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This entry was published on 2014-09-22
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Protection of underground facilities
Public Service (PBS) CHAPTER 48, ARTICLE 6
§ 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

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

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.