Thelen LLP

Following is a checklist to help excavators and others involved with excavation better understand One-Call issues in the state where they are working. Each state's One-Call statute is different. If you are unsure how a particular One-Call statute or regulation applies to a particular situation, consult a knowledgeable lawyer. While One-Call centers and their Web sites can be helpful, excavators are held responsible for fully complying with One-Call laws.


Does the planned activity or excavation require One-Call notification?

In answering this question, be sure to consider:

		In what state will the planned activity take place.
		Whether there are any One-Call-related statutes or regulations in that state in addition to the basic One-Call statute.
		Whether the planned activity falls within the applicable One-Call statute.
		Whether it would be more advantageous to comply with the One-Call statute even if you believe the planned activity is exempt.

Many state One-Call Web sites offer Frequently Asked Questions, a list of applicable laws and state-specific excavation guides. Reviewing these materials will help you comply and identify potential problems ahead of time.


How much notice is required before the start of excavation or other activity?

In answering this question, be sure to consider:

		Each state's specific notice requirements because failure to comply with those, despite compliance in all other regards, constitutes noncompliance.
		All work, including the beginning of excavation activity, must comply with the applicable One-Call statute.
		Particularly complex, large or unusual jobs may require more notice or additional activities before marking.
		It may be prudent to provide the maximum notice allowable in case some utilities are slow to respond.
		The importance of adhering to the schedule that was set in the One-Call notification.

Whom do I need to notify?

In answering this question, be sure to consider:

		Not all One-Call statutes require participation by all utilities.
		Some One-Call statutes require notifying a One-Call center and each non-participating utility.
		It may be your responsibility to determine what non-participating utilities might be affected by the proposed activity.
		One-Call centers usually will not be able to provide all of this information.

What information do I need to have before calling the One-Call center?

In answering this question, be sure to consider:

		What party must make the notification. Some statutes, for example, require that the subcontractor performing the excavation call rather than the general contractor.
		Information needs specified in the One-Call statute or on the One-Call Web site for the state where you are working.
		You must have the required information before making the notification phone call.
		If the project is particularly large, whether the applicable state One-Call statute has any size restrictions.

Does my proposed activity constitute an emergency excavation?

In answering this question, be sure to consider:

		Emergency excavation provisions in the applicable state One-Call statute.
		Whether different notification provisions apply if your proposed activity does constitute an emergency excavation.
		What your liability will be in case of an accident and whether there are steps you can take to reduce the risk of such liability. Emergency excavations, while authorized by statute, are not always given the same liability safeguards as ordinary excavations.

What do I need to do after I make the required notification(s)?

In answering this question, be sure to consider:

		Whether your state requires excavators to mark the proposed area of excavation.
		Your responsibility for the accuracy of all location information that you provide.
		Whether ongoing communication with the utility is required after it attempts to mark its facilities.
		Whether the applicable statute provides procedures for following up on the notification, maintenance of the notification ticket and other paperwork requirements.

What do I need to do once the facilities are marked?

In answering this question, be sure to consider:

		Whether excavators are responsible for maintaining the marks once made. Some states have specific re-notification procedures and guidelines for faded or destroyed markings.
		Whether the applicable statute provides a mark expiration date, after which re-notification is required even if the marks still are visible.
		It is not advisable to begin excavation before the notification period ends, even if all utilities have responded, unless such a start is expressly allowed by the applicable One-Call statute.
		Even if the notification period has ended, all utilities may not have responded.
		Utilities sometimes make mistakes, so always use an appropriate level of care when engaging in any activity that could interact with underground utilities.

What do I do if the utilities do not respond?

In answering this question, be sure to consider:

		Whether re-notification is required if a utility fails to respond. Many states require re-notification, so check the applicable One-Call statute before proceeding.
		Whether your state provides remedies for delay, complaint procedures or penalties if utilities fail to respond timely.

What do I do if, after the notification period ends, I locate an unmarked or incorrectly marked utility?

In answering this question, be sure to consider:

		The provisions of the applicable One-Call statute - some states specify the procedure to be followed.
		Whether the facility has been damaged. If so, respond as required by the One-Call statute.

What do I do if I damage an underground utility?

In answering this question, be sure to consider:

		The applicable One-Call statute's definition of "damage." Some state statutes define it broadly. Even if you think you have not physically harmed the facility, any contact, however slight, may constitute damage under the statute.
		The importance of knowing damage procedures before excavation begins because most require immediate and specific response. Failure to comply could increase liability for the excavator.
		The importance of always reporting facility damage, even if the applicable One-Call statute provides that you will be responsible for costs of repair or the utility's cost of responding. Some of the most devastating underground utility accidents have been caused by unreported damage, and the cause of damage often can be traced back to the excavator for liability purposes. Repair and response costs are likely to be far less than damages from an accident.

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For more information about the issues covered in this report, please contact Paul Berning in our San Francisco office at 415-369-7229 or at pwberning@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





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