DEPARTMENT OF JUSTICE GENERAL COUNSEL DIVISION

MEMORANDUM

DATE: May 1, 1998

TO: Jack Dent
Public Utility Commission
Chief, Pipeline Safety
550 Capitol Street NE
Salem, OR 97310-1380

FROM: Paul A. Graham, Attorney-in-Charge
Regulated Utility & Business Section

SUBJECT: Sewer Laterals

You have asked whether cities, on the one hand, or homeowners and businesses, on the other, are responsible for locating sewer laterals. You have told me that the question arises because, although the vast majority of cities (and sewer districts) are willing to locate sewer laterals, there are a handful that are refusing. Cities in the latter category claim that it is the responsibility of the homeowners and businesses to locate the laterals because they have legal title to the laterals.

Although the laterals extend from the sewer main, which is usually located under a city street, all the way to homes and businesses, you are concerned with only those parts of laterals that are in the public right-of-way.

I believe the cities are responsible for marking the laterals that are in the public right-of way.

The Legislative Assembly created the Oregon Utility Notification Center (OUNC) in ORS 757, Oregon Laws 1995. Section 1 of that chapter sets forth definitions. Section 1(10) defines “operator” as:

“any person, public utility, municipal corporation, political subdivision of the state or other person with control over underground facilities.”

The Legislative Assembly used “operator” rather than “owner” because an owner may not always have control over underground facilities. It made those in control of underground facilities responsible for marking them, not those who happen to have legal title to those facilities.

You have told me that cities typically require owners of homes and businesses to install laterals to city specifications. Although protesting cities assert that the owner has legal title to the lateral, the owner in fact has no administrative or operational control over the lateral in the public right-of-way. That part of the lateral is controlled and operated by the city. The part of the lateral on private property, on the other hand, is the responsibility of the owner because the owner does have the operational and administrative control of that piece of it.

You are correct in pointing out that, as a practical matter, the owners of homes and businesses will rarely have knowledge of the route of a lateral, the expertise to locate it, or the equipment to perform a locate. On the other hand, the city, as the operator, would likely know where the lateral is, as it controlled the installation, and it would have the expertise and equipment to perform the locate.

It is these practical considerations that led the Legislative Assembly to look to operators, rather that owners, as the persons or entities responsible for locating underground facilities.

You should also focus on section 4 of ORS 757. It requires every operator of an underground facility to subscribe to the OUNC. If the protesting cities are correct, then every person in this state with any kind of service line lateral (not just a sewer lateral) in a public right-of-way would be required to join the OUNC. There is no suggestion anywhere in ORS 757 that the law was designed to deal with those who own homes and businesses served by laterals.

You may wish to share this memorandum with those cities refusing to locate sewer laterals. I will be happy to talk with representatives of those cities, especially their city attorneys.