2002 Legislation
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HOUSE BILL NO. 678 – Underground facilities, marking

HOUSE BILL NO. 678

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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

Bill Text


                                                                        
                                                                        
  ||||              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.

Amendment


                                                                        
                                                                        
  ||||              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".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              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 / Fiscal Impact


                    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