Request By:
Amy L. Brooks
Counsel for East Logan Water District
Opinion
Opinion By: Daniel Cameron, ATTORNEY GENERAL; Carmine G. Iaccarino, Jeremy J. Sylvester, Assistant Attorneys General
Opinion of the Attorney General
The Underground Facility Damage Prevention Act of 1994 is intended to prevent damage to underground facilities, including cable, gas, and water lines, to promote public and workplace safety, and to protect consumer services. KRS 367.4901. In essence, the Act requires that before a person starts digging he notify the owners of any underground facilities of the intended work. KRS 367.4911(1). After being notified, the owners must mark the location their underground facilities. To avoid damage to those facilities, excavators must hand dig or use other non-intrusive means when excavating near those marked facilities. KRS 367.4911(10). To facilitate this process and communication between the owner of the facilities and the excavator who intends to dig near or around those facilities, a person can call a company like 811 before they dig. 1 See KRS 367.4911(1)(a) ("Contacting the applicable protection notification centers shall satisfy this requirement."). But sometimes, a person need not call 811 before they dig. 2There are exceptions to the Act's requirements. See KRS 367.4915.
The East Logan Water District ("District"), a water district created by the Logan County Fiscal Court under KRS Chapter 74, asks whether some of its excavation activities are exempt under KRS 367.4915(1). Under that provision, the requirements of KRS 367.4905 to 367.4917 do not apply to "[e]xcavation by an operator on its own easement except where that easement is crossed by another operator's facilities." KRS 367.4915(1).
In determining whether this statutory exception relieves the District of its obligations under the Act, facts matter. Here, the District explains that its water lines generally lie in non-exclusive easements that are 20 feet wide. Generally, those easements center on the District's buried water lines; that is, the easement extends 10 feet on either side of the water line. When the water line is within 10 feet of a roadway, however, the easement extends 20 feet from the roadway. In some cases a local telephone cooperative has buried fiber optic cables close to the District's water lines. Although the cables generally run parallel with the water lines, in some locations, the wire has been laid over the top of the District's water lines and, in other locations, the cable crosses over or under the water line from one side of the water line to the other. Of course, both the District's water lines, and the telephone cooperative's fiber optic cables, are underground facilities under the Act. KRS 367.4903(1).
Whether the exemption in KRS 367.4915(1) applies to the District matters because when excavating "within the approximate location" of underground facilities, the District must "hand-dig or use nonintrusive means to avoid damage to the underground facility." KRS 367.4911(10). According to the District, it is expensive to use nonintrusive excavation when repairing its water lines crossed by fiber optic cable. Regardless of those costs, however, the express terms of KRS 367.4915(1) apply only when an operator excavates on "its own easement," and then only when no other operator's facilities cross the easement. This makes sense. To serve the purposes and objectives of the Act, see generally KRS 367.4901, its requirements are necessary when excavating near and around other underground facilities.
Here, the District admits that it does not have an exclusive easement. Its water lines are run in areas in which other utility facilities--here, fiber optic cables--are also run. The fiber optic lines may be buried on top of the District's water lines, or run roughly parallel with those lines, or sometimes run back and forth over the top or underneath those lines. In those instances, KRS 367.4915(1) has no application, because the District's "easement is crossed by another operator's facilities." "[W]e must afford the statute's words their common, ordinary, and everyday 'meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.'"
Blackwell v. Blackwell , 372 S.W.3d 874, 877 (Ky. App. 2012) (quoting
Bailey v. Reeves , 662 S.W.2d 832, 834 (Ky.1984)). By common and ordinary understanding, "cross" means to move or extend from one side to another. Cross , The American Heritage Dictionary (2nd College Ed. 1985). Here, the District explains that the fiber optic cables "move or extend from one side to another." Thus, the exemption does not apply. KRS 367.4915(1).
The General Assembly intended that the requirements of the Act would help prevent damage to underground facilities and associated interruption of consumer services--including the delivery of water and internet. For these reasons, it is the Attorney General's opinion that, based on the facts set forth above, the District must comply with the Act's requirements and that KRS 367.4915(1) does not apply to exempt the District's excavating activities from those requirements.
Footnotes
Footnotes
1 811 is a nonprofit organization established to provide a communication link between excavators and operators of underground utilities.
2 The failure to comply with the statutory requirements can lead to costly claims, especially in the context of fiber optic cables being severed. See, e.g., Level 3 Commc'ns, LLC v. TNT Constr., Inc. , 220 F. Supp. 3d 812 (W.D. Ky. 2016).