IDAHO CODE
CHAPTER 22. SECTIONS 55-2201 - 55-2210
(with Amendments Effective July 1, 2002)
55-2201. LEGISLATIVE INTENT.
It is the intent of the legislature in enacting this chapter to assign responsibilities for locating and keeping accurate records of underground facility locations, for protecting and repairing damage to existing underground facilities, and for protecting the public health and safety from interruption in services caused by damage to existing underground facilities. (1991)
55-2202. DEFINITIONS.
As used in this chapter:
"Business day" means any day other than Saturday, Sunday or legal, local, state, or federal holiday.
"Damage" includes the substantial weakening of structural or lateral support of an underground facility, penetration, impairment, or destruction of any underground protective coating, housing, or other protective device, or the severance, partial or complete, of any underground facility to the extent that the project owner or the affected underground facility owner determines that repairs are required.
"Emergency" means any condition constituting a clear and present danger to life or property,
or a customer service outage.
55-2203. PERMIT COMPLIANCE -- NOTICE OF EXCAVATION -- RESPONSE TO NOTICE -- COMPENSATION FOR FAILURE TO COMPLY -- EXEMPTIONS.
(1) Before commencing excavation, the excavator shall:
(a) Comply with other applicable law or permit requirements of any public agency issuing permits;
(b) Pre-mark on-site the path of excavation with white paint or, as the circumstances require, other reasonable means that will set out clearly the path of excavation. An excavator need not pre-mark as required in this subsection if:
(i) The underground facility owner or its agent can determine the location of the proposed excavation by street address or lot and block by referring to a locate ticket; or
(ii) The excavator and underground facility owner have had a meeting prior to the beginning of the proposed excavation at the excavation site for the exchange of information required under this subsection.
(c) Provide notice of the scheduled commencement of excavation to all underground facility owners through a one-number locator service. If no one-number locator service is available, notice shall be provided individually to those owners of underground facilities known to have or suspected of having underground facilities within the area of proposed excavation. The notice shall be communicated by the excavator to the one-number locator service or, if no one-number locator service is available, to the owners of underground facilities not less than two (2) business days nor more than ten (10) business days before the scheduled date for commencement of excavation, unless otherwise agreed in writing by the parties.
(2) Upon receipt of the notice provided for in this section, the underground facility owner or the owner's agent shall locate and mark its locatable underground facilities by surface-marking the location of the facilities. If there are identified but unlocatable underground facilities, the owner of such facilities or the owner's agent shall locate and mark the underground facilities in accordance with the best information available to the owner of the underground facilities and with reasonable accuracy as defined in section 55-2202(12), Idaho Code. The owner of the underground facility or the owner's agent providing the information shall respond no later than two (2) business days after the receipt of the notice or before the excavation time set forth in the excavator's notice, at the option of the underground facility owner, unless otherwise agreed in writing by the parties. Excavators shall not excavate until all known facilities have been marked. Once marked by the owner of the underground facility, or the owner's agent, the excavator is responsible for maintaining the markings. Unless otherwise agreed in writing by the parties, maintained markings shall be valid for purposes of the notified excavation for a period of no longer than three (3) consecutive weeks following the date of notification so long as it is reasonably apparent to the excavator that site conditions have not changed so substantially as to invalidate the markings.
(a) Excavators shall have the right to receive compensation from the owner of the underground facility for costs incurred if the owner of the underground facility does not locate its facilities in accordance with this chapter.
(b) The owner of the underground facility shall have the right to receive compensation for costs incurred in responding to excavation notices given less than two (2) business days prior to the excavation except for notices given for discovered facilities after the owner has identified facilities.
(3) Emergency excavations are exempt from the time requirements for notification provided in this section.
(4) If the excavator, while performing the excavation, discovers underground facilities (whether active or abandoned) which are not identified, the excavator shall cease excavating in the vicinity of the facility and
immediately notify the owner or operator of such facilities, or the one-number locator service. The excavator shall have the right to receive compensation from the underground facility owner for standby cost (based on standby rates made publicly available) incurred as a result of waiting for the underground facility owner or the owner's agent to arrive at the work site to identify the unidentified facilities and provided that if the underground facility owner or the owner's agent supplies reasonably accurate locate information within eight (8) hours of the time that the excavator notifies the underground facility owner of facilities not previously located, the excavator's compensation for delay of the excavation project shall be limited to actual costs or one thousand dollars ($1,000), whichever is less.
55-2204. ONE-NUMBER LOCATOR SERVICE -- ESTABLISHMENT -- PARTICIPATION
REQUIRED -- FUNDING.
Two (2) or more persons who own or operate underground facilities in a county may voluntarily establish or contract with a third person to provide a one-number locator service to maintain information concerning underground facilities within a county. Upon the establishment of the first such one-number service, all others operating and maintaining underground facilities within said county shall participate and cooperate with the service, and no duplicative service shall be established pursuant to this chapter. The activities of the one-number locator service shall be funded by all of the underground facility owner/operators required by the provisions of this section to participate in and cooperate with the service.
55-2205. EXCAVATION CONTRACTS -- LIMITATIONS -- PRECAUTIONS TO AVOID
DAMAGE -- LIABILITY FOR DAMAGE.
(1) Project owners shall indicate in bid or contract documents the existence of underground facilities known by the project owner to be located within the proposed area of excavation.
(2) An excavator shall use reasonable care to avoid damaging underground facilities. An excavator shall:
(a) Determine by hand digging, in the area twenty-four (24) inches or less from the facilities, the precise actual location of underground facilities which have been marked;
(b) Plan the excavation to avoid damage to or minimize interference with underground facilities in and near the excavation area; and
(c) Provide such support for underground facilities in and near the construction area, including during backfill operations, as may be reasonably necessary for the protection of such facilities.
(3) If an underground facility is damaged and such damage is the consequence of the failure to fulfill an obligation under this chapter, the party failing to perform that obligation shall be liable for any damages to
the underground facility owner. Nothing in this chapter prevents the parties to an excavation contract from contracting with respect to the allocation of risk for changed or differing site conditions.
(4) In any action brought under this section, the prevailing party is entitled to reasonable attorney's fees.
55-2206. DAMAGE TO UNDERGROUND FACILITIES -- DUTIES OF EXCAVATOR AND
OWNER.
(1) An excavator who, in the course of excavation, contacts or damages an underground facility shall notify the underground facility owner and the one-number locator service. If the damage causes an emergency condition, the excavator causing the damage shall also alert the appropriate local public safety agencies and take all appropriate steps to ensure the public safety. No damaged underground facility may be buried until it is repaired or relocated.
(2) The owner of the underground facilities damaged shall arrange for repairs or relocation as soon as is practical or may permit the excavator to do necessary repairs or relocation at a mutually acceptable price.
55-2207. DUTIES OF PUBLIC AGENCY ISSUING EXCAVATION PERMITS.
(1) Any public agency issuing permits authorizing excavation operations shall notify persons seeking such permits of the existence of this chapter and the one-call locator service telephone number.
(2) A permit shall not be valid for excavation until or unless the notice provisions of this section have been complied with.
55-2208. EXCAVATIONS EXEMPT FROM NOTICE REQUIREMENT.
Unless facts exist which would reasonably cause an excavator to believe that an underground facility exists within the depth of the intended excavation, the following excavations shall not require notice of the excavation pursuant to section 55-2203(1)(c), Idaho Code:
(1) An excavation of less than fifteen (15) inches in vertical depth outside the boundaries of an underground facility easement of public record on private property.
(2) The tilling of soil to a depth of less than fifteen (15) inches for agricultural practices.
(3) The extraction of minerals within recorded mining claims or excavation within material sites legally located and of record, unless such excavation occurs within the boundaries of an underground facility easement.
(4) Normal maintenance of roads, streets and highways, including cleaning of roadside drainage ditches and clear zones, to a depth of fifteen (15) inches below the grade established during the design of the last construction of which underground facility owners were notified and which excavation will not reduce the authorized depth of cover of an underground facility.
(5) Replacement of highway guardrail posts, sign posts, delineator posts, culverts, and traffic control device supports in the same approximate location and depth of the replaced item within public highway rights-of-way.
(6) Normal maintenance of railroad rights-of-way, except where such rights-of-way intersect or cross public roads, streets, highways, or rights-of-way adjacent thereto, or recorded underground facility easements.
55-2209. VIOLATION -- CIVIL PENALTY -- TREBLE DAMAGES -- OTHER REMEDIES
UNIMPAIRED.
(1) Any person who violates any provision of this chapter, other than the failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code, and which violation results in damage to underground facilities, is
subject to a civil penalty of not more than one thousand dollars ($1,000) for each violation. All penalties recovered in such actions shall be deposited in the state general account.
(2) If an underground facility is damaged as a result of an excavator's failure to provide notice pursuant to section 55-2203(1)(c), Idaho Code, unless otherwise exempt, the excavator shall receive a written warning from the underground facility owner and shall be liable for actual costs of repairing the facility if it is the excavator's first failure to provide the notice required pursuant to section 55-2203(1)(c), Idaho Code, during any consecutive period of twelve (12) months.
(a) If the court finds, by a preponderance of the evidence, that the excavator has, on more than one (1) occasion during any consecutive period of twelve (12) months, failed to provide the notice required pursuant to section 55-2203(1)(c), Idaho Code, and that such failure has been a proximate cause of damage to an underground facility, the court may increase the civil penalty in an amount up to five thousand dollars ($5,000).
(b) If the court finds, by a preponderance of the evidence, that the excavator has, on three (3) or more occasions during any consecutive period of twelve (12) months, failed to provide the notice required
pursuant to section 55-2203(1)(c), Idaho Code, and that such failure has been a proximate cause of damage to an underground facility, the court may increase the civil penalty in an amount up to ten thousand dollars ($10,000) for the third occurrence taking place during the twelve (12)
month period.
(3)
(a) An action to recover a civil penalty under this section may be brought by a prosecuting attorney. If the prosecuting attorney does not file an action for such civil penalty within sixty (60) days from the date of a request for such action by the owner of an underground facility, the underground facility owner may file such action. Venue for such an action shall be proper in the judicial district for the county in which the damaged underground facility is located or the county in which the excavator resides or maintains a principal place of business in this state. The prevailing party in such action shall be entitled to recover its costs and reasonable attorney's fees incurred in such action.
(b) The penalties provided in this section are in addition to any other remedy at law or equity available to an excavator or to the owner or operator of a damaged underground facility.
(c) The court shall consider, as a mitigating factor in determining the amount of civil penalty to be imposed, evidence showing by a preponderance of the evidence that the violation occurred solely as a proximate result of the excavator or underground facility owner's reasonable response to an emergency beyond the control of the offending party.
(d) Any civil penalty imposed pursuant to this section shall be deposited in the state general fund. Attorney's fees shall be paid solely to the party successfully bringing the action.
(4) Any excavator who damages an underground facility on a third or subsequent violation pursuant to subsection (2) of this section may be liable for treble the costs incurred in repairing or relocating the facility.
(5) Unless expressly provided herein, nothing in this chapter eliminates, alters or otherwise impairs common law, statutory or other preexisting rights and duties of persons affected by the provisions of this chapter; nor does anything in this chapter, unless expressly so provided, eliminate, alter or otherwise impair other remedies, state or federal, including those at common law, of an underground facility owner whose facility is damaged; nor do the provisions of this chapter affect any civil remedies for personal injury or property damage except as expressly provided for herein.
55-2210. WAIVER PERMITTED BY OWNER OF UNDERGROUND FACILITY.
The notification and marking provisions of this chapter may be waived for one or more designated persons by an underground facility owner with respect to all or part of that underground facility owner's own underground facilities.
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