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40-360.22. Excavations; determining location of underground facilities; providing information; excavator marking; on-site representative; validity period of markings; liability for misuse of locate requests; detectible underground locating devices; civil penalty

A. A person shall not make or begin any excavation in any public street, alley, right-of-way dedicated to the public use or public utility easement or in any express or implied private property utility easement or in any apartment community or mobile home park without first determining whether underground facilities will be encountered, and if so where they are located from each and every underground facilities operator and taking measures for control of the facilities in a careful and prudent manner. For all excavations in an apartment community or mobile home park, the excavator shall inform the landlord as promptly as practical that the excavator intends to submit an inquiry to the landlord that will trigger the landlord's obligations provided by subsection B of this section and the inquiry itself shall be made by certified mail to the landlord, using a form prepared by a one-call notification center. The inquiry to a landlord may be made by a one-call notification center for a reasonable fee to the excavator.

B. Except as otherwise provided in this subsection, upon receipt of the excavator's inquiry, the underground facilities operator shall respond as promptly as practical, but in no event later than two working days, by carefully marking such facility with stakes or paint or in some customary manner. A landlord shall respond in the same manner and as promptly as practical, but in no event later than ten working days. No person shall begin excavating before the location and marking are complete or the excavator is notified that marking is unnecessary. If the excavator consents, an underground facilities operator may notify a one-call notification center that marking is unnecessary pursuant to a method established by the one-call notification center. An underground facilities operator may assign any marking or notification obligations required by this subsection to an agent or servant of the underground facilities operator. An underground facilities operator may notify the excavator that marking is unnecessary pursuant to any mutually agreeable method.

C. On a timely request by the underground facilities operator, the excavator shall mark the boundaries of the area requested to be excavated in accordance with a color code designated by the commission or by applicable custom or standard in the industry. A request under this subsection for excavator marking does not alter any other requirement of this section.

D. Except as provided in subsection F of this section, a person shall not begin excavating in any apartment community or mobile home park before the landlord has completed marking the underground facility or the excavator is notified that marking is unnecessary. After underground facility markings are complete or the excavator has received notice that marking is unnecessary, an excavator shall notify the landlord if any of the following conditions exist:

1. Visible and obvious evidence, such as pavement cuts, that would alert a reasonable excavator to the presence of an unmarked underground facility within the boundary of the intended area of excavation.

2. The excavator has concerns regarding the accuracy and meaning of the marks.

3. The excavator encounters an underground facility that has not been marked.

4. The excavator encounters an underground facility that has been incorrectly marked or marked in the wrong location.

E. For every excavation in an apartment community or mobile home park where the excavation method is boring:

1. Every underground facilities operator shall be notified of this methodology.

2. The excavator shall ensure that sufficient clearance is maintained between the bore path and any marked underground facility.

3. The excavator shall visually check the drill head each time it passes through potholes, entrances and exit pits, including during pullback.

4. Each underground facilities operator shall be given a reasonable opportunity to inspect its facility before and during the boring operation.

F. If a landlord fails to respond to an excavator's request in a manner required by this article, an excavator does not violate this article and fulfills the standard of care of a reasonably prudent excavator if the excavator complies with all of the following:

1. One working day before conducting the excavation, the excavator notifies the landlord in writing or by fax that the excavator has determined that the acts or omissions of the landlord is a refusal to respond to an excavator's request.

2. The excavator investigates for the presence of visible and obvious evidence that would alert a reasonable excavator to the presence of an unmarked underground facility within the boundaries of the area to be excavated.

3. The excavator carefully locates all unmarked facilities that are known to exist due to the excavator's investigation performed pursuant to paragraph 2 of this subsection using one of the methods listed in subsection G of this section and carefully marks the facilities with stakes or paint or in some customary manner. In addition, when a landlord provides verbal or written information regarding the location of underground facilities that are within the boundaries of the area to be excavated, the excavator carefully locates all such identified facilities using one of the methods listed in subsection G of this section and carefully marks the facilities with stakes or paint or in some customary manner.

4. The excavator takes measures to control all such located facilities in a careful and prudent manner.

5. The excavator shall not excavate if the excavator receives a response from the landlord that notifies or alerts the excavator to the presence of a mistake or an intention by the landlord to respond in a manner that is consistent with this article, even if the response will be untimely. A landlord's delay, failure to respond to a location request, failure to mark or other noncompliance is not excused by the excavator's or landlord's compliance with this subsection.

G. Except as otherwise provided in this section, in performing the marking required by subsection B of this section, the underground facilities operator of an underground facility installed after December 31, 1988 in a public street, alley or right-of-way dedicated to public use or public utility easement, but not including any express or implied private property utility easement, shall carefully locate the facility by referring to installation records of the facility that are in the possession of the underground facility operator and utilizing one of the following methods:

1. Vertical line or facility markers.

2. Locator strip or locator wire.

3. Signs or permanent markers.

4. Electronic or magnetic location or tracing techniques.

5. Electronic or magnetic sensors or markers.

6. Metal sensors or sensing techniques.

7. Sonar techniques.

8. Underground electrical or radio transmitters.

9. Manual location techniques, including pot-holing.

10. Surface extensions of underground facilities.

11. Any other surface or subsurface location technique that is at least as accurate as the other marking methods in this subsection and that is not prohibited by the commission or by federal or state law. This paragraph does not obligate an underground facilities operator to be aware of and utilize every surface or subsurface location technique available.

H. Except as otherwise provided in this section, for an underground facility other than one installed after December 31, 1988, in a public street, alley or right-of-way dedicated to public use or public utility easement, in performing the marking required by subsection B of this section, the underground facilities operator may refer to installation records or other records relating to the facility to assist in locating the facility and shall carefully locate the facility utilizing one of the methods listed under subsection G of this section.

I. If an underground facilities operator is unable to complete the location and marking within the time period provided by subsection B of this section, the facilities operator shall satisfy the requirements of this section by providing prompt notice of these facts to the excavator and assigning one or more representatives to be present on the excavation site at all pertinent times as requested by the excavator to provide facility location services until the facilities have been located and marked or the excavator is notified that marking is unnecessary pursuant to any mutually agreeable method. A person that receives notice from the underground facilities operator of these facts shall not begin excavating before the underground facilities operator has completed marking the underground facility or the excavator is notified that marking is unnecessary. Except as provided in subsection J of this section, the underground facilities operator shall bear all of its own expenses associated with assigning representatives.

J. The marking required by subsection B of this section is valid for fifteen working days from the date of the marking. If the excavation will continue past the validity period of the marks as provided by this subsection, the excavator shall notify the underground facilities operator or an organization designated by the underground facilities operator at least two working days before the end of the validity period. All requests for facility markings and requests to extend the validity period of the markings shall be for the purpose of excavating within the validity period of the markings. An excavator that requests facility markings shall limit the request to an area that can reasonably be excavated within the validity period of the markings. A person who violates this subsection is liable to the one-call notification center and to all affected underground facilities operators for any damages proximately caused by the violation, including economic loss.

K. Nothing in this section shall be construed to prevent an excavator and an underground facilities operator from holding a preconstruction conference regarding marking and location of underground facilities and entering into a mutually agreeable written schedule for marking or excavating or written arrangement that may constrain the excavation methods or that may provide for the delivery of installation records to the excavator for the purpose of satisfying the requirements of this section, except that this subsection does not eliminate the excavator's obligation to notify the underground facilities operator to locate and mark excavation sites under subsection B of this section based on the actual construction schedule.

L. For abandoned and apparently abandoned underground facilities:

1. The underground facilities operator shall notify the excavator whether the facility is active or abandoned. An inactive facility shall be considered active for purposes of this subsection. This section does not obligate any person to represent that an underground sewer facility in any public street, alley, right-of-way dedicated to public use or public utility easement is abandoned if it was installed on or before December 31, 2005 and it is not owned by an underground facilities operator of a sewer system. This paragraph does not obligate a landlord to represent that an underground facility in any apartment community or mobile home park is abandoned if it was installed before January 1, 2007.

2. For an underground facility abandoned after December 31, 1988 or covered by installation records prepared under section 40-360.30, the underground facilities operator may not advise or represent to the excavator that a facility or portion of a facility is abandoned unless the underground facilities operator has verified, by reference to installation records or by testing, that the facility or portion is actually abandoned and not merely inactive. For all other abandoned or apparently abandoned underground facilities, each one-call notification center shall establish a method of providing personnel from an underground facilities operator qualified to safely inspect and verify that the facility is abandoned or active. For the purposes of this article, an underground facilities operator shall not represent that an underground facility is abandoned unless the facility has been verified as abandoned pursuant to this subsection.

3. For the purposes of this article, if an excavator encounters an apparently abandoned underground facility, the excavator shall not treat the underground facility as abandoned until the excavator has received notification that the underground facility is abandoned pursuant to paragraph 1 of this subsection or has notified the underground facilities operator of the apparent abandonment and has received verification of abandonment pursuant to paragraph 2 of this subsection.

4. Each one-call notification center may establish a method for reimbursing the verifying underground facilities operator for the expenses incurred under paragraph 2 of this subsection. The reimbursement method shall not include any charge or expense to the excavator. A landlord that fails to advise or represent that an underground facility is abandoned pursuant to paragraph 1 of this subsection, whose underground facility is verified as abandoned pursuant to this subsection and who has not filed information with a one-call notification center is liable to the one-call notification center and to all affected underground facilities operators and excavators for the cost of verifying abandonment together with any damages, including economic loss, proximately caused by the violation.

M. All new and active underground facilities installed in any real property after December 31, 2005 shall be installed with a detectible underground location device unless the facility is capable of being detected from above ground with an electronic locating device or the facility is installed within single family residential property and is beneath a pool, permanent pool decking that is less than forty-eight inches from the pool or a permanent building. A person who violates this subsection is subject to a civil penalty in an amount not to exceed five thousand dollars. The building official shall administer and enforce this subsection for all underground facilities except those that are installed for a public utility or municipal corporation. Any penalties received by the building official shall be deposited in the municipality's or political subdivision's general fund, as applicable. Except as required by a city, town or county building code or other related code, for purposes of locating an underground facility a building official or political subdivision shall not compel the installation of one or more clean-outs on any underground sewer facility that is owned by another person and serves one customer where any portion of the underground sewer facility is in any public street, alley, right-of-way dedicated to public use, private property or easement.

N. Nothing in this section shall be construed as prohibiting the use of warning tape, warning markers or any other warning device by the underground facilities operator.

O. For every underground facilities operator of a sewer system:

1. For the purposes of this article, an underground facilities operator of a sewer system is responsible for locating and carefully marking the underground sewer facilities owned by another person pursuant to subsection B of this section if those underground facilities are installed after December 31, 2005 and are in any public street, alley, right-of-way dedicated to public use or public utility easement.

2. In performing the marking required by this subsection, the underground facilities operator of the sewer system shall carefully locate the facility by referring to installation records of the facility and by using one of the methods listed in subsection G of this section.

3. This subsection does not obligate an underground facilities operator of a sewer system to locate and mark the underground sewer facilities owned by another person if the customer receiving sewer service from the underground sewer facility refuses to grant permission to the underground facilities operator of a sewer system to access the real property for the purpose of ascertaining the location of the underground sewer facility in any public street, alley, right-of-way dedicated to public use or public utility easement.

4. This subsection does not obligate an underground facilities operator of a sewer system to maintain, clean or unstop underground sewer facilities owned by another person.

P. For every landlord:

1. For the purposes of this article, each landlord is responsible for marking the underground facilities operated by the landlord pursuant to subsection B of this section. For the purposes of this paragraph, "underground facilities operated by the landlord" includes every underground facility that is in an apartment community or a mobile home park and that:

(a) Discharges into an underground facility that is operated by the landlord.

(b) Is supplied by an underground facility that is operated by the landlord.

(c) Is not operated by a public utility or municipal corporation.

2. If a landlord is unable to complete the location and marking within the time period provided by subsection B of this section, the landlord shall satisfy its obligations in the manner provided by subsection I of this section. Nothing in this subsection shall be construed to prevent the excavator and the landlord from entering into a mutually agreeable written schedule or written arrangement for satisfying the requirements of this section in the manner provided by subsection K of this section.

3. In performing the marking required by this subsection for an underground facility installed after December 31, 2006, the landlord shall carefully locate the facility by referring to installation records of the facility that are in the possession of the landlord and by using one of the methods listed in subsection G of this section.

4. In performing the marking required by this subsection for an underground facility installed before January 1, 2007, the landlord may refer to installation records or other records relating to the facility to assist in locating the facility and shall locate the facility using one of the methods listed in subsection G of this section.

5. Subject to the availability of monies, landlords may apply for grants from a grant account established for the purpose of meeting the standards prescribed by this article and for the purpose of creating installation records for facilities that are not required to be created or maintained by this article.

6. Notwithstanding any other provision in this article, a landlord is not liable for any costs or expenses, including damage to third parties, resulting from damage to an underground sewer facility owned by the landlord and located within a public right-of-way if the damage was not caused by either:

(a) The landlord's or tenant's actions.

(b) The landlord's or tenant's refusal to grant access to the operator of the sewer system that connects to the landlord's underground sewer facility.

7. This article does not obligate a landlord to locate and mark a facility owned by a tenant if the tenant owns the mobile home, the tenant refuses to grant permission to the landlord to access the mobile home and the facility cannot be located without accessing the mobile home.

8. Any rule, regulation, lease or agreement that purports to obligate a tenant to perform the landlord's obligations required by this article is against the public policy of this state and is void.

9. This subsection does not obligate a landlord to maintain, clean or unstop underground facilities owned by another person.

Q. All inquiries and notices to a landlord shall be made to the address on file at a one-call notification center. Notwithstanding any other law, if the landlord has not filed information at the one-call notification center, the excavator does not violate this article and fulfills the standard of care of a reasonably prudent excavator if the excavator makes the inquiry or notice to the property owner of record according to the records of the county assessor in the county in which the property is located.