House Bill No. 375
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act revising regulations governing excavations near underground utilities; clarifying certain definitions; defining "emergency excavation", "emergency locate", "excavator", and "locate"; eliminating the requirement that a public utility file underground facility information with the county clerk and recorder; clarifying general and emergency excavation and location requirements; amending sections 69-4-501, 69-4-502, 69-4-503, and 69-4-504, MCA; and repealing sections 69-4-506 and 69-4-511, MCA."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 69-4-501, MCA, is amended to read:
"69-4-501. Definitions. The following definitions
shall apply to this part:
(1) "Business day" means any day other than Saturday, Sunday,
or a legal local, state, or federal holiday New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
"Emergency" "Emergency excavation" means an excavation in response to an emergency locate that is necessary to:
any alleviate a condition that constitutes a clear and present danger to life or property; or
(b) repair a customer outage involving a previously installed utility-owned facility.
(3) "Emergency locate" means a locate and mark that is requested for:
(a) a condition that constitutes a clear and present danger to life or property; or
(b) a customer outage for which repairs on a previously installed utility-owned facility are required.
(3)(4) "Excavation" means any an operation in which earth, rock, or other material in the ground is moved, removed, or
otherwise displaced by means or use of any tools, equipment, or explosives. The term includes but is not limited to grading,
trenching, digging, ditching, drilling, augering, tunneling, scraping, and cable or pipe plowing and driving. Excavation does
not include surface road grading maintenance or road or ditch maintenance that does not change the original road or ditch
grade or flow line.
(5) "Excavator" means a person conducting the excavation activities defined in subsection (4).
(4)(6) "Identified but unlocatable underground facility" means an underground facility that has been identified but cannot
be located with reasonable accuracy. (5)(7) "Locatable underground facility" means an underground facility that can be field-located and field-marked with
(8) "Locate" means to use specialized equipment to identify the location of underground facilities or the actual location of underground facilities identified by the use of specialized equipment.
(6)(9) "Mark" means the use of stakes, paint, or other clearly identifiable material to show the field location , or absence , of
underground facilities, in accordance with the current color code standard of the American public works association.
Marking must include identification letters indicating the specific type of underground facility , and the width of the facility
if it is greater than 6 inches. (7)(10) "One-call notification center" means a service through which a person may request a locating and marking of
underground facilities. (8)(11) "Person" means an individual, partnership, firm, joint venture, corporation, association, municipality, governmental
unit, department, or agency, and includes any a trustee, receiver, assignee, or a personal representative thereof of the listed
entities. (9)(12) "Reasonably accurate" means location within 18 inches of the outside lateral dimensions of both sides of an
underground facility. (10)(13) "Underground facility" means any a facility buried or placed below ground for use in connection with the storage
or conveyance of water, sewage, electronic, telephonic or telegraphic communications, cablevision, fiber optics, electric
energy, oil, gas, or other substances. The term includes but is not limited to pipes, sewers, conduits, cables, valves, lines,
wires, manholes, and attachments to the listed items."
Section 2. Section 69-4-502, MCA, is amended to read:
"69-4-502. Information to be sought before excavation -- notification -- exceptions. (1) (a) Except as provided in
a person an excavator may not make or begin any an excavation in a public street, alley, right-of-way
dedicated to the public use, or utility easement without first obtaining information concerning the possible location of any
an underground facility from each public utility, municipal corporation, underground facility owner, or other person having
the right to bury underground facilities that is a member of a one-call notification center pursuant to subsection (2)(a)
within the public street, alley, right-of-way, or utility easement.
(b) (i) A registered land surveyor or a person under the supervision of a registered land surveyor may hand dig for shallow survey monuments at a depth of 12 inches or less below the road surface of a highway or at the intersection of the center lines of public streets.
(ii) The registered land surveyor, prior to hand digging, shall obtain proper approval from the appropriate governing authority regarding safety and pavement repair and, when appropriate, shall reference the monument upon exposure.
(iii) The governing authority is not liable for any damages caused or suffered by the registered land surveyor or any person under the supervision of the registered land surveyor.
(iv) The registered land surveyor is liable for damages incurred regarding
utility facility destruction ,. and any
(v) A public utility, municipal corporation, underground facility owner, or other person having the right to bury
within the public street, alley, right-of-way, or utility easement is not liable for any damages suffered
by the registered land surveyor or any person under the control of the registered land surveyor. (2) Every public utility, municipal corporation, or other person having the right to bury underground facilities shall file
with the county clerk and recorder in each county where the underground facilities are located, the name, address, and
telephone number of the person or persons from whom the necessary information may be obtained unless a one-call
notification center is available. (3)(2) (a) A public utility, municipal corporation, underground facility owner, or person having the right to bury
underground facilities must be a member of a one-call notification center covering the service area in which the entity or
person has underground facilities.
(3)(a) (2)(a) does not apply to an owner or occupant of real property where underground facilities are buried
if the facilities are used solely to furnish services or commodities to that property and no part of the facilities are is located
in a public street, alley, or right-of-way dedicated to the public use."
Section 3. Section 69-4-503, MCA, is amended to read:
"69-4-503. Notification -- locating and marking. (1)
At least 2 but not more than 10 business days before Before
beginning any an excavation, the excavator shall notify, through a one-call notification center, all owners of underground
facilities in the area of the proposed excavation of the scheduled commencement of the excavation. If a one-call notification
center service is not available, notice must be provided individually to the owners of underground facilities within the area
of the proposed excavation.
(2) After an excavator has notified the appropriate one-call notification center of a proposed excavation, an owner of an underground facility shall:
(a) provide the locates and mark the location within 2 business days; or
(b) respond immediately if the excavator notifies the one-call notification center that an emergency exists.
(3) (a) After an owner of an underground facility has located and marked the underground facilities, the excavator shall determine if weather, time, or other factors may have affected location marks, warranting relocation of the facilities.
(b) If excavation has not occurred within 30 days of the locate and mark, the excavator shall request that the facility be relocated and remarked before excavating unless other arrangements have been made with the underground facility owner. The excavator is responsible for costs associated with relocating and remarking a facility that is not excavated within 30 days of the locate and mark.
(2)(4) Upon receipt of the notice provided for in this section, the owner of the underground facility shall provide the
excavator with reasonably accurate information as to the owner's locatable underground facilities by surface locating and
marking the location of the facilities. If there are identified but unlocatable underground facilities, the owner of the
facilities shall provide the excavator with the best available information as to their locations. Excavators An excavator may
not excavate until all known facilities have been located and marked. An excavator is not responsible for damages to an
underground facility that cannot be located by its owner. Once the facilities are located and marked by the facility owner,
the excavator is responsible for maintaining the markings. (3)(5) Upon receipt of notice from the excavator, the facility owner shall respond within 2 business days by locating and
marking the facility or by notifying the excavator that locating and marking is unnecessary. An excavator may not begin
excavating before the locating and marking is complete or before he the excavator is notified that locating and marking is
unnecessary. (4)(6) A facility owner may request the excavator to mark the area to be excavated An excavator shall locate and mark the
area to be excavated if requested by the facility owner or the owner's representative. If an excavator discovers an unmarked
underground facility that has not been located and marked, the excavator shall stop excavating in the vicinity of the facility
and notify the facility owner or the one-call notification center.
(7) An underground facility owner may attempt to identify the location of a private underground facility connected to the owner's facility, but the facility owner is not liable for the accuracy of the locate."
Section 4. Section 69-4-504, MCA, is amended to read:
"69-4-504. Information to be part of architects' and engineers' plans. (1) Architects and engineers designing projects
requiring excavation in or adjacent to any public street, alley, or right-of-way dedicated to public use or utility easement
shall obtain information from the owners of underground facilities and then make the information a part of the plan by
which the contractors operate. The owners of the underground facilities shall
provide substantially the same information as
required by 69-4-503 make available all records showing the locations of underground facilities and shall provide locates, if
requested, pursuant to 69-4-503.
Nothing in this This section shall does not excuse any a person from the obligation imposed by 69-4-502(1)."
NEW SECTION. Section 5. Emergency location and excavation. (1) When an emergency excavation is required, the excavator shall notify the one-call notification center. An underground facility owner shall respond as soon as is practical after notification.
(2) Requesting an emergency locate or an emergency excavation that is not an emergency locate or an emergency excavation as those terms are defined constitutes a false alarm pursuant to 45-7-204 and is subject to the penalties under 45-7-204.
NEW SECTION. Section 6. Repealer. Sections 69-4-506 and 69-4-511, MCA, are repealed.
NEW SECTION. Section 7. Codification instruction. [Section 5] is intended to be codified as an integral part of Title 69, chapter 4, part 5, and the provisions of Title 69, chapter 4, part 5, apply to [section 5].