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Call Before You Dig– Excavator Liability For Damaging Underground Utilities in WA

Posted Wednesday, June 15, 2016 by Christopher L. Thayer

Digging

Washington has a comprehensive statutory scheme relating to homeowner and contractor responsibilities regarding excavation and underground utilities. The Underground Utility Prevention Act (the “UUPA”), which was significantly amended and updated in 2013, is intended to protect public health and safety and prevent disruption of vital utility services through a comprehensive damage prevention program. Statewide, homeowners and contractors can call “811” to schedule a “utility locate” prior to commencing any excavation. What many contractors and homeowners are likely unaware of, however, are the consequences for violating UUPA, including possible treble damages and claims for attorneys’ fees.

The “call before you dig” law requires you to call in for a “utility locate” any time you are digging a hole greater than 12 inches deep. If you fail to request a “utility locate” and hit a gas or hazardous liquid line (e.g., sewer line), an excavator is liable for a civil penalty of up to $10,000 - per violation:

19.122.055 Failure to notify one-number locator service—Civil penalty, if damages.

(1)(a) Any excavator who fails to notify a one-number locator service and causes damage to a hazardous liquid or gas underground facility is subject to a civil penalty of not more than ten thousand dollars for each violation.

If you “willfully or maliciously” damage an underground utility, you can be liable for treble damages and attorneys’ fees:

19.122.070 Civil penalties—Treble damages—Existing remedies not affected.

(1) Any person who violates any provision of this chapter not amounting to a violation of RCW 19.122.055 is subject to a civil penalty of not more than one thousand dollars for an initial violation, and not more than five thousand dollars for each subsequent violation within a three-year period. All penalties recovered in such actions must be deposited in the damage prevention account created in RCW 19.122.160.

(2) Any excavator who willfully or maliciously damages a marked underground facility is liable for treble the costs incurred in repairing or relocating the facility. In those cases in which an excavator fails to notify known facility operators or a one-number locator service, any damage to the underground facility is deemed willful and malicious and is subject to treble damages for costs incurred in repairing or relocating the facility.

There are a few additional “traps” in UUPA as well. First, a utility locate request (or “ticket” as often referred to in the trades) are only good for 45 days. Thus, if you obtain a utility locate but dig and hit an underground utility outside of that 45 day window – you can be potentially held liable under RCW 19.122.070. Second, utility locate companies are only required to locate underground utilities with “reasonable accuracy”, which means:

(23) “Reasonable accuracy” means location within twenty-four inches of the outside dimensions of both sides of an underground facility.

A 24-inch tolerance leaves a lot of room for potential problems. When digging near identified underground utilities, excavators are cautioned to hand shovel the area of excavation until the underground utility has been visually located. For more information in Washington, you can go to: www.washington811.com. All these provisions are reminders to take extra care when conducting any excavation on your property. Utility locate services are free and the potential cost of damaging a utility line makes it clear that taking the time to have the utilities located before you dig is essential.

Photo credit: Christine, used under the Creative Commons license

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