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H0678aa....................................................by STATE AFFAIRS
UNDERGROUND FACILITIES - Amends existing law to clarify responsibility to
mark underground facilities; to clarify notification requirements; to
revise penalties; to provide for a warning for damage to marked and located
underground facilities and for failure to notify the owner of underground
facilities prior to excavation; to authorize a private cause of action for
penalties under certain conditions; and to allow for treble damages in
certain instances.
02/25 House intro - 1st rdg - to printing
02/26 Rpt prt - to St Aff
02/27 Rpt out - rec d/p - to 2nd rdg
02/28 To Gen Ord
Rpt out amen - to engros
03/01 Rpt engros - 1st rdg - to 2nd rdg as amen
03/04 2nd rdg - to 3rd rdg as amen
03/05 3rd rdg as amen - PASSED - 63-4-3
AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Block, Boe,
Bolz, Bradford, Bruneel, Callister, Campbell, Clark, Collins, Cuddy,
Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20),
Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Hornbeck, Jaquet,
Jones, Kellogg(Duncan), Kunz, Langford, Mader, Martinez, McKague,
Meyer, Montgomery, Mortensen, Moyle, Pearce, Pomeroy, Raybould,
Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd,
Smith(33), Smith(23), Smylie, Stevenson, Stone, Tilman, Trail,
Wheeler, Wood, Young, Mr. Speaker
NAYS -- Higgins, Kendell, Loertscher, Pischner
Absent and excused -- Aikele, Crow, Lake
Floor Sponsor - Eskridge
Title apvd - to Senate
03/06 Senate intro - 1st rdg - to St Aff
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/15 3rd rdg - PASSED - 34-1-0
AYES -- Andreason, Boatright, Branch Brandt, Bunderson, Burtenshaw,
Cameron, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde,
Hill, Ingram, Ipsen, Keough, King-Barrutia, Little, Lodge, Marley,
Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner,
Stennett, Thorne, Wheeler, Williams
NAYS -- Hawkins
Absent and excused -- None
Floor Sponsor - Sorensen
Title apvd - to House
03/15 To enrol
Rpt enrol - Sp signed - Pres signed
03/18 To Governor
03/27 Governor signed
Session Law Chapter 351
Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 678
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; AMENDING
4 SECTION 55-2206, IDAHO CODE, TO CLARIFY NOTIFICATION REQUIREMENTS; AMEND-
5 ING SECTION 55-2208, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND
6 TO STRIKE REFERENCE TO AN EMPLOYEE; AND AMENDING SECTION 55-2209, IDAHO
7 CODE, TO REVISE PENALTIES AND PROVIDE FOR A WARNING FOR DAMAGE TO MARKED
8 AND LOCATED UNDERGROUND FACILITIES AND FOR FAILURE TO NOTIFY THE OWNER OF
9 UNDERGROUND FACILITIES PRIOR TO EXCAVATION AND TO AUTHORIZE A PRIVATE
10 CAUSE OF ACTION FOR PENALTIES UNDER CERTAIN CONDITIONS AND TO ALLOW FOR
11 TREBLE DAMAGES IN CERTAIN INSTANCES.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 55-2203, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 55-2203. PERMIT COMPLIANCE -- NOTICE OF EXCAVATION -- RESPONSE TO NOTICE
16 -- COMPENSATION FOR FAILURE TO COMPLY -- EXEMPTIONS. (1) Before commencing
17 excavation, the excavator shall:
18 (a) Comply with other applicable law or permit requirements of any public
19 agency issuing permits;
20 (b) Pre-mark on-site the path of excavation with white paint or, as the
21 circumstances require, other reasonable means that will set out clearly
22 the path of excavation. An excavator need not pre-mark as required in this
23 subsection if:
24 (i) The underground facility owner or its agent can determine the
25 location of the proposed excavation by street address or lot and
26 block by referring to a locate ticket; or
27 (ii) The excavator and underground facility owner have had a meeting
28 prior to the beginning of the proposed excavation at the excavation
29 site for the exchange of information required under this subsection.
30 (c) Provide notice of the scheduled commencement of excavation to all
31 owners of underground facilities facility owners through a one-number
32 locator service. If no one-number locator service is available, notice
33 shall be provided individually to those owners of underground facilities
34 known to have or suspected of having underground facilities within the
35 area of proposed excavation. The notice shall be communicated by the exca-
36 vator to the one-number locator service or, if no one-number locator ser-
37 vice is available, to the owners of underground facilities not less than
38 two (2) business days nor more than ten (10) business days before the
39 scheduled date for commencement of excavation, unless otherwise agreed in
40 writing by the parties.
41 (2) Upon receipt of the notice provided for in this section, the owner of
42 the underground facility owner or the owner's agent shall provide the excava-
43 tor with reasonably accurate information as to locate and mark its locatable
2
1 underground facilities by surface-marking the location of the facilities. If
2 there are identified but unlocatable underground facilities, the owner of such
3 facilities or the owner's agent shall provide the excavator locate and mark
4 the underground facilities in accordance with the best available information
5 as to their locations available to the owner of the underground facilities and
6 with reasonable accuracy as defined in section 55-2202(12), Idaho Code. The
7 owner of the underground facility or the owner's agent providing the informa-
8 tion shall respond no later than two (2) business days after the receipt of
9 the notice or before the excavation time set forth in the excavator's notice,
10 at the option of the underground facility owner, unless otherwise agreed in
11 writing by the parties. Excavators shall not excavate until all known facili-
12 ties have been marked. Once marked by the owner of the underground facility,
13 or the owner's agent, the excavator is responsible for maintaining the mark-
14 ings. Unless otherwise agreed in writing by the parties, maintained markings
15 shall be valid for purposes of the notified excavation for a period of no
16 longer than three (3) consecutive weeks following the date of notification so
17 long as it is reasonably apparent to the excavator that site conditions have
18 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.
29 (4) If the excavator, while performing the excavation, discovers under-
30 ground facilities (whether active or abandoned) which are not identified, the
31 excavator shall cease excavating in the vicinity of the facility and immedi-
32 ately notify the owner or operator of such facilities, or the one-number
33 locator service. The state, county, city or highway district public road
34 agency excavator shall have the right to receive compensation from the under-
35 ground facility owner for standby cost (based on standby rates made publicly
36 available) incurred as a result of waiting for the underground facility owner
37 or the owner's agent to arrive at the work site to identify facilities discov-
38 ered after the owner has identified all known the unidentified facilities and
39 provided that if the underground facility owner or the owner's agent supplies
40 reasonably accurate locate information within eight (8) hours of the time that
41 the excavator encounters the facility notifies the underground facility owner
42 of facilities not previously located, the excavator's compensation for delay
43 of the excavation project shall be limited to actual costs or eight hundred
44 one thousand dollars ($81,000), whichever is less.
45 SECTION 2. That Section 55-2206, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 55-2206. DAMAGE TO UNDERGROUND FACILITIES -- DUTIES OF EXCAVATOR AND
48 OWNER. (1) An excavator who, in the course of excavation, contacts or damages
49 an underground facility shall notify the utility owning or operating such
50 facility underground facility owner and the one-number locator service. If the
51 damage causes an emergency condition, the excavator causing the damage shall
52 also alert the appropriate local public safety agencies and take all appropri-
53 ate steps to ensure the public safety. No damaged underground facility may be
3
1 buried until it is repaired or relocated.
2 (2) The owner of the underground facilities damaged shall arrange for
3 repairs or relocation as soon as is practical or may permit the excavator to
4 do necessary repairs or relocation at a mutually acceptable price.
5 SECTION 3. That Section 55-2208, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 55-2208. EXCAVATIONS EXEMPT FROM NOTICE REQUIREMENT. Unless facts exist
8 which would reasonably cause an excavator to believe that an underground
9 facility exists within the depth of the intended excavation, the following
10 excavations shall not require notice of the excavation pursuant to section
11 55-2203(1)(bc), Idaho Code:
12 (1) An excavation of less than fifteen (15) inches in vertical depth out-
13 side the boundaries of an underground facility easement of public record on
14 private property. and if the excavation is being performed by the person or an
15 employee of the person who owns or occupies the property on which the excava-
16 tion is being performed.
17 (2) The tilling of soil to a depth of less than fifteen (15) inches for
18 agricultural practices.
19 (3) The extraction of minerals within recorded mining claims or excava-
20 tion within material sites legally located and of record, unless such excava-
21 tion occurs within the boundaries of an underground facility easement.
22 (4) Normal maintenance of roads, streets and highways, including cleaning
23 of roadside drainage ditches and clear zones, to a depth of fifteen (15)
24 inches below the grade established during the design of the last construction
25 of which underground facility owners were notified and which excavation will
26 not reduce the authorized depth of cover of an underground facility.
27 (5) Replacement of highway guardrail posts, sign posts, delineator
28 posts, culverts, and traffic control device supports in the same approximate
29 location and depth of the replaced item within public highway rights-of-way.
30 (6) Normal maintenance of railroad rights-of-way, except where such
31 rights-of-way intersect or cross public roads, streets, highways, or rights-
32 of-way adjacent thereto, or recorded underground facility easements.
33 SECTION 4. That Section 55-2209, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 55-2209. VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES
36 UNIMPAIRED. (1) Any person who violates any provision of this chapter, other
37 than the failure to provide notice pursuant to section 55-2203(1)(c), Idaho
38 Code, and which violation results in damage to underground facilities, is sub-
39 ject to a civil penalty of not more than one thousand dollars ($1,000) for
40 each violation. All penalties recovered in such actions shall be deposited in
41 the state general account.
42 (2) If an underground facility is damaged as a result of an excavator's
43 failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code,
44 unless otherwise exempt, the excavator shall receive a warning from the under-
45 ground facility owner and shall be liable for actual costs of damages caused
46 by the excavator if it is the excavator's first failure to provide the notice
47 required pursuant to section 55-2203(1)(c), Idaho Code, during any consecutive
48 period of twelve (12) months.
49 (a) If the court finds, by a preponderance of the evidence, that the
50 excavator has, on more than one (1) occasion during any consecutive period
51 of twelve (12) months, failed to provide the notice required pursuant to
4
1 section 55-2203(1)(c), Idaho Code, and that such failure has been a proxi-
2 mate cause of damage to an underground facility, the court may increase
3 the civil penalty in an amount up to five thousand dollars ($5,000).
4 (b) If the court finds, by a preponderance of the evidence, that the
5 excavator has, on three (3) or more occasions during any consecutive
6 period of twelve (12) months, failed to provide the notice required pursu-
7 ant to section 55-2203(1)(c), Idaho Code, and that such failure has been a
8 proximate cause of damage to an underground facility, the court may
9 increase the civil penalty in an amount up to ten thousand dollars
10 ($10,000) for the third occurrence taking place during the twelve (12)
11 month period.
12 (3) (a) An action to recover a civil penalty under this section may be
13 brought by a prosecuting attorney. If the prosecuting attorney does not
14 file an action for such civil penalty within sixty (60) days from the date
15 of a request for such action by the owner of an underground facility, the
16 underground facility owner may file such action. Venue for such an action
17 shall be proper in the judicial district for the county in which the dam-
18 aged underground facility is located or the county in which the excavator
19 resides or maintains a principal place of business in this state. The pre-
20 vailing party in such action shall be entitled to recover its costs and
21 reasonable attorney's fees incurred in such action.
22 (b) The penalties provided in this section are in addition to any other
23 remedy at law or equity available to an excavator or to the owner or oper-
24 ator of a damaged underground facility.
25 (c) The court shall consider, as a mitigating factor in determining the
26 amount of civil penalty to be imposed, evidence showing by a preponderance
27 of the evidence that the violation occurred solely as a proximate result
28 of the excavator or underground facility owner's reasonable response to an
29 emergency beyond the control of the offending party.
30 (d) Any civil penalty imposed pursuant to this section shall be deposited
31 in the state general fund. Attorney's fees shall be paid solely to the
32 party successfully bringing the action.
33 (4) Any excavator who willfully or maliciously damages an field-marked
34 underground facility shall on a third or subsequent violation pursuant to sub-
35 section (2) of this section may be liable for treble the costs incurred in
36 repairing or relocating the facility.
37 (35) Unless expressly provided herein, nothing in this chapter elimi-
38 nates, alters or otherwise impairs common law, statutory or other preexisting
39 rights and duties of persons affected by the provisions of this chapter; nor
40 does anything in this chapter, unless expressly so provided, eliminate, alter
41 or otherwise impair other remedies, state or federal, including those at com-
42 mon law, of an underground facility owner whose facility is damaged; nor do
43 the provisions of this chapter affect any civil remedies for personal injury
44 or property damage except as expressly provided for herein.
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
Moved by Eskridge
Seconded by Ellsworth
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENT TO H.B. NO. 678
1 AMENDMENTS TO SECTION 4
2 On page 3 of the printed bill, in line 44, following "receive a" insert:
3 "written"; and in line 45, delete "damages caused" and in line 46, delete "by
4 the excavator" and insert: "repairing the facility".
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 678, As Amended
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; AMENDING
4 SECTION 55-2206, IDAHO CODE, TO CLARIFY NOTIFICATION REQUIREMENTS; AMEND-
5 ING SECTION 55-2208, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND
6 TO STRIKE REFERENCE TO AN EMPLOYEE; AND AMENDING SECTION 55-2209, IDAHO
7 CODE, TO REVISE PENALTIES AND PROVIDE FOR A WARNING FOR DAMAGE TO MARKED
8 AND LOCATED UNDERGROUND FACILITIES AND FOR FAILURE TO NOTIFY THE OWNER OF
9 UNDERGROUND FACILITIES PRIOR TO EXCAVATION AND TO AUTHORIZE A PRIVATE
10 CAUSE OF ACTION FOR PENALTIES UNDER CERTAIN CONDITIONS AND TO ALLOW FOR
11 TREBLE DAMAGES IN CERTAIN INSTANCES.
12 Be It Enacted by the Legislature of the State of Idaho:
13 SECTION 1. That Section 55-2203, Idaho Code, be, and the same is hereby
14 amended to read as follows:
15 55-2203. PERMIT COMPLIANCE -- NOTICE OF EXCAVATION -- RESPONSE TO NOTICE
16 -- COMPENSATION FOR FAILURE TO COMPLY -- EXEMPTIONS. (1) Before commencing
17 excavation, the excavator shall:
18 (a) Comply with other applicable law or permit requirements of any public
19 agency issuing permits;
20 (b) Pre-mark on-site the path of excavation with white paint or, as the
21 circumstances require, other reasonable means that will set out clearly
22 the path of excavation. An excavator need not pre-mark as required in this
23 subsection if:
24 (i) The underground facility owner or its agent can determine the
25 location of the proposed excavation by street address or lot and
26 block by referring to a locate ticket; or
27 (ii) The excavator and underground facility owner have had a meeting
28 prior to the beginning of the proposed excavation at the excavation
29 site for the exchange of information required under this subsection.
30 (c) Provide notice of the scheduled commencement of excavation to all
31 owners of underground facilities facility owners through a one-number
32 locator service. If no one-number locator service is available, notice
33 shall be provided individually to those owners of underground facilities
34 known to have or suspected of having underground facilities within the
35 area of proposed excavation. The notice shall be communicated by the exca-
36 vator to the one-number locator service or, if no one-number locator ser-
37 vice is available, to the owners of underground facilities not less than
38 two (2) business days nor more than ten (10) business days before the
39 scheduled date for commencement of excavation, unless otherwise agreed in
40 writing by the parties.
41 (2) Upon receipt of the notice provided for in this section, the owner of
42 the underground facility owner or the owner's agent shall provide the excava-
43 tor with reasonably accurate information as to locate and mark its locatable
2
1 underground facilities by surface-marking the location of the facilities. If
2 there are identified but unlocatable underground facilities, the owner of such
3 facilities or the owner's agent shall provide the excavator locate and mark
4 the underground facilities in accordance with the best available information
5 as to their locations available to the owner of the underground facilities and
6 with reasonable accuracy as defined in section 55-2202(12), Idaho Code. The
7 owner of the underground facility or the owner's agent providing the informa-
8 tion shall respond no later than two (2) business days after the receipt of
9 the notice or before the excavation time set forth in the excavator's notice,
10 at the option of the underground facility owner, unless otherwise agreed in
11 writing by the parties. Excavators shall not excavate until all known facili-
12 ties have been marked. Once marked by the owner of the underground facility,
13 or the owner's agent, the excavator is responsible for maintaining the mark-
14 ings. Unless otherwise agreed in writing by the parties, maintained markings
15 shall be valid for purposes of the notified excavation for a period of no
16 longer than three (3) consecutive weeks following the date of notification so
17 long as it is reasonably apparent to the excavator that site conditions have
18 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.
29 (4) If the excavator, while performing the excavation, discovers under-
30 ground facilities (whether active or abandoned) which are not identified, the
31 excavator shall cease excavating in the vicinity of the facility and immedi-
32 ately notify the owner or operator of such facilities, or the one-number
33 locator service. The state, county, city or highway district public road
34 agency excavator shall have the right to receive compensation from the under-
35 ground facility owner for standby cost (based on standby rates made publicly
36 available) incurred as a result of waiting for the underground facility owner
37 or the owner's agent to arrive at the work site to identify facilities discov-
38 ered after the owner has identified all known the unidentified facilities and
39 provided that if the underground facility owner or the owner's agent supplies
40 reasonably accurate locate information within eight (8) hours of the time that
41 the excavator encounters the facility notifies the underground facility owner
42 of facilities not previously located, the excavator's compensation for delay
43 of the excavation project shall be limited to actual costs or eight hundred
44 one thousand dollars ($81,000), whichever is less.
45 SECTION 2. That Section 55-2206, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 55-2206. DAMAGE TO UNDERGROUND FACILITIES -- DUTIES OF EXCAVATOR AND
48 OWNER. (1) An excavator who, in the course of excavation, contacts or damages
49 an underground facility shall notify the utility owning or operating such
50 facility underground facility owner and the one-number locator service. If the
51 damage causes an emergency condition, the excavator causing the damage shall
52 also alert the appropriate local public safety agencies and take all appropri-
53 ate steps to ensure the public safety. No damaged underground facility may be
3
1 buried until it is repaired or relocated.
2 (2) The owner of the underground facilities damaged shall arrange for
3 repairs or relocation as soon as is practical or may permit the excavator to
4 do necessary repairs or relocation at a mutually acceptable price.
5 SECTION 3. That Section 55-2208, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 55-2208. EXCAVATIONS EXEMPT FROM NOTICE REQUIREMENT. Unless facts exist
8 which would reasonably cause an excavator to believe that an underground
9 facility exists within the depth of the intended excavation, the following
10 excavations shall not require notice of the excavation pursuant to section
11 55-2203(1)(bc), Idaho Code:
12 (1) An excavation of less than fifteen (15) inches in vertical depth out-
13 side the boundaries of an underground facility easement of public record on
14 private property. and if the excavation is being performed by the person or an
15 employee of the person who owns or occupies the property on which the excava-
16 tion is being performed.
17 (2) The tilling of soil to a depth of less than fifteen (15) inches for
18 agricultural practices.
19 (3) The extraction of minerals within recorded mining claims or excava-
20 tion within material sites legally located and of record, unless such excava-
21 tion occurs within the boundaries of an underground facility easement.
22 (4) Normal maintenance of roads, streets and highways, including cleaning
23 of roadside drainage ditches and clear zones, to a depth of fifteen (15)
24 inches below the grade established during the design of the last construction
25 of which underground facility owners were notified and which excavation will
26 not reduce the authorized depth of cover of an underground facility.
27 (5) Replacement of highway guardrail posts, sign posts, delineator
28 posts, culverts, and traffic control device supports in the same approximate
29 location and depth of the replaced item within public highway rights-of-way.
30 (6) Normal maintenance of railroad rights-of-way, except where such
31 rights-of-way intersect or cross public roads, streets, highways, or rights-
32 of-way adjacent thereto, or recorded underground facility easements.
33 SECTION 4. That Section 55-2209, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 55-2209. VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES
36 UNIMPAIRED. (1) Any person who violates any provision of this chapter, other
37 than the failure to provide notice pursuant to section 55-2203(1)(c), Idaho
38 Code, and which violation results in damage to underground facilities, is sub-
39 ject to a civil penalty of not more than one thousand dollars ($1,000) for
40 each violation. All penalties recovered in such actions shall be deposited in
41 the state general account.
42 (2) If an underground facility is damaged as a result of an excavator's
43 failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code,
44 unless otherwise exempt, the excavator shall receive a written warning from
45 the underground facility owner and shall be liable for actual costs of repair-
46 ing the facility if it is the excavator's first failure to provide the notice
47 required pursuant to section 55-2203(1)(c), Idaho Code, during any consecutive
48 period of twelve (12) months.
49 (a) If the court finds, by a preponderance of the evidence, that the
50 excavator has, on more than one (1) occasion during any consecutive period
51 of twelve (12) months, failed to provide the notice required pursuant to
4
1 section 55-2203(1)(c), Idaho Code, and that such failure has been a proxi-
2 mate cause of damage to an underground facility, the court may increase
3 the civil penalty in an amount up to five thousand dollars ($5,000).
4 (b) If the court finds, by a preponderance of the evidence, that the
5 excavator has, on three (3) or more occasions during any consecutive
6 period of twelve (12) months, failed to provide the notice required pursu-
7 ant to section 55-2203(1)(c), Idaho Code, and that such failure has been a
8 proximate cause of damage to an underground facility, the court may
9 increase the civil penalty in an amount up to ten thousand dollars
10 ($10,000) for the third occurrence taking place during the twelve (12)
11 month period.
12 (3) (a) An action to recover a civil penalty under this section may be
13 brought by a prosecuting attorney. If the prosecuting attorney does not
14 file an action for such civil penalty within sixty (60) days from the date
15 of a request for such action by the owner of an underground facility, the
16 underground facility owner may file such action. Venue for such an action
17 shall be proper in the judicial district for the county in which the dam-
18 aged underground facility is located or the county in which the excavator
19 resides or maintains a principal place of business in this state. The pre-
20 vailing party in such action shall be entitled to recover its costs and
21 reasonable attorney's fees incurred in such action.
22 (b) The penalties provided in this section are in addition to any other
23 remedy at law or equity available to an excavator or to the owner or oper-
24 ator of a damaged underground facility.
25 (c) The court shall consider, as a mitigating factor in determining the
26 amount of civil penalty to be imposed, evidence showing by a preponderance
27 of the evidence that the violation occurred solely as a proximate result
28 of the excavator or underground facility owner's reasonable response to an
29 emergency beyond the control of the offending party.
30 (d) Any civil penalty imposed pursuant to this section shall be deposited
31 in the state general fund. Attorney's fees shall be paid solely to the
32 party successfully bringing the action.
33 (4) Any excavator who willfully or maliciously damages an field-marked
34 underground facility shall on a third or subsequent violation pursuant to sub-
35 section (2) of this section may be liable for treble the costs incurred in
36 repairing or relocating the facility.
37 (35) Unless expressly provided herein, nothing in this chapter elimi-
38 nates, alters or otherwise impairs common law, statutory or other preexisting
39 rights and duties of persons affected by the provisions of this chapter; nor
40 does anything in this chapter, unless expressly so provided, eliminate, alter
41 or otherwise impair other remedies, state or federal, including those at com-
42 mon law, of an underground facility owner whose facility is damaged; nor do
43 the provisions of this chapter affect any civil remedies for personal injury
44 or property damage except as expressly provided for herein.
STATEMENT OF PURPOSE
RS 12149
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
Any civil penalties imposed will be deposited to the general fund
creating a positive fiscal impact.
Contact
Name: Rep. George Eskridge
Phone: (208)332-1000
Roy Eiguren 388-1313
Neil Colwell 343-3821
Elizabeth Criner 385-8692
Mike Huntington 377-6059
Schelly Jensen 503/629-2338
STATEMENT OF PURPOSE/FISCAL NOTE H 678