T55CH22

Title 55 > T55CH22

Sections (11)

55-2201

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2201. Legislative intent. It is the intent of the legislature in enacting this chapter to create a system of stakeholder-driven education and enforcement addressing the prevention of damage to underground facilities, to assign responsibilities for locating and keeping accurate records of underground facility locations, for preventing and repairing damage to existing underground facilities, for collecting, storing, analyzing and disseminating data related to underground facility damage and excavator downtime events, and for protecting the public health and safety from great personal harm including death, property damage and interruption in vital services caused by damage to existing underground facilities. It is further the intent of the legislature that the state of Idaho, by adopting this chapter, reaffirms its primacy over underground facility damage prevention programs that protect the health, safety and property of its citizens and that, by adopting this chapter, Idaho precludes the pipeline and hazardous materials safety administration of the United States department of transportation from determining that Idaho’s damage prevention enforcement is inadequate pursuant to 49 CFR part 198, as adopted on July 9, 2015, and effective on January 1, 2016, and prevents any subsequent federal administrative enforcement actions that would result from such a formal determination. History: [55-2201, added 1990, ch. 351, sec. 1, p. 940; am. 2016, ch. 325, sec. 1, p. 894.]

55-2202

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2202. Definitions. As used in this chapter: (1) Administrator means the administrator of the division of occupational and professional licenses. (2) Board means the damage prevention board. (3) Business day means any day other than Saturday, Sunday, or a legal, local, state, or federal holiday. (4) Damage means any impact or exposure that results in the substantial weakening of structural or lateral support of an underground facility, or the penetration, impairment, or destruction of any underground protective coating, housing, or other protective device, or the partial or complete destruction of the facility, 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. (5) Emergency means any sudden or unforeseen condition that compels immediate action to prevent or resolve: (a) A clear and present danger to life, health, or property; (b) An unplanned customer service outage; or (c) The blockage of roads or transportation facilities. (6) Emergency excavation means an excavation performed in response to an emergency. (7) End user means any customer or consumer of any utility service or commodity provided by an underground facility owner. (8) Excavation means any operation in which earth, rock, or other material in the ground is moved or otherwise displaced by any means including, but not limited to, explosives. (9) Excavator means any person who engages directly in excavation. (10) Excavator downtime means lost time for an excavation project due to failure of one (1) or more stakeholders to comply with applicable damage prevention regulations. (11) Hand digging means any excavation involving nonmechanized tools or equipment that when used properly will not damage underground facilities. Hand digging includes, but is not limited to, hand shovel digging, manual posthole digging, vacuum excavation, and soft digging. (12) Identified but unlocatable underground facility means an underground facility that has been identified but cannot be located with reasonable accuracy. (13) Identified facility means any underground facility that is indicated in the project plans as being located within the area of proposed excavation. (14) Locatable underground facility means an underground facility that can be field-marked with reasonable accuracy. (15) Locator means a person who identifies and marks the location of an underground facility owned or operated by an underground facility owner. (16) Marking means the use of stakes, paint, or other clearly identifiable materials to show the field location of underground facilities, in accordance with the current color code standard of the American public works association. Markings shall include identification letters indicating the specific type of the underground facility. (17) Notice of emergency excavation means

55-2203

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2203. damage prevention board. (1) The Idaho damage prevention board is hereby created and made a part of the division of occupational and professional licenses. The principal purpose of the board is to reduce damages to underground facilities and to promote safe excavation practices through education directed toward excavators, underground facility owners and the public at large. The board also shall review complaints of alleged violations of this chapter. It shall be the responsibility and duty of the administrator to administer this chapter, and the administrator shall exercise such powers and duties as are reasonably necessary to enforce the provisions of this chapter. (2) The board shall consist of eleven (11) members, each of whom shall be appointed by and serve at the pleasure of the governor. All members of the board shall be qualified by experience, knowledge and integrity in formulating rules, reviewing complaints referred to it, assessing penalties, and properly performing the functions of the board. Of the eleven (11) members, one (1) each shall represent the interests of the following designated groups and be: (a) A city official or a county official; (b) An employee or elected official of a highway district; (c) An employee of the Idaho public utilities commission; (d) An employee or officer of a one-number notification service entity or a member of the Idaho utility coordinating council or similar cooperative statewide nonprofit organization created to coordinate the protection of underground facilities in specific geographic portions of the state; (e) An employee or officer of an underground facility owner; (f) An employee or officer of an underground pipeline facility owner; (g) An employee or officer of a rural underground facility owner; (h) An employee or officer of a contractor; (i) An employee or officer of a building contractor; (j) An employee or officer of an excavator; and (k) An employee or owner of an agricultural enterprise, a representative of the agriculture industry, or an employee or an official of a public entity that delivers water for irrigation. (3) Each member of the board shall serve a term of four (4) years, and such terms shall be staggered. The initial board shall have three (3) members whose terms expire July 1, 2018; four (4) members whose terms expire July 1, 2019; and four (4) members whose terms expire July 1, 2020. Thereafter, each board member shall be appointed for a term of four (4) years. No member of the board may be appointed to more than two (2) consecutive terms. A member may continue to serve until a successor is appointed. A successor must represent the same designated group that his predecessor was appointed to represent. (4) The board shall meet within thirty (30) days after the appointment of all its members and thereafter at such other times as may be expedient and necessary for the proper performance o

55-2205

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2205. 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 notification service. If no one-number notification 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 notification service or, if no one-number notification 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 with reasonable accuracy, as defined in section 55-2202 , Idaho Code, 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. 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 four (4) consecutive weeks following the

55-2206

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2206. One-number notification 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 notification service to maintain information concerning underground facilities within a county. Upon the establishment of the first such one-number notification service, all underground facility owners with 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 notification service shall be funded by all of the underground facility owners required by the provisions of this section to participate in and cooperate with the service. Each underground facility owner required to participate in a one-number notification service is subject to the jurisdiction of the damage prevention board established in section 55-2203 , Idaho Code, and shall maintain accurate contact information, updated at least annually, with the one-number notification service for individuals responsible for the operation of the underground facilities of the underground facility owner, including contact information for individuals responsible for responding to an emergency. History: [(55-2206) 55-2204, added 1990, ch. 351, sec. 1, p. 942; am. and redesig. 2016, ch. 325, sec. 6, p. 900; am. 2019, ch. 256, sec. 3, p. 766; am. 2023, ch. 191, sec. 3, p. 526.]

55-2207

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2207. 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 that 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 the damage to the underground facility. 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. History: [(55-2207) 55-2205, added 1990, ch. 351, sec. 1, p. 942; am. and redesig. 2016, ch. 325, sec. 7, p. 901; am. 2023, ch. 191, sec. 4, p. 526.]

55-2208

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2208. Damage to underground facilities — Duties of excavator and owner — reporting of data. (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 notification service. If the damage causes an emergency condition or an actual breach of an underground facility that releases gas or hazardous liquids into the surrounding environment, the excavator causing the damage shall also alert the appropriate local public safety agencies by, at a minimum, calling 911, 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. (3) Any party responsible for damages to an underground facility shall be liable for the cost of repairs. (4) The board shall adopt by rule a procedure for the processing of claims related to damages to underground facilities. (5) Underground facility owners who observe or suffer damage to an underground facility and excavators who observe or suffer excavator downtime related to a failure of one (1) or more stakeholders to comply with applicable damage prevention regulations shall report such information to the board in accordance with the rules promulgated by the board. Reporting of such data does not constitute a complaint provided for in section 55-2211 , Idaho Code. History: [(55-2208) 55-2206, added 1990, ch. 351, sec. 1, p. 943; am. 2002, ch. 351, sec. 2, p. 1003; am. and redesig. 2016, ch. 325, sec. 8, p. 901; am. 2019, ch. 182, sec. 3, p. 589.]

55-2209

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2209. Duties of public agency issuing excavation, building or other similar permits. (1) Any public agency, as defined in section 67-2327 , Idaho Code, that has the authority to issue excavation, building or other similar permits shall notify persons seeking such permits of the existence of this chapter and the one-number notification 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, and the portion of the permit directly relating to excavation may be suspended by the issuing public agency if the permit holder violates any provisions of this chapter. The issuing public agency shall reinstate the permit at no charge within forty-eight (48) hours of receiving evidence of compliance with the provisions of this chapter. History: [(55-2209) 55-2207, added 1990, ch. 351, sec. 1, p. 943; am. 1991, ch. 170, sec. 3, p. 412; am. and redesig. 2016, ch. 325, sec. 9, p. 902.]

55-2210

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2210. 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 55-2205 (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. History: [(55-2210) 55-2208, added 1990, ch. 351, sec. 1, p. 943; am. 1991, ch. 170, sec. 4, p. 412; am. 2002, ch. 351, sec. 3, p. 1003; am. and redesig. 2016, ch. 325, sec. 10, p. 902.]

55-2211

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2211. Violation — Civil penalty — duties of the board and the administrator — Other remedies unimpaired. (1) The damage prevention board established in section 55-2203 , Idaho Code, may hear, but may not initiate, contested cases of alleged violations of this chapter involving practices related to underground facilities as set forth in rule by the board. Persons who violate the provisions of this chapter are subject to civil penalties in accordance with this section. Complaints regarding an alleged violation of this chapter may be made by any individual and shall be made to the administrator. Complaints shall include the name and address of the complainant and the alleged violator and the violation alleged. If the alleged violation involves facility damage or a downtime event, the complaint must be submitted on such forms and contain such information as required by the board in rule. Upon review of the complaint, and any investigation conducted therewith, the administrator shall notify the person making the complaint and the alleged violator, in writing, of the administrator’s recommended course of action to the board. The administrator shall recommend that a training course adopted by the board, by rule, be successfully completed for a first violation of this chapter, except that if the complaint is for a first violation of this chapter wherein a residential homeowner or residential tenant excavating on the lot of his residency failed to provide notice as required in section 55-2205 , Idaho Code, and caused damage to underground facilities, the board shall direct the administrator to deliver to the violator a written warning and educational materials to prevent a future violation. The administrator may recommend the imposition of a civil penalty in an amount not to exceed one thousand dollars ($1,000) for a second violation of this chapter and in addition may recommend successful completion of a training course adopted by the board, by rule, and issue a notice of intent to impose such penalty on behalf of the board. If the administrator recommends the imposition of a civil penalty, the violator may pay the fine to the board upon receipt of such notice. If, upon the expiration of twenty-one (21) days, the violator has not responded in writing to the division, the board may impose the penalty provided for in the notice. A violator shall also have the right to contest the imposition of a civil penalty to the board and the opportunity to produce evidence in his behalf. Notice of the time and place of such hearing shall be provided by the board, and such proceeding shall be governed by the provisions of chapter 52, title 67 , Idaho Code. (2) In the event the board determines that a person has violated the provisions of this chapter a subsequent time within eighteen (18) months from an earlier violation, and where facility damage has occurred, the board may impose a ci

55-2212

TITLE 55 PROPERTY IN GENERAL CHAPTER 22 UNDERGROUND FACILITIES DAMAGE PREVENTION 55-2212. 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. History: [(55-2212) 55-2210, added 1990, ch. 351, sec. 1, p. 944; am. and redesig. 2016, ch. 325, sec. 12, p. 904.]