2006 Minnesota Statutes

CHAPTER 216D. 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.
    Subd. 12. Utility quality level. "Utility quality level" means a professional opinion about the
quality and reliability of utility information. There are four levels of utility quality information,
ranging from the most precise and reliable, level A, to the least precise and reliable, level D.
The utility quality level must be determined in accordance with guidelines established by the
Construction Institute of the American Society of Civil Engineers in document CI/ASCE 38-02
entitled "Standard Guidelines for the Collection and Depiction of Existing Subsurface Utility
Data."
History: 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; 2004 c 163 s 1

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.
History: 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.
History: 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 notice at least 48 hours,
excluding Saturdays, Sundays, and holidays and not more than 14 calendar days before beginning
any excavation or boundary survey. 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 the notice.
(b) The notice may be oral or written, and must contain the following information:
(1) the name of the individual providing the notice;
(2) the precise location of the proposed area of excavation or survey;
(3) the name, address, and telephone number of the individual or individual's company;
(4) the field telephone number, if one is available;
(5) the type and extent of the activity;
(6) whether or not the discharge of explosives is anticipated;
(7) the date and time when the excavation or survey is to commence; and
(8) the estimated duration of the activity.
    Subd. 1a. Plans for excavation. (a) Any person, prior to soliciting bids or entering into a
contract for excavation, shall provide a proposed notice 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
on the final drawing used for the bid or contract and must depict the utility quality level of that
information. This information must be updated 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 home owners.
(c) A person required by this section to show existing underground facilities on its drawings
shall conduct one or more preliminary design meetings during the design phase to communicate
the project design and coordinate utility relocation. Affected facility operators shall attend these
meetings or make other arrangements to provide information.
(d) A person required by this section to show existing underground facilities on its drawings
shall conduct one or more preconstruction meetings to communicate the project design and
coordinate utility relocation. Affected facility operators and contractors shall attend these
meetings or make other arrangements to provide information.
(e) This subdivision does not affect the obligation to provide a notice of excavation as
required under subdivision 1.
    Subd. 2. Duties of notification center; regarding notice. The notification center shall
assign an inquiry identification number to each notice and retain a record of all notices received
for at least six years. The center shall immediately transmit the information contained in a
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) Prior to the excavation start time on
the notice, an operator shall 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.
(b) Within 96 hours or the time specified in the notice, whichever is later, after receiving a
notice for boundary survey from the notification center, excluding Saturdays, Sundays, and
holidays, unless otherwise agreed to between the land surveyor and operator, an operator shall
locate and mark or otherwise provide the approximate horizontal location of the underground
facilities of the operator, without cost to the land surveyor.
(c) 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.
(d) Markers used to designate the approximate location of underground facilities must follow
the current color code standard used by the American Public Works Association.
(e) If the operator cannot complete marking of the excavation or boundary survey area before
the excavation or boundary survey start time stated in the notice, the operator shall promptly
contact the excavator or land surveyor.
(f) After December 31, 1998, operators shall maintain maps, drawings, diagrams, or other
records of any underground facility abandoned or out-of-service after December 31, 1998.
(g) An operator or other person 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, out-of-service, or private or customer-owned 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 cancels the excavation or boundary survey, the
excavator or land surveyor shall cancel the notice through the notification center.
(c) The notice is valid for 14 calendar days from the start time stated on the notice. If the
activity will continue after the expiration time, then the person responsible for the activity shall
serve an additional notice at least 48 hours, excluding Saturdays, Sundays, and holidays, before
the expiration time of the original notice, unless the excavator makes arrangements with the
operators affected to periodically verify or refresh the marks, in which case the notice is valid for
six months from the start time stated on the notice.
(d) The excavator is responsible for reasonably protecting and preserving the marks until
no longer required for proper and safe excavation near the underground facility. If the excavator
has reason to believe the marks are obliterated, obscured, missing, or incorrect, the excavator
shall notify the facility operator or notification center in order to have an operator verify or
refresh the marks.
History: 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; 2004 c 163 s 2-6

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;
(2) use white markings for proposed excavations except where it can be shown that it is not
practical;
(3) 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;
(4) provide support for underground facilities in and near the construction area, including
during backfill operations, to protect the facilities; and
(5) conduct the excavation in a careful and prudent manner.
History: 1987 c 353 s 11; 1998 c 348 s 4; 2004 c 163 s 7

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 promptly. When the operator receives
a damage notice, the operator shall promptly dispatch personnel to the damage area to investigate.
If the damage results in the escape of any flammable, toxic, or corrosive gas or liquid or endangers
life, health, or property, the excavator responsible shall immediately notify the operator and
the 911 public safety answering point, as defined in section 403.02, subdivision 19, and take
immediate action to protect the public and property. The excavator shall also attempt to minimize
the hazard until arrival of the operator's personnel or until emergency responders have arrived
and completed their assessment. The 911 public safety answering point shall maintain a response
plan for notifications generated by this section.
(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.
History: 1987 c 353 s 12; 1999 c 43 s 1

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.
History: 1987 c 353 s 13

216D.08 CIVIL PENALTIES; PROCEEDS TO SAFETY ACCOUNT; RULES.
    Subdivision 1. Penalties. 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. The district court may hear, try, and determine actions commenced under this
section. Trials under this section must be to the court sitting without a jury. If the fine exceeds the
maximum limit for conciliation court, the person appealing the fine may request the commissioner
to conduct an administrative hearing under chapter 14.
    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. Unless the commissioner
chooses to proceed in district court under subdivision 1, 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.
History: 1989 c 244 s 6; 1998 c 348 s 5,6; 2005 c 136 art 8 s 4,5

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.
History: 1989 c 244 s 7