2002 Legislation
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HOUSE BILL NO. 568 – Underground facilities/damage/pnlty

HOUSE BILL NO. 568

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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

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                                                        
                                                                        
                              IN 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
 32        owners  of  underground  facilities  facility  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, the owner of
 43    the  underground facility owner or the owner's agent shall provide the excava-
                                                                        
                                           2
                                                                        
  1    tor with reasonably accurate information as to locate 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 shall provide the excavator  locate  and  mark
  5    the  underground  facilities in accordance with the best available information
  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        this section chapter.
 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 identify facilities discovered
 41    after the owner has identified all known the 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 excavator encounters the facility notifies 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 or eight two  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 the  utility  owning  or  operating  such
 53    facility underground 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 person or an
 18    employee of the person who 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 than one two thousand five hundred dollars
 43    ($1,02,500) for each violation. All penalties recovered in such actions  shall
 44    be 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  an  field-marked
 27    underground  facility shall be liable for treble the costs incurred in repair-
 28    ing or relocating the facility damages. 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 / Fiscal Impact


                      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