(a) Any person who violates this chapter, or the rules adopted under this chapter, shall be subject to a civil penalty as follows:
(1) For a first violation, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed five hundred dollars ($500) per incident, or both.
(2) For a second or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed one thousand dollars ($1000) per incident, or both.
(3) For a third or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed three thousand dollars ($3,000) per incident.
(4) Notwithstanding this subsection, if any violation was the result of gross negligence or willful noncompliance, the violator shall be required to complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed ten thousand dollars ($10,000) per incident.
(b) Any person who is required to complete a course of training under this section shall be responsible for paying for the cost of the training. For those instances in which training is ordered, if the person is a firm, partnership, association, corporation, limited liability company, joint venture, department, or subdivision of the state or other governmental entity or any other body or organization, it may be required that at least one manager or supervisor thereof attend any training.
(c) The penalties provided under this section may be subject to periodic review by the authority board and revised by rule as needed to ensure enforcement penalties are deemed effective and are in compliance with federal law.
(d) The amount of such penalties shall be dependent upon the degree of non-compliance, the amount of injury or damage caused, the degree of threat to public safety, the degree of public inconvenience caused as a result of the violation, and the number of past violations. Mitigation of the penalty may be shown by good faith efforts of the violator to have complied with this chapter.
(e) All penalties recovered in such actions shall be paid into the Underground Damage Prevention Fund. Any monies remaining in the Underground Damage Prevention Fund at the end of the fiscal year shall not revert to the General Fund, but shall remain in the Underground Damage Prevention Fund for the exclusive use of the authority. The expenditures of monies in the Underground Damage Prevention Fund shall be at the discretion of the authority board to carry out its duties under this chapter. Excess funds shall be used to support public awareness programs and training and education of excavators, operators, locators, and other persons to reduce the number and severity of violations of this chapter.
(f) This chapter does not affect any civil remedies for personal injury or property damage or criminal sanctions except as otherwise specifically provided for in this chapter.
(g) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this chapter shall not be admissible in any other civil causes of actions related to the excavation or damage for which the penalty or fine was issued; however, these materials are discoverable in civil actions arising from the facts herein. This chapter does not limit any person's right to pursue any additional civil remedy otherwise allowed by law.
(h) No civil penalty may be imposed pursuant to this section against an excavator or operator who violates any provision of this chapter if the violation occurred while the excavator or operator was responding to an emergency. Notwithstanding the foregoing, the civil penalty shall be imposed if the violation was willful or malicious.
(i) This section shall not be construed to limit any provision of law granting governmental immunity to state or local entities or to impose any liability or duty of care not otherwise imposed by law upon any state or local entity.
(j) Any person who willfully or maliciously removes or otherwise destroys a marking used by an operator to mark the location of any underground facility, except in the ordinary course of excavation, is guilty of a Class C misdemeanor.
Last modified: May 3, 2021