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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 - 2002IN 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 31owners ofundergroundfacilitiesfacility 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, theowner of42theunderground facility owner or the owner's agent shallprovide the excava-43tor with reasonably accurate information as tolocate 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 shallprovide the excavatorlocate and mark 4 the underground facilities in accordance with the bestavailableinformation 5as to their locationsavailable 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 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. 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. Thestate, county, city or highway district public road34agencyexcavator 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 identifyfacilities discov-38ered after the owner has identified all knownthe 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 excavatorencounters the facilitynotifies 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 oreight hundred44 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 theutility owning or operating such50facilityunderground 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 an15employee of the person who owns or occupies the property on which the excava-16tion 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 whowillfully or maliciouslydamages anfield-marked34 underground facilityshallon 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 - 2002Moved 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 - 2002IN 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 31owners ofundergroundfacilitiesfacility 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, theowner of42theunderground facility owner or the owner's agent shallprovide the excava-43tor with reasonably accurate information as tolocate 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 shallprovide the excavatorlocate and mark 4 the underground facilities in accordance with the bestavailableinformation 5as to their locationsavailable 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 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. 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. Thestate, county, city or highway district public road34agencyexcavator 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 identifyfacilities discov-38ered after the owner has identified all knownthe 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 excavatorencounters the facilitynotifies 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 oreight hundred44 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 theutility owning or operating such50facilityunderground 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 an15employee of the person who owns or occupies the property on which the excava-16tion 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 whowillfully or maliciouslydamages anfield-marked34 underground facilityshallon 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