1998 Minnesota Statutes

CHAPTER 216D. One call excavation notice system

     216D.01 Definitions. 

    Subdivision 1.    Applicability.  The definitions in 
 this section apply to sections 216D.01 to 216D.07. 

    Subd. 1a.    Commissioner.  "Commissioner" means the 
 commissioner of public safety. 

    Subd. 1b.    Boundary survey.  "Boundary survey" means a 
 survey made to establish or to reestablish a boundary line on 
 the ground or to obtain data for preparing a map or plat showing 
 boundary lines. 

    Subd. 2.    Damage.  "Damage" means:  

    (1) the substantial weakening of structural or lateral 
 support of an underground facility; 

    (2) penetration, impairment, or destruction of any 
 underground protective coating, housing, or other protective 
 device; or 

    (3) impact with or the partial or complete severance of an 
 underground facility to the extent that the facility operator 
 determines that repairs are required. 

    Subd. 3.    Emergency.  "Emergency" means a condition 
 that poses a clear and immediate danger to life or health, or a 
 significant loss of property. 

    Subd. 4.    Emergency responder.  "Emergency responder" 
 means a fire department or company, a law enforcement official 
 or office, an ambulance or other emergency rescue service, or 
 the division of emergency management created by section 12.04, 
 subdivision 1. 

    Subd. 5.    Excavation.  "Excavation" means an activity 
 that moves, removes, or otherwise disturbs the soil by use of a 
 motor, engine, hydraulic or pneumatically powered tool, or 
 machine-powered equipment of any kind, or by explosives.  
 Excavation does not include:  

    (1) the extraction of minerals; 

    (2) the opening of a grave in a cemetery; 

    (3) normal maintenance of roads and streets if the 
 maintenance does not change the original grade and does not 
 involve the road ditch; 

    (4) plowing, cultivating, planting, harvesting, and similar 
 operations in connection with growing crops, trees, and shrubs, 
 unless any of these activities disturbs the soil to a depth of 
 18 inches or more; 

    (5) gardening unless it disturbs the soil to a depth of 12 
 inches or more; or 

    (6) planting of windbreaks, shelterbelts, and tree 
 plantations, unless any of these activities disturbs the soil to 
 a depth of 18 inches or more. 

    Subd. 6.    Excavator.  "Excavator" means a person who 
 conducts excavation in the state. 

    Subd. 6a.    Land surveyor.  "Land surveyor" means a 
 person licensed to practice land surveying under sections 326.02 
 to 326.15. 

    Subd. 7.    Local governmental unit.  "Local 
 governmental unit" means a county, town, or statutory or home 
 rule charter city.  

    Subd. 8.    Notification center.  "Notification center" 
 means a center that receives notice from excavators of planned 
 excavation or other requests for location and transmits this 
 notice to participating operators. 

    Subd. 9.    Operator.  "Operator" means a person who 
 owns or operates an underground facility.  A person is not 
 considered an operator solely because the person is an owner or 
 tenant of real property where underground facilities are located 
 if the underground facilities are used exclusively to furnish 
 services or commodities on that property, unless the person is 
 the state, a state agency, or a local governmental unit. 

    Subd. 10.    Person.  "Person" means the state, a public 
 agency, a local governmental unit, an individual, corporation, 
 partnership, association, or other business or public entity or 
 a trustee, receiver, assignee, or personal representative of any 
 of them. 

    Subd. 11.    Underground facility.  "Underground 
 facility" means an underground line, facility, system, and its 
 appurtenances used to produce, store, convey, transmit, or 
 distribute communications, data, electricity, power, heat, gas, 
 oil, petroleum products, water including storm water, steam, 
 sewage, and other similar substances. 

    HIST: 1987 c 71 s 2; 1987 c 353 s 7; 1988 c 624 s 2; 1989 c 
 244 s 3-5; 1991 c 214 s 7; 1991 c 234 s 3; 1992 c 381 s 7; 1992 
 c 493 s 1-4; 1993 c 341 art 1 s 20 

     216D.02 Notice to excavator or operator. 

    Subdivision 1.    Display and distribution.  Local 
 governmental units that issue permits for an activity involving 
 excavation must continuously display an excavator's and 
 operator's notice at the location where permits are applied for 
 and obtained.  An excavator and operator's notice and a copy of 
 sections 216D.03 to 216D.07 must be furnished to each person 
 obtaining a permit for excavation. 

    Subd. 2.    Form.  The notification center shall 
 prescribe an excavator and operator's notice.  The notice must 
 inform excavators and operators of their obligations to comply 
 with sections 216D.03 to 216D.07.  The center shall furnish to 
 local governmental units:  

    (1) a copy of the notice and sections 216D.03 to 216D.07 in 
 a form suitable for photocopying; 

    (2) a copy of the display and distribution requirements 
 under subdivision 1; and 

    (3) the telephone number and mailing address of the 
 notification center.  

    HIST: 1987 c 353 s 8 

     216D.03 Notification center. 

    Subdivision 1.    Participation.  An operator shall 
 participate in and share in the costs of one statewide 
 notification center operated by a vendor selected under 
 subdivision 2. 

    Subd. 2.    Establishment of notification center; rules. 
  (a) The notification center services must be provided by a 
 nonprofit corporation approved in writing by the commissioner.  
 The nonprofit corporation must be governed by a board of 
 directors of up to 20 members, one of whom is the director of 
 the office of pipeline safety.  The other board members must 
 represent and be elected by operators, excavators, and other 
 persons eligible to participate in the center.  In deciding to 
 approve a nonprofit corporation, the commissioner shall consider 
 whether it meets the requirements of this paragraph and whether 
 it demonstrates that it has the ability to contract for and 
 implement the notification center service. 

    (b) The commissioner shall adopt rules: 

    (1) establishing a notification process and competitive 
 bidding procedure for selecting a vendor to provide the 
 notification service; 

    (2) governing the operating procedures and technology 
 needed for a statewide notification center; and 

    (3) setting forth the method for assessing the cost of the 
 service among operators.  

    (c) The commissioner shall select a vendor to provide the 
 notification center service.  The commissioner may advertise for 
 bids as provided in section 16C.06, subdivisions 1 and 2, and 
 base the selection of a vendor on best value as provided in 
 section 16C.06, subdivision 6.  The commissioner shall select 
 and contract with the vendor to provide the notification center 
 service, but all costs of the center must be paid by the 
 operators.  The commissioner may at any time appoint a task 
 force to advise on the renewal of the contract or any other 
 matter involving the center's operations. 

    (d) An operator may submit a bid and be selected to 
 contract to provide the notification center service under 
 paragraph (a) or (c).  The commissioner shall annually review 
 the services provided by the nonprofit corporation approved 
 under paragraph (a) or the vendor selected under paragraph (c). 

    Subd. 3.    Cooperation with local government.  In 
 establishing operating procedures and technology for the 
 statewide notification center, the board of directors or the 
 commissioner must work in cooperation with the league of 
 Minnesota cities, the association of Minnesota counties, and the 
 township officers' association.  The purpose of this cooperation 
 is to maximize the participation of local governmental units 
 that issue permits for activities involving excavation to assure 
 that excavators receive notice of and comply with the 
 requirements of sections 216D.01 to 216D.07. 

    Subd. 4.    Notice to local government.  The 
 notification center shall provide local governmental units with 
 a master list, by county, of the operators in the county who are 
 participants in the notification center, and the telephone 
 number and mailing address of the notification center. 

    HIST: 1987 c 353 s 9; 1997 c 187 art 1 s 15; 1998 c 386 art 2 
 s 69 

     216D.04 Excavation; land survey. 

    Subdivision 1.    Notice required; contents.  (a) Except 
 in an emergency, an excavator shall and a land surveyor may 
 contact the notification center and provide an excavation or 
 location notice at least 48 hours before beginning any 
 excavation or boundary survey, excluding Saturdays, Sundays, and 
 holidays.  An excavation or boundary survey begins, for purposes 
 of this requirement, the first time excavation or a boundary 
 survey occurs in an area that was not previously identified by 
 the excavator or land surveyor in an excavation or boundary 
 survey notice.  

    (b) The excavation notice may be oral or written, and must 
 contain the following information: 

    (1) the name of the individual providing the excavation 
 notice; 

    (2) the precise location of the proposed area of 
 excavation; 

    (3) the name, address, and telephone number of the 
 excavator or excavator's company; 

    (4) the excavator's field telephone number, if one is 
 available; 

    (5) the type and the extent of the proposed excavation; 

    (6) whether or not the discharge of explosives is 
 anticipated; 

    (7) the date and time when excavation is to commence; and 

    (8) the estimated duration of the excavation. 

    (c) The boundary survey notice may be oral or written, and 
 must contain the following information: 

    (1) the name of the individual providing the boundary 
 survey; 

    (2) the precise location of the proposed area of the 
 boundary survey; 

    (3) the name, address, and telephone number of the land 
 surveyor or the land surveyor's company; 

    (4) the land surveyor's field telephone number, if 
 available; 

    (5) the extent of the proposed boundary survey; 

    (6) the date and time when the boundary survey is to 
 commence. 

    Subd. 1a.    Plans for excavation.  (a) Any person, 
 prior to soliciting bids or entering into a contract for 
 excavation, shall provide a proposed excavation request to the 
 notification center to obtain from the affected operators of 
 underground facilities the type, size, and general location of 
 underground facilities.  Affected operators shall provide the 
 information within 15 working days.  An operator who provides 
 information to a person who is not a unit of government may 
 indicate any portions of the information which are proprietary 
 and may require the person to provide appropriate 
 confidentiality protection.  The information obtained from 
 affected operators must be submitted with the final drawing used 
 for the bid or contract.  This information must be obtained not 
 more than 90 days before completion of the final drawing used 
 for the bid or contract. 

    (b) This subdivision does not apply to bids and contracts 
 for: 

    (1) routine maintenance of underground facilities or 
 installation, maintenance, or repair of service lines; 

    (2) excavation for operators of underground facilities 
 performed on a unit of work or similar basis; or 

    (3) excavation for home construction and projects by 
 homeowners. 

    (c) This subdivision does not affect the obligation to 
 provide a notice of excavation as required under subdivision 1. 

    Subd. 2.    Duties of notification center.  The 
 notification center shall assign an inquiry identification 
 number to each excavation or location notice and retain a record 
 of all excavation or location notices received for at least six 
 years.  The center shall immediately transmit the information 
 contained in an excavation or location notice to every operator 
 that has an underground facility in the area of the proposed 
 excavation or boundary survey.  

    Subd. 3.    Locating underground facility; operator.  
 (a) An operator shall, within 48 hours after receiving an 
 excavation notice from the center, excluding Saturdays, Sundays, 
 and holidays, unless otherwise agreed to between the excavator 
 and operator, locate and mark or otherwise provide the 
 approximate horizontal location of the underground facilities of 
 the operator and provide readily available information regarding 
 the operator's abandoned and out-of-service underground 
 facilities as shown on maps, drawings, diagrams, or other 
 records used in the operator's normal course of business, 
 without cost to the excavator.  The excavator shall determine 
 the precise location of the underground facility, without 
 damage, before excavating within two feet of the marked location 
 of the underground facility. 

    An operator shall, within 96 hours after receiving a 
 location notice for boundary survey from the notification 
 center, excluding Saturdays, Sundays, and holidays, unless 
 otherwise agreed to between the land surveyor and operator, 
 locate and mark or otherwise provide the approximate horizontal 
 location of the underground facilities of the operator, without 
 cost to the land surveyor. 

    (b) For the purpose of this section, the approximate 
 horizontal location of the underground facilities is a strip of 
 land two feet on either side of the underground facilities.  

    (c) Markers used to designate the approximate location of 
 underground facilities must follow the current color code 
 standard used by the American Public Works Association. 

    (d) If the operator cannot complete marking of the 
 excavation or boundary survey area before the excavation or 
 boundary survey commencement time stated in the excavation or 
 location notice, the operator shall promptly contact the 
 excavator or land surveyor.  

    (e) Effective January 1, 1999, operators shall maintain 
 maps, drawings, diagrams, or other records of any underground 
 facility abandoned or out-of-service after December 31, 1998. 

    (f) An operator providing information pursuant to this 
 subdivision is not responsible to any person, for any costs, 
 claims, or damages for information provided in good faith 
 regarding abandoned or out-of-service underground facilities. 

    Subd. 4.    Locating underground facility; excavator or 
 land surveyor.  (a) The excavator or land surveyor shall 
 determine the precise location of the underground facility, 
 without damage, before excavating within two feet on either side 
 of the marked location of the underground facility.  

    (b) If the excavator or land surveyor postpones the 
 excavation or boundary survey commencement time stated in the 
 excavation or location notice by more than 96 hours, or cancels 
 the excavation or boundary survey, the excavator or land 
 surveyor shall notify the notification center. 

    (c) The notification center excavation or location notice 
 will be void six months from the issue date on the notice.  A 
 new notice will need to be issued to continue excavation.  

    HIST: 1987 c 353 s 10; 1992 c 493 s 5; 1993 c 341 art 1 s 21; 
 1997 c 196 s 1; 1998 c 348 s 1-3 

     216D.05 Precautions to avoid damage. 

    An excavator shall: 

    (1) plan the excavation to avoid damage to and minimize 
 interference with underground facilities in and near the 
 construction area, using white markings for proposed excavations 
 where practical; 

    (2) maintain a clearance between an underground facility 
 and the cutting edge or point of any mechanized equipment, 
 considering the known limit of control of the cutting edge or 
 point to avoid damage to the facility; 

    (3) provide support for underground facilities in and near 
 the construction area, including during backfill operations, to 
 protect the facilities; and 

    (4) conduct the excavation in a careful and prudent manner. 

    HIST: 1987 c 353 s 11; 1998 c 348 s 4 

     216D.06 Damage to facility. 

    Subdivision 1.    Notice; repair.  (a) If any damage 
 occurs to an underground facility or its protective covering, 
 the excavator shall notify the operator as soon as reasonably 
 possible.  When the operator receives a damage notice, the 
 operator shall promptly dispatch personnel to the damage area to 
 investigate.  If the damage endangers life, health, or property, 
 the excavator responsible for the work shall take immediate 
 action to protect the public and property and to minimize the 
 hazard until arrival of the operator's personnel or until 
 emergency responders have arrived and taken charge of the 
 damaged area. 

    (b) An excavator shall delay backfilling in the immediate 
 area of the damaged underground facilities until the damage has 
 been investigated by the operator, unless the operator 
 authorizes otherwise.  The repair of damage must be performed by 
 the operator or by qualified personnel authorized by the 
 operator. 

    (c) An excavator who knowingly damages an underground 
 facility, and who does not notify the operator as soon as 
 reasonably possible or who backfills in violation of paragraph 
 (b), is guilty of a misdemeanor. 

    Subd. 2.    Cost reimbursement.  (a) If an excavator 
 damages an underground facility, the excavator shall reimburse 
 the operator for the cost of necessary repairs, and for a 
 pipeline the cost of the product that was being carried in the 
 pipeline and was lost as a direct result of the damage.  

    (b) Reimbursement is not required if the damage to the 
 underground facility was caused by the sole negligence of the 
 operator or the operator failed to comply with section 216D.04, 
 subdivision 3. 

    Subd. 3.    Prima facie evidence of negligence.  It is 
 prima facie evidence of the excavator's negligence in a civil 
 court action if damage to the underground facilities of an 
 operator resulted from excavation, and the excavator failed to 
 give an excavation notice under section 216D.04 or provide 
 support as required by section 216D.05. 

    HIST: 1987 c 353 s 12 

     216D.07 Effect on local ordinances. 

    (a) Sections 216D.01 to 216D.07 do not affect or impair 
 local ordinances, charters, or other provisions of law requiring 
 permits to be obtained before excavating. 

    (b) A person with a permit for excavation from the state or 
 a public agency is subject to sections 216D.01 to 216D.07.  The 
 state or public agency that issued a permit for excavation is 
 not liable for the actions of an excavator who fails to comply 
 with sections 216D.01 to 216D.07. 

    HIST: 1987 c 353 s 13 

     216D.08 Civil penalties; proceeds to safety account; 
  rules. 

    Subdivision 1.    Penalty.  A person who is engaged in 
 excavation for remuneration or an operator other than an 
 operator subject to section 299F.59, subdivision 1, who violates 
 sections 216D.01 to 216D.07 is subject to a civil penalty to be 
 imposed by the commissioner not to exceed $1,000 for each 
 violation per day of violation.  An operator subject to section 
 299F.59, subdivision 1, who violates sections 216D.01 to 216D.07 
 is subject to a civil penalty to be imposed under section 
 299F.60.  

    Subd. 2.    Settlement.  The commissioner may negotiate 
 a compromise settlement of a civil penalty.  In determining the 
 amount of the penalty, or the amount of the compromise 
 settlement, the commissioner shall consider the appropriateness 
 of the penalty to the size of the business of the person 
 charged, the gravity of the violation, and the good faith of the 
 person charged in attempting to achieve compliance, after 
 notification of a violation.  The contested case and judicial 
 review provisions of chapter 14 apply to the orders of the 
 commissioner imposing a penalty under sections 216D.01 to 
 216D.07.  The amount of the penalty, when finally determined, 
 may be deducted from sums owing by the state of Minnesota to the 
 person charged. 

    Subd. 3.    Credited to pipeline safety account; 
 appropriation.  Penalties collected under this section must be 
 deposited in the state treasury and credited to the pipeline 
 safety account to be applied to the reduction of expenses or 
 costs assessed by the commissioner against persons regulated 
 under this chapter.  Penalties collected under this section are 
 annually appropriated to the commissioner of public safety.  

    Subd. 4.    Rules.  The commissioner shall adopt rules 
 establishing reasonable guidelines for imposing penalties.  The 
 rules must provide for notice that a penalty is assessed and may 
 exempt activities from penalties unless the excavator or 
 operator as defined in this section has evidenced a course of 
 action in disregard of this chapter. 

    HIST: 1989 c 244 s 6; 1998 c 348 s 5,6 

     216D.09 Injunctive relief. 

    Subdivision 1.    Jurisdiction.  The district courts of 
 the state of Minnesota have jurisdiction, subject to the 
 provisions of the statutes and the rules of practice and 
 procedure of the state of Minnesota relative to civil actions in 
 the district courts, to restrain violations of sections 216D.01 
 to 216D.07, on petition by the attorney general on behalf of the 
 state of Minnesota.  When practicable, the commissioner shall 
 give notice to a person against whom an action for injunctive 
 relief is contemplated and afford the person an opportunity to 
 present views and, except in the case of a knowing and willful 
 violation, shall afford the person reasonable opportunity to 
 achieve compliance.  However, the failure to give the notice and 
 afford an opportunity to present views does not preclude the 
 granting of appropriate relief. 

    Subd. 2.    Venue.  Actions under this section must be 
 brought in district court in the district where the defendant's 
 principal place of business in the state is located, and process 
 in these cases may be served in any other district in the state 
 of Minnesota where the defendant may be found or in which the 
 defendant is an inhabitant or transacts business. 

    HIST: 1989 c 244 s 7