Ohio Legislative Update

In our last issue, the article titled “Is Ohio’s Call Before You Dig Legislation About to Undergo an Overhaul?” reviewed Ohio’s then proposed change to the “Call Before You Dig” statutes. On December 20, 2012, Governor John Kasich signed House Bill 458 into law. The Bill contains language that changes Ohio’s current damage prevention law (ORC 3781.25-32 and 153.64). The Ohio Utilities Protection Service (OUPS) states that the new legislation, “…is designed to increase public safety by enhancing communications and cooperation amongst stakeholders.”

The changes became effective on March 27, 2013. This means that all excavation damage caused before March 27, 2013 will be governed by the language of the old statutes, and damage caused on or after March 27, 2013, will be governed by the new statute.

The most significant change to these statutes is that the obligations of both the utility and the excavator would be governed by the language set out in the private excavation statute. This means for purposes of litigating who was at fault for damage to an underground utility, there would no longer be separate rules if the excavation was under a contract with a “public authority” (a city, state or township), versus a private excavation, where the general contractor is a private entity. Much of the private excavation statute found at O.R.C. 3781.25 et seq. is left untouched. However, the changes to O.R.C. 3781.28(E) obligate the excavator to provide written notice of the proposed schedule of the excavation’s progress. Then the excavator and utility’s locator establish a mutually agreeable schedule for the locate, replacing the obligations to re-call for markings as the excavation progresses, as set forth under the current statute. Additionally, with certain exceptions, now under ORC 3781.29(D), the excavator must pre-mark the excavation area with white paint, flags, stakes or other approved methods prior to calling in a request for marking.

If you have further questions, please feel free to contact our Utility Collection Practice Group. Also note the full text of the new statutes is available at http://www.oups.org/Portals/OUPS/Legislative/imp_docs/HB_458-FINAL_12202012.pdf. As always, we are here to help you navigate the upcoming changes in this industry.