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H0568......................................................by STATE AFFAIRS UNDERGROUND FACILITIES - Amends existing law to clarify responsibility to mark underground facilities; to increase the compensation payable to an excavator for the delay of a project by the owner of underground facilities; to increase penalties for damage to marked and located underground facilities and for failure to notify the owner of underground facilities prior to excavation; and to authorize a private cause of action for penalties under certain conditions. 02/06 House intro - 1st rdg - to printing 02/07 Rpt prt - to St Aff
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature Second Regular Session - 2002IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 568 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO DAMAGE TO UNDERGROUND FACILITIES; AMENDING SECTION 55-2203, IDAHO 3 CODE, TO CLARIFY RESPONSIBILITY TO MARK UNDERGROUND FACILITIES AND TO 4 INCREASE THE COMPENSATION PAYABLE TO AN EXCAVATOR FOR DELAY OF A PROJECT 5 BY THE OWNER OF UNDERGROUND FACILITIES; AMENDING SECTION 55-2206, IDAHO 6 CODE, TO CLARIFY NOTIFICATION REQUIREMENTS; AMENDING SECTION 55-2208, 7 IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO STRIKE REFERENCE TO 8 AN EMPLOYEE; AND AMENDING SECTION 55-2209, IDAHO CODE, TO INCREASE PENAL- 9 TIES FOR DAMAGE TO MARKED AND LOCATED UNDERGROUND FACILITIES AND FOR FAIL- 10 URE TO NOTIFY THE OWNER OF UNDERGROUND FACILITIES PRIOR TO EXCAVATION AND 11 TO AUTHORIZE A PRIVATE CAUSE OF ACTION FOR PENALTIES UNDER CERTAIN CONDI- 12 TIONS. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 55-2203, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 55-2203. PERMIT COMPLIANCE -- NOTICE OF EXCAVATION -- RESPONSE TO NOTICE 17 -- COMPENSATION FOR FAILURE TO COMPLY -- EXEMPTIONS. (1) Before commencing 18 excavation, the excavator shall: 19 (a) Comply with other applicable law or permit requirements of any public 20 agency issuing permits; 21 (b) Pre-mark on-site the path of excavation with white paint or, as the 22 circumstances require, other reasonable means that will set out clearly 23 the path of excavation. An excavator need not pre-mark as required in this 24 subsection if: 25 (i) The underground facility owner or its agent can determine pre- 26 cisely the location of the proposed excavation by referring to a 27 locate ticket; or 28 (ii) The excavator and underground facility owner have had a meeting 29 prior to the beginning of the proposed excavation at the excavation 30 site for the exchange of information required under this subsection. 31 (c) Provide notice of the scheduled commencement of excavation to all 32owners ofundergroundfacilitiesfacility owners through a one-number 33 locator service. If no one-number locator service is available, notice 34 shall be provided individually to those owners of underground facilities 35 known to have or suspected of having underground facilities within the 36 area of proposed excavation. The notice shall be communicated by the exca- 37 vator to the one-number locator service or, if no one-number locator ser- 38 vice is available, to the owners of underground facilities not less than 39 two (2) business days nor more than ten (10) business days before the 40 scheduled date for commencement of excavation, unless otherwise agreed in 41 writing by the parties. 42 (2) Upon receipt of the notice provided for in this section, theowner of43theunderground facility owner or the owner's agent shallprovide the excava-2 1tor with reasonably accurate information as tolocate and mark its locatable 2 underground facilities by surface-marking the location of the facilities. If 3 there are identified but unlocatable underground facilities, the owner of such 4 facilities or the owner's agent shallprovide the excavatorlocate and mark 5 the underground facilities in accordance with the bestavailableinformation 6 available to the underground facility owner or the owner's agent as to their 7 locations. The owner of the underground facility or the owner's agent provid- 8 ing the information shall respond no later than two (2) business days after 9 the receipt of the notice or before the excavation time set forth in the 10 excavator's notice, at the option of the underground facility owner, unless 11 otherwise agreed in writing by the parties. Excavators shall not excavate 12 until all known facilities have been marked. Once marked by the owner of the 13 underground facility, or the owner's agent, the excavator is responsible for 14 maintaining the markings. Unless otherwise agreed in writing by the parties, 15 maintained markings shall be valid for purposes of the notified excavation for 16 a period of no longer than three (3) consecutive weeks following the date of 17 notification so long as it is reasonably apparent to the excavator that site 18 conditions have not changed so substantially as to invalidate the markings. 19 (a) Excavators shall have the right to receive compensation from the 20 owner of the underground facility for costs incurred if the owner of the 21 underground facility does not locate its facilities in accordance with 22 thissectionchapter. 23 (b) The owner of the underground facility shall have the right to receive 24 compensation for costs incurred in responding to excavation notices given 25 less than two (2) business days prior to the excavation except for notices 26 given for discovered facilities after the owner has identified facilities. 27 (3) Emergency excavations are exempt from the time requirements for noti- 28 fication provided in this section. Emergency excavations shall be performed 29 with reasonable prudence under the circumstances. If the emergency conditions 30 permit, emergency excavations shall not commence until two (2) hours have 31 elapsed since providing notification. 32 (4) If the excavator, while performing the excavation, discovers under- 33 ground facilities (whether active or abandoned) which are not identified, the 34 excavator shall cease excavating in the vicinity of the facility and immedi- 35 ately notify the owner or operator of such facilities, or the one-number 36 locator service. The state, county, city or highway district public road 37 agency shall have the right to receive compensation from the underground 38 facility owner for standby cost (based on standby rates made publicly avail- 39 able) incurred as a result of waiting for the underground facility owner or 40 the owner's agent to arrive at the work site to identifyfacilities discovered41after the owner has identified all knownthe unidentified facilities and pro- 42 vided that if the underground facility owner or the owner's agent supplies 43 reasonably accurate locate information within eight (8) hours of the time that 44 the excavatorencounters the facilitynotifies the underground facility owner 45 of facilities not previously located, the excavator's compensation for delay 46 of the excavation project shall be limited to actual costs oreighttwo thou- 47 sand five hundred dollars ($82,500), whichever is less. 48 SECTION 2. That Section 55-2206, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 55-2206. DAMAGE TO UNDERGROUND FACILITIES -- DUTIES OF EXCAVATOR AND 51 OWNER. (1) An excavator who, in the course of excavation, contacts or damages 52 an underground facility shall notify theutility owning or operating such53facilityunderground facility owner and the one-number locator service. If the 3 1 damage causes an emergency condition, the excavator causing the damage shall 2 also alert the appropriate local public safety agencies and take all appropri- 3 ate steps to ensure the public safety. No damaged underground facility may be 4 buried until it is repaired or relocated. 5 (2) The owner of the underground facilities damaged shall arrange for 6 repairs or relocation as soon as is practical or may permit the excavator to 7 do necessary repairs or relocation at a mutually acceptable price. 8 SECTION 3. That Section 55-2208, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 55-2208. EXCAVATIONS EXEMPT FROM NOTICE REQUIREMENT. Unless facts exist 11 which would reasonably cause an excavator to believe that an underground 12 facility exists within the depth of the intended excavation, the following 13 excavations shall not require notice of the excavation pursuant to section 14 55-2203(1)(bc), Idaho Code: 15 (1) An excavation of less than fifteen (15) inches in vertical depth out- 16 side the boundaries of an underground facility easement of public record on 17 private property and if the excavation is being performed by the personor an18employee of the personwho owns or occupies the property on which the excava- 19 tion is being performed. 20 (2) The tilling of soil to a depth of less than fifteen (15) inches for 21 agricultural practices. 22 (3) The extraction of minerals within recorded mining claims or excava- 23 tion within material sites legally located and of record, unless such excava- 24 tion occurs within the boundaries of an underground facility easement. 25 (4) Normal maintenance of roads, streets and highways, including cleaning 26 of roadside drainage ditches and clear zones, to a depth of fifteen (15) 27 inches below the grade established during the design of the last construction 28 of which underground facility owners were notified and which excavation will 29 not reduce the authorized depth of cover of an underground facility. 30 (5) Replacement of highway guardrail posts, sign posts, delineator 31 posts, culverts, and traffic control device supports in the same approximate 32 location and depth of the replaced item within public highway rights-of-way. 33 (6) Normal maintenance of railroad rights-of-way, except where such 34 rights-of-way intersect or cross public roads, streets, highways, or rights- 35 of-way adjacent thereto, or recorded underground facility easements. 36 SECTION 4. That Section 55-2209, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 55-2209. VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES 39 UNIMPAIRED. (1) Any person who violates any provision of this chapter, other 40 than the failure to provide notice pursuant to section 55-2203(1)(c), Idaho 41 Code, and which violation results in damage to underground facilities, is sub- 42 ject to a civil penalty of not more thanonetwo thousand five hundred dollars 43 ($1,02,500) for each violation.All penalties recovered in such actions shall44be deposited in the state general account.45 (2) If an underground facility is damaged as a result of an excavator's 46 failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code, 47 unless otherwise exempt, the excavator shall be liable for a civil penalty in 48 an amount up to five thousand dollars ($5,000). If the court finds, by a pre- 49 ponderance of the evidence, that the excavator has, on more than one (1) occa- 50 sion during any consecutive period of twelve (12) months, failed to provide 51 the notice required pursuant to section 55-2203(1)(c), Idaho Code, and that 4 1 such failure has been a proximate cause of damage to an underground facility, 2 the court may increase the civil penalty in an amount up to forty thousand 3 dollars ($40,000). 4 (3) (a) An action to recover a civil penalty under this section may be 5 brought by a prosecuting attorney or the attorney general. If the prose- 6 cuting attorney or the attorney general does not file an action for such 7 civil penalty within sixty (60) days from the date of a request for such 8 action by the owner of an underground facility, the underground facility 9 owner may file such action. Venue for such an action shall be proper in 10 the judicial district for the county in which the damaged underground 11 facility is located or the county in which the excavator resides or main- 12 tains a principal place of business in this state. The prevailing party in 13 such action shall be entitled to recover its costs and reasonable 14 attorney's fees incurred in such action. 15 (b) The penalties provided in this section are in addition to any other 16 remedy at law or equity available to an excavator or to the owner or oper- 17 ator of a damaged underground facility. 18 (c) The court shall consider, as a mitigating factor in determining the 19 amount of civil penalty to be imposed, evidence showing by a preponderance 20 of the evidence that the violation occurred solely as a proximate result 21 of the excavator or underground facility owner's reasonable response to an 22 emergency beyond the control of the offending party. 23 (d) Any civil penalty imposed pursuant to this section shall be deposited 24 in the state general fund. Attorney's fees shall be paid solely to the 25 party successfully bringing the action. 26 (4) Any excavator who willfully or maliciously damages anfield-marked27 underground facility shall be liable for treblethe costs incurred in repair-28ing or relocating the facilitydamages. In those cases in which an excavator 29 fails to notify the one-number locator service or underground facility owner 30 pursuant to section 55-2203, Idaho Code, and the excavator damages an under- 31 ground facility, the damage caused by the excavator shall be deemed to be the 32 result of willful and malicious conduct by the excavator. 33 (35) Unless expressly provided herein, nothing in this chapter elimi- 34 nates, alters or otherwise impairs common law, statutory or other preexisting 35 rights and duties of persons affected by the provisions of this chapter; nor 36 does anything in this chapter, unless expressly so provided, eliminate, alter 37 or otherwise impair other remedies, state or federal, including those at com- 38 mon law, of an underground facility owner whose facility is damaged; nor do 39 the provisions of this chapter affect any civil remedies for personal injury 40 or property damage except as expressly provided for herein.
STATEMENT OF PURPOSE RS 11874C2 The legislation amends the Underground Facilities Damage Prevention law, enacted by the legislature in 1990. Although current law requires that excavators notify the owners of underground facilities prior to commencing the excavation, substantial damage to essential underground facilities continues to be caused by excavators who repeatedly fail to provide notice of the intended excavation. These actions not only cause substantial damage to the facilities, but also threaten the public health and safety of Idaho's citizens from interruption in essential services caused by such damage. To accomplish that purpose, the legislation increases the potential maximum civil penalties that may be imposed on excavators, and particularly on those excavators who repeatedly cause damage to underground facilities. The legislation also makes technical changes in current law to clarify marking requirements for the areas of proposed excavation by the excavator and of existing underground facilities by the owners of the facilities. FISCAL IMPACT There is no fiscal impact on state or local funds CONTACTS: Rep. George Eskridge Roy Eiguren 388-1313 Neil Colwell 343-3821 Elizabeth Criner 385-8692 Mike Huntingdon 377-6059 Schelly Jensen 503-629-2338 STATEMENT OF PURPOSE/FISCAL NOTE H 568