1     
UTILITY EASEMENTS AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel McCay

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to the marking of utilities.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires utility operators to create a statewide notification center to manage requests
14     to utility operators to mark utility facilities before excavation;
15          ▸     requires excavators to provide notice to the notification center before beginning
16     excavation;
17          ▸     allows a person to submit a design request to the notification center to receive
18     information about utility facilities in a designated location; and
19          ▸     describes the process for an excavator to notify others of contact or damage to a
20     utility facility.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          This bill provides a special effective date.
25     Utah Code Sections Affected:
26     AMENDS:
27          54-3-29, as last amended by Laws of Utah 2012, Chapter 347
28          54-8a-2, as last amended by Laws of Utah 2011, Chapter 426
29          54-8a-3, as last amended by Laws of Utah 2008, Chapter 344
30          54-8a-4, as last amended by Laws of Utah 2011, Chapter 426
31          54-8a-5, as last amended by Laws of Utah 2011, Chapter 426
32          54-8a-5.5, as last amended by Laws of Utah 2011, Chapter 426
33          54-8a-6, as last amended by Laws of Utah 2011, Chapter 426
34          54-8a-7, as last amended by Laws of Utah 2008, Chapter 344
35          54-8a-7.5, as enacted by Laws of Utah 2011, Chapter 426
36          54-8a-8, as last amended by Laws of Utah 2011, Chapter 426
37          54-8a-9, as last amended by Laws of Utah 2010, Chapter 272
38          54-8a-11, as last amended by Laws of Utah 2011, Chapter 340
39          54-8a-13, as last amended by Laws of Utah 2010, Chapter 286
40     ENACTS:
41          54-8a-4.5, Utah Code Annotated 1953
42     REPEALS:
43          54-8a-9.5, as enacted by Laws of Utah 1998, Chapter 198
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 54-3-29 is amended to read:
47          54-3-29. Removal, relocation, or alteration of utility facility in public highway
48     construction or reconstruction -- Notice -- Cooperation.
49          (1) As used in this section:
50          (a) "Design-build" means a design-build transportation project for which a design-build
51     transportation project contract is issued, within the meaning of Section 63G-6a-1402.
52          (b) "Municipality" [is as] means the same as that term is defined in Section 10-1-104.
53          (c) "Political subdivision" means a:
54          (i) county; [or]
55          (ii) municipality; or
56          (iii) special service district.
57          (d) "Public agency" means an entity of state government or a political subdivision.
58          (e) "Public highway" means a highway, street, road, or alley constructed for public use
59     in the state.
60          (f) "Utility company" means a privately, cooperatively, or publicly owned utility,
61     including a utility owned by a political subdivision, that provides service using a utility facility.
62          (g) "Utility facility" means:
63          (i) a telecommunications, gas, electricity, cable television, water, sewer, or data
64     facility;
65          (ii) a video transmission line;
66          (iii) a drainage and irrigation system; or
67          (iv) a facility similar to those listed in Subsections (1)(g)(i) through (iii) located in, on,
68     along, across, over, through, or under any public highway.
69          (2) If a public agency engages in or proposes to engage in a construction or
70     reconstruction project on a public highway that may require the removal, relocation, or
71     alteration of a utility facility, the public agency shall:
72          (a) contact [an association, established under Title 54, Chapter 8a, Damage to
73     Underground Utility Facilities,] the notification center, described in Section 54-8a-9 to identify
74     each utility company that may have a utility facility in the area of the construction or
75     reconstruction project;
76          (b) identify a utility company that has an above-ground utility facility in the area of the
77     proposed construction or reconstruction project; and
78          (c) electronically notify each utility company identified in accordance with Subsections
79     (2)(a) and (b).
80          (3) The notice required by Subsection (2)(c) shall:
81          (a) be made as early as practicable and at least 30 days:
82          (i) before the date of the preliminary design or project development meeting;
83          (ii) before the date of an issuance of a request for proposal for a design-build project;
84     or
85          (iii) after a change in scope of a design-build project;
86          (b) include:
87          (i) information concerning the proposed project design;
88          (ii) the proposed date of a required removal, relocation, or alteration of a utility facility;
89          (iii) the federal identifying project number, if applicable; and
90          (c) advise the utility company if the proposed project may qualify for aid for the utility
91     company's expense in removing, relocating, or altering a utility facility.
92          (4) A public agency shall permit a utility company notified under Subsection (2) to
93     participate in the preliminary design or project development meeting[,] or similar meeting at
94     which the project design is addressed.
95          (5) (a) A public agency shall, not less than 30 days after providing notice under
96     Subsection (2) to each utility company, provide the utility company an opportunity to meet
97     with the public agency to allow the utility company to:
98          (i) review project plans;
99          (ii) understand the objectives and funding sources for the proposed project;
100          (iii) provide and discuss recommendations to the public agency that may reasonably
101     eliminate or minimize utility removal, relocation, or alteration costs, limit the disruption of
102     utility company services, or eliminate or reduce the need for present or future utility facility
103     removal, relocation, or alteration; and
104          (iv) provide reasonable schedules to enable coordination of the construction project
105     and removal, relocation, or alteration of a utility facility.
106          (b) If a public agency provides a utility company with reasonable opportunities to meet
107     in accordance with Subsection (5)(a), the utility company's failure to meet does not affect the
108     public agency's ability to proceed with the project.
109          (6) While recognizing the essential goals and objectives of the public highway agency
110     in proceeding with and completing a project, the parties shall use their best efforts to find ways
111     to:
112          (a) eliminate the cost to the utility of relocation of the utility facilities; or
113          (b) if elimination of the costs is not feasible, minimize the relocation costs to the extent
114     reasonably possible.
115          (7) A utility company notified under Subsection (2) shall coordinate with the public
116     agency concerning the utility facility removal, relocation, or alteration, including the
117     scheduling of the utility facility removal, relocation, or alteration.
118          (8) A public agency and a utility company may address the removal, relocation, or
119     alteration of a utility facility in relation to a construction or reconstruction project on a public
120     highway in a franchise agreement in lieu of this section, if the public agency is otherwise
121     permitted to enter into the franchise agreement.
122          (9) This chapter does not affect a public agency's authority over a public right-of-way,
123     including any rule, ordinance, order to relocate a utility as provided in Section 72-6-116, or
124     other valid provision governing the use of the public right-of-way.
125          Section 2. Section 54-8a-2 is amended to read:
126          54-8a-2. Definitions.
127          As used in this chapter:
128          [(1) "Association" means two or more operators organized to receive notification of
129     excavation activities in a specified area, as provided by Section 54-8a-9.]
130          (1) "Backfill" means soil or material that is approved for the soil or material's intended
131     use and meets a project's plans and specifications.
132          (2) "Board" means the Underground Facilities Damage Dispute Board created in
133     Section 54-8a-13.
134          (3) (a) "Design notice" means a communication that:
135          (i) is confirmed and accepted by the notification center;
136          (ii) requests the identification of existing facilities for advance planning and design
137     purposes; and
138          (iii) meets the requirements of Section 54-8a-4.5.
139          (b) "Design notice" does not mean an excavation notice.
140          (4) "Electronic positive response system" means an automated information system
141     operated by the notification center, that allows excavators, locators, operators, and others to
142     communicate the status of a design or excavation notice.
143          [(3)] (5) "Emergency" means an occurrence or suspected natural gas leak necessitating
144     immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential
145     public services.
146          [(4)] (6) "Excavate" or "excavation" means an operation in which earth, rock, or other
147     material on or below the ground is moved or displaced by tools, equipment, [or] explosives, or
148     demolition.
149          (7) "Excavation notice" means a communication that:
150          (a) is confirmed and accepted by the notification center;
151          (b) provides notice of an individual's intent to excavate in a specified location in the
152     state; and
153          (c) meets the requirements of Section 54-8a-4.
154          [(5)] (8) "Excavator" means any person [or entity] that excavates or conducts
155     excavation activities.
156          [(6)] (9) "48 hours" means a 48-hour period occurring during business days [which]
157     that includes any day except Saturday, Sunday, or a [legal] holiday.
158          [(7)] (10) "Hand tool" means an implement:
159          (a) powered by hand; or
160          (b) designed to avoid damaging an underground facility, including a vacuum
161     excavation tool and air knife.
162          (11) "Holiday" means all legal holidays as defined in Section 63G-3-301, the fourth
163     Friday in November, and December 24th.
164          [(8)] (12) "Location" means the site of a proposed area of excavation described:
165          (a) (i) by street address, if available;
166          (ii) by the area at that street address to be excavated; and
167          (iii) as specified in Subsection 54-8a-4(3) or 54-8a-5(2)(b)(ii); or
168          (b) if there is no street address available, by the area of excavation using any available
169     designations, including a nearby street or road, an intersection, GPS coordinates, or other
170     generally accepted methods.
171          [(9)] (13) "Location request assignment" means a number assigned to a proposed
172     excavation by an association or operator upon receiving notice of the proposed excavation from
173     the excavator.
174          (14) "Mark" means to locate and indicate the existence of a line or facility according to
175     the guidelines published by the notification center in the notification center's current version of
176     the excavator's guide.
177          (15) "Notification center" means the Utah non-profit corporation that is created in
178     accordance with Section 54-8a-9.
179          [(10)] (16) (a) "Operator" means a person [who] that owns, operates, or maintains an
180     underground facility.
181          (b) "Operator" does not include an owner of real property where underground facilities
182     are:
183          (i) located within:
184          (A) the owner's property; or
185          (B) a public street adjacent to the owner's property, a right-of-way adjacent to the
186     owner's property, or a public utility easement adjacent to the owner's property;
187          (ii) used exclusively to furnish services to the owner's property; and
188          (iii) maintained under the operation and control of that owner.
189          [(11)] (17) "Person" includes:
190          (a) an individual, government entity, corporation, partnership, association, or company;
191     and
192          (b) the trustee, receiver, assignee, and personal representative of a person listed in
193     Subsection [(11)(a).] (17)(a).
194          (18) "Secondary notice" means notice given by an operator to the notification center
195     that describes indications of an unmarked facility at the site of the proposed excavation, after
196     the operator has previously submitted an excavation notice.
197          [(12)] (19) "Sewer lateral cleanout" means a point of access where a sewer lateral can
198     be serviced.
199          (20) "Tolerance zone" means the area surrounding a facility that:
200          (a) for an underground facility that has the diameter of the facility marked, is the
201     distance of one half of the marked diameter plus 24 inches on either side of the designated
202     center;
203          (b) for an underground facility that does not have the diameter of the facility marked, is
204     24 inches on either side of the outside edge of the mark indicating a facility; or
205          (c) for an above ground facility, is 24 inches in each direction of the outside edge of the
206     physically present facility.
207          [(13)] (21) "24 hours" means a 24-hour period, excluding hours occurring during a
208     Saturday, Sunday, or a [legal] holiday.
209          [(14)] (22) "Underground facility" means personal property that is buried or placed
210     below ground level for use in the storage or conveyance of any of the following:
211          (a) water;
212          (b) sewage, including sewer laterals;
213          (c) communications, including electronic, photonic, telephonic, or telegraphic
214     communications;
215          (d) television, cable television, or other telecommunication signals, including
216     transmission to subscribers of video or other programming;
217          (e) electric power;
218          (f) oil, gas, or other fluid and gaseous substances;
219          (g) steam;
220          (h) slurry; or
221          (i) dangerous materials or products.
222          Section 3. Section 54-8a-3 is amended to read:
223          54-8a-3. Information filed with county clerk.
224          (1) An operator shall file with the county clerk of a county in which the operator has an
225     underground facility the following:
226          (a) the name of each municipality[, city, or town] in which the operator has an
227     underground facility within that county;
228          (b) the operator's name;
229          (c) the title, telephone number, and address of the operator's representative designated
230     to receive calls regarding excavation; and
231          (d) a statement concerning whether the operator is a member of [an association] the
232     notification center and, if the operator is a member of [an association] the notification center,
233     the name of and contact information for the [association] notification center.
234          [(2) In a county where an association is established, the association shall file its
235     telephone number and a list of its members who are operators with the county clerk on behalf
236     of any participating operator.]
237          (2) The notification center shall file with each county clerk:
238          (a) the notification center's telephone number; and
239          (b) a list of the notification center's members that are operators located in the county.
240          Section 4. Section 54-8a-4 is amended to read:
241          54-8a-4. Notice of excavation.
242          (1) (a) Before excavating, an excavator shall notify each operator with an underground
243     facility in the area of the proposed excavation.
244          (b) The requirements of Subsection (1)(a) do not apply:
245          (i) if there is an emergency;
246          (ii) while gardening; or
247          (iii) while tilling private ground.
248          (2) The notice required by Subsection (1) shall:
249          (a) be given:
250          (i) by telephone;
251          [(ii) in person]
252          (ii) by electronic communication; or
253          (iii) by other means acceptable to the notification center, or to each operator, if given
254     directly to each operator;
255          (b) be given not:
256          (i) less than 48 hours before excavation begins; or
257          (ii) more than 14 days before excavation begins; and
258          (c) include the proposed excavation's anticipated:
259          (i) location, with reasonable specificity;
260          (ii) dimensions; and
261          (iii) type[; and].
262          [(iv) duration.]
263          (3) If the proposed excavation's anticipated location and dimensions cannot be
264     described as required under Subsection (2)(c) or as requested in accordance with Subsection
265     54-8a-5(2)(b), an excavator shall outline the proposed excavation site using as a guideline the
266     then-existing Uniform Color Code and Marking Guidelines, Appendix B, published by the
267     Common Ground Alliance, as amended in the current version of the excavators' guide
268     published by the [statewide association] notification center established in Section 54-8a-9.
269          (4) If more than one excavator will operate at the same excavation site, each excavator
270     shall provide the notice required by this section.
271          (5) [If there is an association in the county, notice to that association] Notice provided
272     to the notification center constitutes notice to each operator that has facilities within the
273     proposed excavation site.
274          (6) (a) Notice given under this section is valid for [14] 21 days from the day on which
275     the notice is given.
276          (b) If an excavation will continue beyond the [14-day] 21-day period under Subsection
277     (6)(a), the excavator shall provide notice of that fact at least 48 hours, but no sooner than [six]
278     seven calendar days, before expiration of the [14-day] 21-day period.
279          (c) A notice under Subsection (6)(b) is valid for [14] 21 days from the day on which
280     the previous notice expires.
281          (d) An excavator shall give notice as provided in this Subsection (6) for the duration of
282     the excavation.
283          (7) (a) An excavator shall confirm before excavation that:
284          (i) all operators have responded through the notification center's electronic positive
285     response system; and
286          (ii) (A) all facilities that may be affected by the proposed excavation have been
287     marked;
288          (B) the operators have indicated that there are no underground facilities within the
289     proposed excavation site; or
290          (C) the operators have not requested a meeting under Subsection 54-8a-5(2).
291          (b) If an operator has not responded in the electronic positive response system within
292     48 hours of the receipt of notice:
293          (i) the excavator may begin excavation if there are no visible indications of a facility at
294     the proposed excavation area; or
295          (ii) the excavator may not begin excavation if the excavator is aware of or observes
296     indications of an unmarked facility at the proposed excavation area until:
297          (A) the excavator has given a secondary notice; and
298          (B) the operator makes arrangements for the facility to be marked by the operator.
299          (c) An operator shall make arrangements for the facility to be marked within three
300     hours of the notification center receiving a secondary notice.
301          [(7)] (8) If markings made by the operator have been disturbed so that the markings no
302     longer identify the underground facility:
303          (a) before excavating the site an excavator shall notify:
304          (i) the [association] notification center; or
305          (ii) each operator; and
306          (b) the operator shall mark the area again within 48 hours of the renotification.
307          [(8) An excavator may begin excavation if:]
308          [(a) (i) all underground facilities have been:]
309          [(A) located; and]
310          [(B) marked; or]
311          [(ii) the operators have indicated that there are no underground facilities within the
312     proposed excavation site;]
313          [(b) (i) 48 hours have elapsed from the time of initial notice; and]
314          [(ii) the excavator has not:]
315          [(A) been notified by the operator; or]
316          [(B) received a request for a meeting under Subsection 54-8a-5(2); or]
317          [(c) 48 hours have elapsed from the time of renotification under Subsection (6).]
318          (9) Unless an operator remarks an area pursuant to Subsection [(7),] (8), the excavator
319     shall be responsible for the costs incurred by an operator to remark its underground facilities
320     following the second or subsequent notice given by an excavator for a proposed excavation.
321          Section 5. Section 54-8a-4.5 is enacted to read:
322          54-8a-4.5. Design notice.
323          (1) A person may submit a design notice to the notification center.
324          (2) A design notice submitted to the notification center shall describe the tract or parcel
325     of land for which the design notice has been submitted with sufficient particularity to allow an
326     operator to ascertain the precise tract or parcel of land involved.
327          (3) Within five working days, not including the day notice is given, an operator that has
328     been notified of a design notice submitted to the notification center shall:
329          (a) mark the location of all facilities owned by the operator within the area described
330     by the design notice as provided in Section 54-8a-5;
331          (b) provide to the person submitting the design notice the best available description of
332     all facilities in the area described by the design notice, including drawings marked with a scale,
333     dimensions, and reference points for underground utilities already built in the area or other
334     facility records that are maintained by the operator;
335          (c) allow the person submitting the design notice or any other authorized person to
336     inspect the drawings or other records for all facilities within the area designated by the design
337     notice at a location acceptable to the operator; or
338          (d) provide notice to the person submitting the design notice through the electronic
339     positive response system that the request has been rejected due to homeland security
340     considerations pending the operator obtaining additional information confirming the legitimacy
341     of the notice.
342          Section 6. Section 54-8a-5 is amended to read:
343          54-8a-5. Marking of underground facilities.
344          (1) [(a)] Within 48 hours of the receipt of the notice required by Section 54-8a-4, the
345     operator shall:
346          [(i)] (a) (i) mark the location of [its] the operator's underground facilities in the area of
347     the proposed excavation; or
348          (ii) notify the excavator, by telephonic or electronic message or indication at the
349     excavation site, that the operator does not have any underground facility in the area of the
350     proposed excavation[.]; and
351          (b) provide a response to the notification center's electronic positive response system to
352     indicate whether the operator can provide the information described in Subsection (1)(a)(i).
353          [(b) The underground facility shall be marked using as a guideline the then-existing
354     Uniform Color Code and Marking Guidelines, Appendix B, published by the Common Ground
355     Alliance, as amended in the current version of the excavators' guide published by the statewide
356     association established in Section 54-8a-9.]
357          (2) (a) The operator is not required to mark the underground facilities within 48 hours
358     if:
359          (i) the proposed excavation:
360          (A) is not identified in accordance with Subsection 54-8a-4(2) or is not marked as
361     provided in Subsection 54-8a-4(3);
362          (B) is located in a remote area;
363          (C) is an extensive excavation; or
364          (D) presents other constraints that make it unreasonably difficult for the operator to
365     comply with the marking requirements of this section; or
366          (ii) the operator is not able to readily locate the underground facilities from the surface
367     with standard underground detection devices.
368          (b) If the operator cannot proceed with the marking because of a situation described in
369     Subsection (2)(a), the operator shall contact the excavator within 48 hours after the [excavator's
370     notice of excavation or request for a location request assignment made in accordance with
371     Section 54-8a-4] excavation notice and:
372          (i) request a meeting at the proposed excavation site or some other mutually agreed
373     upon location; or
374          (ii) at the operator's discretion, contact the excavator and request the proposed
375     excavation site be outlined in accordance with Subsection 54-8a-4(3).
376          (c) For a situation described under Subsection (2)(a)(i), the meeting or completed
377     outlining of the proposed excavation site constitutes the beginning of a new 48-hour period
378     within which the operator [must] shall begin marking the underground facilities.
379          (d) (i) For the situation described under Subsection (2)(a)(ii), the excavator and
380     operator shall agree on a plan of excavation designed to prevent damage to the operator's
381     underground facility.
382          (ii) Notwithstanding the agreement, the excavator shall proceed in a manner that is
383     reasonably calculated to avoid damage to the underground facility.
384          (e) (i) An operator need not mark [or locate] an underground facility the operator does
385     not own.
386          (ii) An underground facility under Subsection (2)(e)(i) includes a water or sewer lateral
387     or a facility running from a house to a garage or outbuilding.
388          (f) (i) An operator may mark the location of a known facility connected to the
389     operator's facilities that is not owned or operated by the operator.
390          (ii) Marking a known facility under Subsection (2)(f)(i) imposes no liability on the
391     operator for the accuracy of the marking.
392          (3) Each marking is valid for not more than [14] 21 calendar days from the date notice
393     is given.
394          (4) If multiple lines exist:
395          (a) the markings must indicate the number of lines; or
396          (b) all lines must be marked.
397          Section 7. Section 54-8a-5.5 is amended to read:
398          54-8a-5.5. Determining the precise location of marked underground facilities.
399          (1) An excavator may not use any power-operated or power-driven excavating or
400     boring equipment within [24 inches of the markings made in accordance with Section 54-8a-5]
401     the tolerance zone unless:
402          (a) the excavator determines the exact location of the underground facility by
403     excavating with hand tools to confirm that the excavation will not damage the underground
404     facilities; or
405          (b) the operator provides an excavator with written or electronic notice waiving the
406     requirement that the excavator determine the exact location of the underground facilities by
407     excavating with hand tools.
408          (2) Power-operated or power-driven excavating or boring equipment may be used for
409     the removal of any existing pavement if there is no underground facility contained in the
410     pavement, as marked by the operator.
411          Section 8. Section 54-8a-6 is amended to read:
412          54-8a-6. Duties and liabilities of an excavator.
413          (1) Damage to an underground facility by an excavator who excavates but fails to
414     comply with Section 54-8a-4, is prima facie evidence that the excavator is liable for any
415     damage caused by the negligence of that excavator.
416          (2) (a) An excavator is not liable for a civil penalty under this chapter if the excavator
417     has:
418          (i) given proper notice of the proposed excavation as required in this chapter;
419          (ii) marked the area of the proposed excavation as required in Section 54-8a-4;
420          (iii) complied with Section 54-8a-5.5; and
421          (iv) complied with Section 54-8a-7.
422          (b) An excavator is liable for damage incurred by an operator if:
423          (i) the operator complies with Section 54-8a-5; and
424          (ii) the damage occurs within [24 inches of the operator's markings or the physical
425     presence of an above ground facility, including a manhole, meter, or junction box] the
426     tolerance zone.
427          Section 9. Section 54-8a-7 is amended to read:
428          54-8a-7. Notice of contact or damage -- Repairs.
429          (1) An excavator performing an excavation that results in contact or damage to a
430     facility shall:
431          (a) provide notice of the contact or damage, and if known, the location and nature of
432     damage immediately to the operator;
433          (b) allow the operator reasonable time to accomplish necessary repairs before
434     completing the excavation in the immediate area of the facility; and
435          (c) delay any backfilling in the immediate area of the contacted or damaged facility
436     until:
437          (i) the operator authorizes the excavator to resume backfilling; or
438          (ii) if no response is made by the operator, 24 hours after providing the notice
439     described in Subsection (1)(a).
440          (2) After receiving notification of contact or damage to a facility, the operator, or
441     qualified personnel authorized by the operator, shall immediately examine, and if necessary,
442     make repairs to the contacted or damaged facility.
443          (3) (a) An excavator that is responsible for an excavation where any contact or damage
444     to a facility results in the discharge of electricity or escape of any flammable, toxic, or
445     corrosive gas or liquid, or that endangers life, health, or property shall:
446          (i) immediately notify:
447          (A) emergency responders, including 911 services; and
448          (B) the facility operator; and
449          (ii) take reasonable measures to protect the excavator, other persons, property, and the
450     environment until the operator or emergency responders arrive.
451          [If an excavator contacts or damages an underground facility, the excavator shall:]
452          [(a) immediately notify the appropriate operator and then proceed in a manner that is
453     reasonably calculated to avoid further damage to the underground facility; and]
454          [(b) immediately call 911 if the excavation may result in an immediate risk to human
455     life.]
456          [(2) Upon receipt of notice, the operator shall immediately examine the underground
457     facility, and, if necessary, make repairs.]
458          Section 10. Section 54-8a-7.5 is amended to read:
459          54-8a-7.5. Third-party damages caused by failure to mark a facility.
460          (1) If an operator fails to [locate] mark a facility as required by this chapter and an
461     excavator damages another operator's facility of a similar size and appearance that fits surface
462     markings [as required by Subsection 54-8a-5(1)(b)], the operator who failed to [locate] mark
463     [its] the operator's own facility is liable for the costs of damage to the facility caused by the
464     excavator if:
465          (a) the excavator complies with Sections 54-8a-4, 54-8a-5.5, and 54-8a-6; and
466          (b) the excavator demonstrates that the damage is the direct result of the operator's
467     failure to [locate its] mark the operator's own facility.
468          (2) An excavator who damages a third-party operator's facility as described in
469     Subsection (1):
470          (a) shall pay for the costs of repairing the damaged facility; and
471          (b) may seek recovery of the costs of damage from the operator [who] that failed to
472     mark [its] the operator's own facility.
473          (3) Resolution of a dispute under this section may be in accordance with Section
474     54-8a-13.
475          Section 11. Section 54-8a-8 is amended to read:
476          54-8a-8. Civil penalty -- Exceptions -- Other remedies.
477          (1) A civil penalty may be imposed for a violation of this chapter as provided in this
478     section.
479          (2) A civil penalty under this section may be imposed on:
480          (a) any person [who] that violates this chapter in an amount no greater than $5,000 for
481     each violation with a maximum civil penalty of $100,000 per excavation; or
482          (b) an excavator [who] that fails to provide notice of an excavation in accordance with
483     Section 54-8a-4 in an amount no greater than $500 in addition to the amount under Subsection
484     (2)(a), regardless of whether the excavation resulted in damage to a facility.
485          (3) Notwithstanding Subsection (2)(a), a penalty under this chapter may not be
486     imposed on an excavator or operator unless the excavator or operator fails to comply with this
487     chapter and damages an underground facility.
488          (4) The amount of a civil penalty under this section shall be made taking into
489     consideration the following:
490          (a) the excavator's or operator's history of any prior violation or penalty;
491          (b) the seriousness of the violation;
492          (c) any discharge or pollution resulting from the damage;
493          (d) the hazard to the health or safety of the public;
494          (e) the degree of culpability and willfulness of the violation;
495          (f) any good faith of the excavator or operator; and
496          (g) any other factor considered relevant, including the number of past excavations
497     conducted by the excavator, the number of location requests made by the excavator and the
498     number of location markings made for the excavator or by the operator.
499          (5) "Good faith," as used in Subsection (4)(f), includes actions taken before the filing
500     of an action for civil penalty under this section to:
501          (a) remedy, in whole or in part, a violation of this chapter; or
502          (b) mitigate the consequences and damages resulting from a violation of this chapter.
503          (6) (a) A civil penalty may not be imposed on an excavator if the damage to an
504     underground facility results from an operator's[:] failure to comply with Section 54-8a-5.
505          [(i) failure to mark; or]
506          [(ii) inaccurate marking or locating of the operator's underground facilities.]
507          (b) In addition to or in lieu of part of or all of a civil penalty, the excavator or operator
508     may be required to undertake actions that are designed to prevent future violations of this
509     chapter, including attending safety and compliance training, improving internal monitoring and
510     compliance processes and procedures, or any other action that may result in compliance with
511     this chapter.
512          (7) Subsection (1) does not apply to an excavation made:
513          (a) during an emergency, if reasonable precautions are taken to protect any
514     underground facility;
515          (b) in agricultural operations;
516          (c) for the purpose of finding or extracting natural resources; or
517          (d) with hand tools on property owned or occupied by the excavator.
518          (8) (a) A civil penalty under this section is in addition to any damages that an operator
519     or an excavator may seek to recover.
520          (b) In an action brought under this section, the prevailing party shall be awarded its
521     costs and attorney fees as determined by the court.
522          Section 12. Section 54-8a-9 is amended to read:
523          54-8a-9. Notification center.
524          (1) The operators in the state shall maintain a statewide notification center providing
525     for mutual receipt of excavation notices, receipt of design notices, and damage prevention
526     education.
527          (2) The notification center shall be responsible for:
528          (a) implementing and operating a statewide electronic positive response system;
529          (b) providing notice to operators in the relevant geographic area of a design or
530     excavation notice within 24 hours of receipt of the notice; and
531          (c) maintaining a record of any notice received for a period of five years.
532          (3) The notification center may not be held responsible for:
533          (a) resolving reports of alleged violations of this chapter; or
534          (b) a failure on the part of an excavator or operator to perform an excavator's or
535     operator's responsibilities under this chapter.
536          (4) Each operator with an underground facility in the state shall become a member of
537     the notification center and participate in the notification center to:
538          (a) receive design or excavation notices that have been submitted to the notification
539     center;
540          (b) provide electronic positive response information to the notification center's
541     electronic positive response system; and
542          (c) pay the operator's share of the cost for the service furnished.
543          (5) An operator that does not comply with Subsection (4) and Section 54-8a-5 may be
544     liable for damages incurred by an excavator who complies with this chapter's requirements.
545          (6) The notification center shall file with each county clerk the name and address of the
546     members of the notification center in the county that have underground facilities located within
547     the county.
548          (7) Upon receiving an excavation notice, the notification center shall:
549          (a) notify members and participants in the relevant geographic area within 24 hours;
550     and
551          (b) maintain a record of any notice received for a period of five years to document
552     compliance with the requirements of this chapter.
553          (8) Upon request by a public agency as described in Section 54-3-29, the notification
554     center shall provide the public agency with a list, including available contact information, of
555     each utility company that the notification center knows has a utility facility within the area
556     identified by the public agency.
557          (9) The books and records of the notification center shall be open to inspection by the
558     notification center's members during normal business hours upon 48 hours advance notice.
559          [(1) (a) (i) Two or more operators may form and operate a statewide association
560     providing for mutual receipt of notice of excavation activities.]
561          [(ii) If an association is operational, notice to the association shall be given pursuant to
562     Section 54-8a-4.]
563          [(b) (i) If an association is formed, each operator with an underground facility in the
564     area shall become a member of the association and participate in it to:]
565          [(A) receive a notice of a proposed excavation submitted to the association;]
566          [(B) receive the services furnished by it; and]
567          [(C) pay its share of the cost for the service furnished.]
568          [(ii) If an operator does not comply with Subsection (1)(b)(i) and Section 54-8a-5, the
569     operator is liable for damages incurred by an excavator who complies with this chapter's
570     requirements.]
571          [(c) An association whose members or participants have underground facilities within a
572     county shall:]
573          [(i) file a description of the geographical area served by the association; and]
574          [(ii) file the name and address of every member and participating operator with the
575     county clerk.]
576          [(2) An association receiving notice as provided in Subsection 54-8a-4(1) shall:]
577          [(a) notify members and participants in the relevant geographic area within 24 hours
578     after receiving notice from the person who proposes to excavate; and]
579          [(b) maintain a record of any notice received for a period of five years to document
580     compliance with the requirements of this chapter.]
581          [(3) An association contacted by a public agency to identify a utility company, in
582     accordance with Section 54-3-29, shall provide the public agency with a list, including contact
583     information to the extent available, of each utility company of which the association is aware
584     that has a utility facility within the area identified by the public agency.]
585          Section 13. Section 54-8a-11 is amended to read:
586          54-8a-11. Applicability of federal law.
587          The following persons [or entities] are subject to the provisions of Title 49, Code of
588     Federal Regulations, Part 198, Regulations for Grants to Aid State Pipeline Safety Programs,
589     including those provisions relating to damage to underground facilities:
590          (1) an operator, to the extent subject to the Pipeline Safety Improvement Act of 2002,
591     49 U.S.C. 60101 et seq.;
592          (2) an excavator; and
593          [(3) a person who operates an association.]
594          (3) the notification center.
595          Section 14. Section 54-8a-13 is amended to read:
596          54-8a-13. Underground Facilities Damage Dispute Board -- Arbitration --
597     Relationship with Public Service Commission.
598          (1) There is created within the commission the Underground Facilities Damage
599     Dispute Board to arbitrate a dispute arising from:
600          (a) an operator's or excavator's violation of this chapter; and
601          (b) damage caused by excavation during an emergency.
602          (2) The board consists of five members appointed by the governor as follows:
603          (a) one member from a list of names provided to the governor by a group representing
604     operators;
605          (b) one member from a list of names provided to the governor by the Associated
606     General Contractors;
607          (c) one member from a list of names provided to the governor by Blue Stakes of Utah;
608          (d) one member from a list of names provided to the governor by the Utah Home
609     Builders Association; and
610          (e) one member from the Division of Public Utilities.
611          (3) (a) A member of the board:
612          (i) shall be appointed for a three-year term; and
613          (ii) may continue to serve until the member's successor takes office.
614          (b) At the time of appointment, the governor shall stagger the terms of the members to
615     ensure that approximately 1/3 of the members of the board are reappointed each year.
616          (c) A vacancy in the board shall be filled:
617          (i) for the unexpired term; and
618          (ii) in the same manner as the board member is initially appointed.
619          (d) The board shall select an alternate for a specific board member to serve on a
620     specific case if it becomes necessary to replace a member who has a conflict of interest because
621     a dispute involves that member or that member's employer.
622          (4) Three members of the board constitute a quorum.
623          (5) The board [may, upon agreement of the disputing parties,] shall arbitrate a dispute
624     regarding damages, not including personal injury damages, arising between:
625          (a) an operator;
626          (b) an excavator;
627          (c) a property owner; or
628          (d) any other interested party.
629          (6) At least four members of the board shall be present and vote on an arbitration
630     decision.
631          (7) An arbitration before the board shall be consistent with Title 78B, Chapter 11, Utah
632     Uniform Arbitration Act.
633          (8) The prevailing party in an arbitration conducted under this section shall be awarded
634     its costs and attorney fees in an amount determined by the board.
635          (9) A member may not receive compensation or benefits for the member's service, but
636     may receive per diem and travel expenses in accordance with:
637          (a) Section 63A-3-106;
638          (b) Section 63A-3-107; and
639          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
640     63A-3-107.
641          (10) The commission shall provide administrative support to the board.
642          Section 15. Repealer.
643          This bill repeals:
644          Section 54-8a-9.5, Inspection of records.
645          Section 16. Effective date.
646          This bill takes effect on July 1, 2023.