2023 New York Laws › PBS - Public Service › Article 6 - Provisions Affecting Two or More Kinds of the Public Service and the Persons and Corporations Furnishing Such Service › 119-B - Protection of Underground Facilities.

§ 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.