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.
Last modified: February 3, 2019