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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 - 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
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