HB0033 - Underground facilities-notification.
|
2001 |
State of Wyoming |
01LSO-0086 |
HOUSE BILL NO. HB0033
Underground facilities-notification.
Sponsored by: Representative(s) Stafford
A BILL
for
1 AN ACT relating to
underground facilities; modifying
2
notification, excavation and response requirements relating
3 to
excavations and underground facilities; modifying
4
standards for recovery and providing for costs, attorney's
5
fees and civil penalties in actions for damages to
6
underground facilities as specified; requiring one
7
statewide telephone number for notifications; providing for
8
alternative dispute resolution procedures; modifying
9
definitions; and providing for an effective date.
10
11 Be It Enacted by the Legislature of the State of Wyoming:
12
13 Section 1. W.S.
37-12-301(b)(iii), (ix), by creating
14 a new paragraph (x) and by renumbering (x)
as (xi),
15 37-12-302(b), (c)(intro), (iii) and by
creating a new
16 paragraph (iv), (d) and by creating a new
subsection (e)
17 and amending and renumbering (e) through (k)
as (f) through
Page 1
1 (m)
and 37-12-304(a), (b)(i) and (ii), (c) and by creating
2 a
new subsection (d) are amended to read:
3
4 37-12-301. Short title; definitions.
5
6 (b) As used in this act:
7
8 (iii) "Excavation"
means any operation in which
9
earth, rock or other material on or below the ground is
10 moved or otherwise displaced by means of
power tools, power
11 equipment or explosives, and includes
grading, trenching,
12 digging, ditching, drilling, augering,
tunneling, scraping,
13 boring,
and cable or pipe installing, except tilling of
14 soil and gardening or agricultural purposes;
15
16 (ix) "Underground
facility" means any active or
17 inactive,
as of January 1, 2002, item of personal property
18 buried or placed below ground for use in
connection with
19 the storage or conveyance of water, sewage,
electronic,
20 telephonic or telegraphic communications,
cable television,
21 electric energy, oil, gas, hazardous liquids
or other
22 substances and including but not limited to
pipes, sewers,
23 conduits, cables, valves, lines, wires,
manholes and
24 attachments;
Page 2
1
2 (x) "Project
owner" means the person hiring an
3 excavator to perform the excavation;
4
5 (x)(xi) "This
act" means W.S. 37-12-301 through
6 37-12-305.
7
8 37-12-302. Names and addresses of
owners of
9 underground facilities to
be filed with county clerk;
10 notice of excavation by excavator; information to be
11 supplied upon notice; exceptions; penalty.
12
13 (b) Any person
requiring excavation or design for
14 excavation shall obtain information from
persons with
15 underground facilities, as to the nature,
location, and
16 depth if known, of underground facilities.
If the
17 information is not available, the person
requiring
18 excavation shall determine at their expense
the nature and
19 precise
location of the underground facilities. The person
20 requiring excavation shall make the
information and
21 location a part of the plan by which the
excavators
22 operate. This
subsection shall not apply to underground
facility owners
performing excavation on their own
underground
facilities. When excavation is to take
place
Page 3
1 within twenty-four (24) inches horizontally from the
2 exterior sides of any underground
facility, the excavator
3 shall:
4
5 (i) Exercise such
reasonable care as necessary
6 to protect the underground facility in
or near the
7 excavation area; and
8
9 (ii) Based upon the
climatic and geographical
10 conditions
present, visually locate and identify the
11 underground
facility by hand digging, using vacuum
12 excavation
methods, pneumatic hand tools or another
13 mechanical
method mutually agreed upon by the facility
14 operator
and the excavator. Hand digging and other methods
15 specified
in this paragraph shall not be required for the
16 sole
purpose of removing pavement.
17
18 (c) Except as
hereafter provided, no person shall
19 make or begin excavation without first
notifying any person
20 having underground facilities in the area of
the proposed
21 excavation. Notice shall be given by any
electronic medium
22 or in person at least two (2) full business
days, but not
23 more than fourteen (14) business days prior
to any
24 excavation to all notification centers
existing within the
Page 4
1
area pursuant to W.S. 37-12-304. Unless the
location marks
are still visible, If an excavation on a single project
3
lasts more than fourteen (14) business thirty (30) days,
4 the
excavator shall give notice at least once each
5
succeeding fourteen (14) business thirty (30) day period.
6
Notice to the notification center is notice to each member
7
thereof in the area. Notification of the following
8
information to all notification centers in the area shall
9 be
required and shall include the:
10
11 (iii) Specific
location, starting date and
12 description of the intended activity;. and
13
14 (iv) Name of the project owner.
15
16 (d) A person
shall at their expense, upon receipt of
17 the notice provided for in subsection (c) of
this section,
18 mark the location of the facilities with
stakes, paint or
19 by other clearly identifiable marking within
twenty-four
20 (24) inches horizontally from the exterior
sides of the
21 underground facilities. The location shall
be marked using
22 American Public Works Association color
standards. If
23 requested by the excavator, the person
receiving the notice
24 shall advise the excavator of the nature,
location, size,
Page 5
1
function and depth if known, of underground facilities in
2 the
proposed excavation area. Any underground facility
3 owner or operator receiving notice pursuant to subsection
4 (c) of this section shall advise the excavator of the
5 absence of any underground facility in the proposed
6 excavation area by clearly marking that no underground
7 facilities exist or by directly communicating with the
8 excavator that no underground facilities exist.
The person
9
providing information shall respond no later than two (2)
10 full business days after receipt of the
notice or at a time
11 mutually agreed to by the parties.
12
13 (e) An excavator is responsible for preserving the
14 markings
required by subsection (d) of this section at all
15 times
during the excavation. If the markings will be
16 destroyed
or otherwise altered during the excavation the
17 excavator
shall establish suitable reference points which
18 will
enable the excavator to locate the underground
19 facilities
at all time during the excavation. It shall be
20 the
responsibility of the excavator to maintain adequate
21 and
accurate documentation of the location of the
22 underground
facility. The documentation shall be maintained
23 at
the excavation site throughout the excavation period and
24 may
include, but is not limited to, photographs, video
Page 6
1 recordings or sketches. If the documentation maintained
2 pursuant to this subsection:
3
4 (i) Becomes lost or
invalid, the excavator shall
5 notify the notification center or the
affected owner or
6 operator and request an immediate
reverification of the
7 location of any underground facility.
Upon receipt of such
8 notification, the affected owner or
operator shall respond
9 as quickly as is practicable. The
excavator shall cease
10 excavation
activities at the affected location until the
11 location
of the underground facilities has been reverified;
12
13 (ii) Is determined to be inaccurate, the
14 excavator
shall immediately notify the affected owner or
15 operator
and shall request an immediate reverification of
16 the
location of any underground facility. Upon receipt of
17 such
notification, the affected owner or operator shall
18 respond
as quickly as is practicable. The excavator may
19 continue
excavation activity if he exercises reasonable
20 caution
and care to prevent damage to any underground
21 facility.
22
23 (e)(f) Subsection (b) of this section shall not apply
24 to
underground facility owners performing excavation on
Page 7
1 their own underground facilities. Emergency
excavations are
2 exempt
from the time constraints of the provisions of
3
subsections (c) and (d) of this section.
4
5 (f)(g) If information
requested pursuant to
6
subsections (c) and (d) of this section is not provided
7
within the time specified therein, or if the information
8
provided fails to identify the location of the underground
9
facilities in accordance with subsection (d) of this
10 section, then any person damaging or
injuring underground
11 facilities shall not be liable for such
damage or injury
12 except on proof of negligence. However, if
information
13 requested pursuant to subsections (c) and
(d) of this
14 section is provided within the time
specified therein, and
15 if the information provided sufficiently
identifies the
16 location of the underground facilities in
accordance with
17 subsection (d) of this section, then any
person damaging or
18 injuring underground facilities shall be strictly liable
19 for all damage or injury to persons or
property, including
20 costs and
reasonable attorney's fees in any action for
21 damages.
22
23 (g)(h) Compliance with this section does not
excuse a
24 person from acting in a careful and prudent
manner nor does
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1
compliance with this section excuse a person from liability
2 for
damage or injury for failure to so act.
3
4 (h)(j) When any contact
with or damage to any
5
underground facility occurs, the excavator shall
6
immediately cease excavation and
inform the operator of the
7
facility and the notification center.
8
9 (j)(k) Any person who
causes damage to any
10 underground facility by knowingly and
willfully violating
11 any provision of this act is subject to a
civil penalty of
12 an amount not to exceed five thousand
dollars ($5,000.00)
13 for the first
occurrence and an amount not to exceed
14 twenty-five
thousand dollars ($25,000.00) for each
15 subsequent
occurrence. An action may be brought by the
16 aggrieved party,
attorney general, district attorney or
17 county attorney for enforcement of the civil
penalty
18 pursuant to this section. Recovery of any penalty under
19 this section
shall be paid to the party bringing the
20 action. In addition to the penalty, the party
bringing the
21 action shall be
entitled to costs and reasonable attorney's
22 fees.
This subsection shall not apply to any governmental
23 entity as defined by W.S. 1-39-103(a)(i),
which
24 participates in a notification center as
provided by this
Page 9
1
act. Nothing in this subsection shall
affect any provision
2 of
the Wyoming Governmental Claims Act, W.S. 1-39-101
3
through 1-39-120. If an action is brought by
a governmental
4 entity, any civil penalty received under this
section shall
5 be
deposited into the county public school fund of the
6
county in which the violation occurred.
7
8 (k)(m) Any person who
shall make or begin excavation
9
without complying with the provisions of this act and whose
10 excavation causes injury or damage to an
underground
11 facility, shall be strictly liable for all damages,
12 including personal injury and property
damages, caused by
13 the excavation,
as well as costs and reasonable attorney's
14 fees in the
action. This liability for damages is in
15 addition to any penalty that may be imposed
under
16 subsection (j) (k) of this section.
17
18 37-12-304. Notification centers; formation; duties.
19
20 (a) Persons
having underground facilities shall join
21 an existing notification center of their choice or form a
new notification
center and shall participate in a
23 notification center providing for mutual
receipt of
24 notification of excavation activities in a
specified area
Page 10
1 and
pay their share of the cost for the service provided.
2 The
specified area may include the entire state or any
3
portion thereof.
4
5 (b) Each notification center shall:
6
7 (i) File with
the county clerk the statewide
8
toll-free telephone number, which shall be
one (1) of the
two (2) authorized statewide toll-free numbers pursuant
to
10 subsection (c) of this section, and
description of the
11 geographical area served by the notification
center. If the
12 geographical area served by the notification
center is not
13 the entire state, the notification center
shall establish
14 access for the center via an existing
statewide toll-free
15 telephone number to be shared by all notification centers,
16 which serve
limited geographic regions, and share in the
17 costs of that phone service;
18
19 (ii) Inform all
other notification systems
20 serving the same area of its telephone
number and exact
21 area served. The notification center shall
not promote its
22 phone number without advertising or
promoting any known the
23 statewide toll-free number of any other for all
24 notification center
centers in this state;
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1
2 (c) At no time
shall there be in existence in this
3
state more than two (2) one (1) statewide toll-free numbers
5
6 (d) The notification centers shall create a voluntary
7 alternative dispute resolution program
in consultation with
8 their members and all affected
parties. The alternative
9 dispute resolution program shall be
available to all
10 owners,
operators, excavators and other interested parties
11 regarding
disputes arising from damage to underground
12 facilities,
exclusive of the civil penalties set forth in
13 W.S.
37-12-302(k), that cannot be resolved through
14 consultation
and negotiation. The alternative dispute
15 resolution
program shall be a process of dispute resolution
16 including
mediation or arbitration. The issue of liability
17 and
amount of damages under Wyoming law may be decided by
18 an
appointed mediator or arbitrator. Nothing in this
19 section
shall be construed to change the basis for civil
20 liability
for damages.
21
22 Section 2. This act is effective January 1, 2002.
23
24 (END)
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