapter 62 of the General Statutes. 14 |
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| 270 | 275 | | (d) The provisions of this Article do not affect any civil remedies for personal injury or 15 |
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| 271 | 276 | | property damage otherwise available to any person, except as otherwise specifically provided for 16 |
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| 272 | 277 | | in this Article. The penalty provisions of this Article are cumulative to and not in conflict with 17 |
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| 273 | 278 | | provisions of law with respect to civil remedies for personal injury or property damage. The clear 18 |
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| 274 | 279 | | proceeds of any civil penalty assessed under this section shall be used as provided in Section 7(a) 19 |
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| 275 | 280 | | of Article IX of the North Carolina Constitution. In any arbitration proceeding before the Utilities 20 |
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| 276 | 281 | | Commission, any actions and penalties assessed against any person for violation of this Article 21 |
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| 277 | 282 | | shall include the actions and penalties set out in subsection (b1) of this section. 22 |
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| 278 | 283 | | (d1) The Utilities Commission shall annually report to the Board compliance of persons 23 |
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| 279 | 284 | | on whom fines or penalties have been imposed under this Article. 24 |
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| 280 | 285 | | (d2) If the amount of the penalty is not paid to the Utilities Commission within 90 days of 25 |
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| 281 | 286 | | the Utilities Commission issuing the order, the Attorney General, at the request of the Utilities 26 |
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| 282 | 287 | | Commission, shall bring an action in the name of the State of North Carolina in the Superior 27 |
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| 283 | 288 | | Court for Wake County to recover the penalty. The action shall not commence until after the time 28 |
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| 284 | 289 | | has expired for an appeal from the findings, conclusions, and order of the Utilities Commission. 29 |
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| 285 | 290 | | (e) The Board is authorized to employ contractors or other personnel as it may deem 30 |
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| 286 | 291 | | necessary to carry out the provisions of this Article. 31 |
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| 287 | 292 | | (f) The Board shall maintain a record of reports of alleged violations of this Article 32 |
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| 288 | 293 | | received under subsection (b) of this section for at least four years, including responses to such 33 |
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| 289 | 294 | | reports. 34 |
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| 290 | 295 | | (g) On request of the Board, the Attorney General's office shall assign a legal 35 |
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| 291 | 296 | | representative to provide legal counsel to the Board." 36 |
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| 292 | 297 | | SECTION 8. This act becomes effective October 1, 2025. 37 |
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