HON. RALPH I. GREENHOUSE County Attorney, Onondaga County
This is in response to the letter of J.C. Engelbrecht, Deputy County Attorney, requesting an opinion of the Attorney General as to whether under Industrial Code Rule No. 53 "Construction, Excavation and Demolition Operations at or Near Underground Facilities" (12 NYCRR Part 53), an excavator, who has given timely notice of his commencement date, may proceed with work on the designated commencement date if he has not received notification from all notified operators to the effect (1) that they have no underground facility located in or within 15 feet of the proposed work area, or (2) that any underground facility they have located in or within 15 feet of the proposed work area has been staked, marked or otherwise designated in accordance with Rule 53, or (3) that they cannot complete the staking, marking or other designation prior to the completion date but will do so within two working days after the stated commencement date.
Industrial Code Rule No. 53, promulgated pursuant to authority of section 28-a of the Labor Law, provides:
"(a) The excavator may proceed with his excavation or demolition work on the stated date of commencement if, prior thereto, he has received notification from each operator on the master list that:
"(1) Such operator has no underground facility in or within 15 feet of the proposed work area; or
"(2) That any underground facility located in or within 15 feet of the proposed work area has been staked, marked or otherwise designated in accordance with the provisions of Subpart 53-4 of this Part (rule).
"(b) The excavator shall not commence the proposed excavation or demolition work on the stated commencement date if he has been notified by an operator that the staking, marking or other designation of an underground facility located in or within 15 feet of the proposed work area will not be completed on the stated commencement date. In every such case, the operator shall notify the excavator of a prompt and practicable date for the completion of the staking, marking or other designation, which shall be within two working days after the stated commencement date." (12 NYCRR 53-3.5.)
Industrial Code Rule No. 53 also specifies the operator's obligation after receiving notice from the excavator, in part, as follows:
"(a) Prior to the date and time of the commencement of the proposed excavation or demolition work as stated in the recorded notice, the operator shall notify the excavator that either:
"(1) The operator has no underground facility in or within 15 feet of the proposed work area; or
"(2) Every underground facility belonging to him which is located in or within 15 feet of the proposed work area has been staked, marked or otherwise designated in accordance with the provisions of this Subpart.
"(b) Where an operator cannot complete the staking, marking or other designation of an underground facility prior to the stated commencement date and time of the proposed excavation or demolition work, the operator shall promptly report such fact to the excavator and shall inform the excavator of a prompt and practicable completion date which in no case shall be more than two working days after the excavator's stated commencement date." (12 NYCRR 53-4.5. )
Enforcement provisions for failure to comply with the requirements of Rule 53, provide in part as follows:
"(a) The enforcement of this Part (rule), as promulgated pursuant to section 28-a of the Labor Law, is not by the Industrial Commissioner but is pursuant to the provisions of section 28-b of the Labor Law." (12 NYCRR 53-1.2.)
Section 28-b of the Labor Law provides that any violation thereof is a violation of Article 36 of the General Business Law. Section 764, contained in Article 36 of the General Business Law, delineates the penalties that a violator may be subject to and further provides that such violations are to be prosecuted by the New York State Attorney General in the Supreme Court.
Chapter 818 of the Laws of 1974 amended the General Business Law by adding a new article, Article 36, referred to hereinabove, and also amended the Labor Law by adding two new sections, section 28-a and section 28-b, also referred to hereinabove, to provide notice requirements for construction and excavation near underground facilities. The State Legislature in section 1 of said chapter expressed its intent, as follows:
"Section 1. The legislature hereby finds and declares that there is a need to protect underground facilities from destruction or damage, in order to prevent death or injury to workers and the public, damage to private and public property or loss of essential services to the general public, which need has not been met adequately by existing law. The legislature accordingly further finds it necessary to provide for appropriate notices to operators of underground facilities by persons proposing to excavate near such facilities or to demolish structures near to or containing such facilities; to provide for appropriate notices to operators when underground facilities are damaged; to provide for and encourage the establishment of `one call' notification systems wherever feasible; to provide for certain other duties to safeguard life and property; and to prescribe penalties and remedies, including injunctive remedies, for violations of such duties."
From all of the foregoing, we conclude that in light of the expressed legislative intent and the specific language of Industrial Code Rule No. 53, an excavator, who has given timely notice of his commencement date, may not proceed with work on the designated commencement date if he has not received notification from all notified operators to the effect (1) that they have no underground facility located in or within 15 feet of the proposed work area, or (2) that any underground facility they have located in or within 15 feet of the proposed work area has been staked, marked or otherwise designated in accordance with Rule 53, or (3) that they cannot complete the staking, marking or other designation prior to the completion date but will do so within two working days after the stated commencement date.