7 CCR 1101-18
DEPARTMENT OF LABOR AND EMPLOYMENT UNDERGROUND DAMAGE PREVENTION SAFETY COMMISSION REGULATIONS 7 CCR 1101-18 [Editor’s Notes follow the text of the rules at the end of this CCR Document] ____________________________________________________________________________________ ARTICLE 1 GENERAL PROVISIONS Section 1-1 Statement of Basis and Purpose These regulations are promulgated to establish rules for the Underground Damage Prevention Safety Commission (Safety Commission) responsibilities within the Excavation Requirements Act (the Act), Title 9 Article 1.5 Colorado Revised Statutes (CRS). The purpose of Safety Commission is to prevent injury to persons and damage to property.
Section 1-2 Statutory Authority These regulations have been created pursuant to Section 104.2 (2)(d) of the Act. Section 1-3 Effective Date These regulations shall be effective on February 14, 2019. Section 1-4 Definitions Terms in these regulations shall have the same definitions as those found in the Act or as defined below. ASCE 38. The standard for defining the quality of an underground facility location as defined in the current edition of the American Society of Civil Engineers' “Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data (CI/ASCE 38-02)” or an analogous successor standard as determined by the safety commission.
DAMAGE. Includes the penetration or destruction of any protective coating, housing, or other protective device of an underground facility, the denting or partial or complete severance of an underground facility, or the rendering of any underground facility inaccessible. EMERGENCY SITUATIONS. Includes ruptures and leakage of pipelines, explosions, fires, and similar instances where immediate action is necessary to prevent loss of life or significant damage to property, including, without limitation, underground facilities, and advance notice of proposed excavation is impracticable under the circumstances.
EXCAVATION. means any operation in which earth is moved or removed by means of any tools, equipment, or explosives and includes augering, backfilling, boring, ditching, drilling, grading, plowing-in, pulling-in, ripping, scraping, trenching, hydro excavating, postholing, and tunneling. “Excavation” does not include:
(1) Routine maintenance on existing planted landscapes; or (2) An excavation by a rancher or a farmer, as defined in section 42-20-108.5, CRS, occurring on a ranch or farm when the excavation involves:
FARMER. A person or such person's agent or contractor engaged in the production or raising of crops, poultry, or livestock.
FRIVOLOUS COMPLAINT. A complaint filed with the Safety Commission that is entirely without merit and is made with the intention of causing inconvenience, harassment or expense. GRAVITY-FED SYSTEM. Any underground facility that is not pressurized and that utilizes gravity as the only means to transport its contents. These systems include sanitary sewer lines, storm sewer lines, and open-air irrigation ditches.
LICENSED PROFESSIONAL ENGINEER. A professional engineer as defined in section 12-25-102, CRS.
NOTIFICATION ASSOCIATION. The statewide notification association of owners and operators of underground facilities created in section 9-1.5-105, CRS, also known as Colorado 811 and the Utility Notification Center of Colorado.
OPERATOR or OWNER. Any person, including public utilities, municipal corporations, political subdivisions, or other persons having the right to bury underground facilities in or near a public road, street, alley, right-of-way, or utility easement. Operator or owner in these regulations does not include any railroad.
PERSON. Any individual acting on his or her own behalf, sole proprietor, partnership, association, corporation, or joint venture; the state, any political subdivision of the state, or any instrumentality or agency of either; or the legal representative of any of them. ROUTINE MAINTENANCE. A regular activity that happens at least once per year on an existing planted landscape if earth is not disturbed at a depth of more than twelve inches by nonmechanical means or four inches by mechanical means and if the activities are not intended to permanently lessen the ground cover or lower the existing ground contours. Mechanical equipment used for routine maintenance tasks shall be defined as aerators, hand-held rototillers, soil injection needles, lawn edgers, overseeders, and hand tools.
SAFETY COMMISSION. Also known as the “Underground Damage Prevention Safety Commission.” The enforcement authority as established by statute.
SUBSURFACE UTILITY ENGINEERING NOTIFICATION. A notice to the notification association that a project is being designed by a licensed professional engineer and that the project will include the investigation and depiction of existing underground facilities that meet or exceed the ASCE 38 standard.
SUBSURFACE UTILITY ENGINEERING-REQUIRED PROJECT. A project that meets all of the following conditions:
(1) The project involves a construction contract with a public entity, as that term is defined in section 24-91-102, CRS;
(2) The project involves primarily horizontal construction and does not involve primarily the construction of buildings;
(3) The project:
(4) The project requires the design services of a licensed professional engineer. UNDERGROUND FACILITY. Any item of personal property which is buried or placed below ground for use in connection with the storage or conveyance of water or sewage, electronic, telephonic, or telegraphic communications or cable television, electric energy, or oil, gas, or other substances. An item of personal property, as used in this definition, includes, but is not limited to, pipes, sewers, conduits, cables, valves, lines, wires, manholes, and attachments thereto. VIOLATION. A determination by the Safety Commission that a violation of the Act has occurred. VIOLATION, MAJOR. A violation where any of the following has occurred:
(1) The violation is a causal factor in an injury or fatality.
(2) The violation is a causal factor in the striking of high pressure gas or electric facilities.
(3) Excavator does not notify Colorado 811 prior to excavation activities.
(4) Willful or malicious removal of marking except in the excavation.
(5) The excavator does not use nondestructive means of excavation to identify a facility, does not use reasonable care to protect a facility, or does not expose the facility when requested by the facility owner or permit issuing entity.
(6) The excavator does not report underground facility damage to the facility owner and, if the damage is to a high pressure gas facility, to 911.
(7) The Review Committee finds the violation to be in blatant disregard for the best practices and the potential for injury to the public or property is highly probable. VIOLATION, MINOR. A violation where any of the following has occurred:
(1) A Cancel Request is not submitted prior to the expiration of the “Locate by Date.” (2) The violation involves administrative management of data or reporting of information.
(3) Any violation of Section 104.2 of the Act caused by the Safety Commission.
(4) Failure of the excavator to properly notify property owners in the event of the removal of underground facilities.
(5) The Review Committee finds the violation to be relevant, and the potential for injury to the public or property is not a factor.
(6) Frivolous complaint.
VIOLATION, MODERATE. A violation where any of the following has occurred:
(1) Facility owner does not appropriately respond to a locate request.
(2) Excavator fails to request a reverification of markings or facility owner fails to reverify the markings within a reasonable time.
(3) A person performing maintenance does not notify Colorado 811 and the facility owner/operator when it is discovered.
(4) In emergency situations, the excavator does not take reasonable precautions to avoid damage to facilities.
(5) Failure of Colorado 811 to re-notify a facility owner when a positive response is not completed by the owner.
(6) A person performing maintenance does not take reasonable care when disturbing the soil.
(7) A new facility is installed after August 8, 2018, and is not electronically locatable.
(8) The Review Committee finds the violation to not within best practices and the potential for injury to the public or property is foreseeable.
Section 1-5 Scope These regulations apply to requirements defined in Sections 104.2, 104.4, 104.7 and 104.8 of the Act, although they may refer to other Sections of the Act.
Section 1-6 Safety Commission The Safety Commission will conduct itself according to its adopted Bylaws and Code of Conduct, and these regulations.
ARTICLE 2 ENFORCEMENT OF VIOLATIONS Section 2-1 Enforcement Process The Safety Commission provides these regulations to denote its process for reviewing complaints and conducting hearings. When a person is found to be in violation of the Act and/or these regulations, the Safety Commission will pursue penalties or remedial actions against the person. Section 2-2 Complaints (1) The Safety Commission may review complaints from any person of alleged violations of the Act.
(a) A person who brings a frivolous complaint, as determined by the Safety Commission, commits a minor violation and is subject to a fine.
(b) The person filing the complaint may voluntarily withdraw the complaint prior to a hearing.
(2) The review of a complaint shall be completed by a Review Committee. The Review Committee shall:
(a) Be comprised of three to five members of the Safety Committee.
(b) Have an equal number of members representing excavators and owners/operators.
(c) Include at least one member who does not represent either excavators or owners/operators.
(3) The complaint process shall include:
(a) A complaint form, and if applicable a damage form, being completed and submitted to the Safety Commission.
(b) Within 90 days of the complaint form being received a hearing will be scheduled.
(c) If applicable, the Safety Commission will file a Data Request Form with Colorado 811, to gain ticket information.
Section 2-3 Hearing (1) Hearings shall be conducted in the following manner, unless otherwise directed by the Review Committee:
(a) Presentation of positions - every party to the proceeding shall have the right to present their case by oral and documentary evidence and shall provide eight copies of supporting documentation.
(b) The Review Committee shall utilize the Complaint and (as applicable) Damage Forms the presentations, the response to the Colorado 811 Data Request Form, and their experience in the field in their discussion and finding of facts.
(c) Any member of the Review Committee may ask questions to any person involved in the hearing.
(2) Hearings shall be conducted in the following order, unless otherwise directed by the Review Committee:
(a) Complaint Report # is called.
(b) Presentation of position and submittal of documentation or other material by the person filing the complaint.
(c) Presentation of position and submittal of documentation or other material by the person alleged to be in violation, in the complaint.
(d) Rebuttal by the person filing the complaint.
(e) Questions from the Review Committee to both parties.
(f) Discussion by the Review Committee on the findings of fact and recommendations for remedial action (if applicable).
(3) Maximum time allowed for hearings shall be the following, unless otherwise directed by the Review Committee:
(a) Each party shall have 20 minutes to present their case.
(b) The person filing the complaint shall have five minutes for rebuttal.
(c) The Review Committee shall take as much time as is necessary to ask questions and discuss the complaint.
(4) Burden of Proof (a) The person filing the complaint has the burden to prove by a preponderance of the evidence that the alleged violator committed a violation.
(5) Application of Technical Knowledge (a) The Review Committee may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.
(b) The Review Committee may take notice of general, technical, or scientific facts within its knowledge, but only if the fact so noticed is specified in the record or is brought to the attention of the persons involved in the complaint before final decision and both the person filing the complaint and the person alleged to be in violation is afforded an opportunity to controvert the fact so noticed.
(6) Representation by Counsel (a) Any person permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense, but a person may appear for his or her self.
(b) An attorney who is a witness may not act as counsel for the person calling him or her as a witness.
Section 2-4 Final Decision (1) Review Committee’s Finding of Facts:
(a) After due consideration of written and oral statements, and accompanying documentation, the Review Committee shall determine whether a violation of the law has occurred and, if appropriate, recommend remedial action, or make such determination of the matter as it shall deem appropriate consistent within the Act.
(b) Within seven business days after the completion of the hearing, the Review Committee shall provide to the Safety Commission a report of its findings and recommendations.
(2) Safety Commission’s Final Determination:
(a) The Safety Commission shall review the Review Committee’s findings and recommendations at their next scheduled meeting.
(b) Within 10 business days after the Safety Commission’s meeting to review the Review Committee’s findings and recommendations, the Safety Commission shall provide both parties involved in the complaint a summary of the Review Committee’s findings and the Safety Commission’s final determination with respect to any required remedial action or penalty.
(c) The decision of the Safety Commission is final agency action subject to review by the District Court pursuant to section 24-4-106, CRS.
Section 2-5 Remedial Actions (1) A recommendation of remedial action that includes a fine requires a unanimous vote of the Review Committee.
(2) The Review Committee shall not recommend remedial action or a fine against a Homeowner, Rancher, or Farmer (as defined), unless the Review Committee finds by clear and convincing evidence that a violation of the law has occurred.
(3) The Safety Commission may consider training, support services, or other remediation measures that will improve the behavior of the person found in violation.
(4) Guidance for the recommendation of remedial action shall be consistent with the following principles:
(a) Is the alleged violation classified as a Minor, Moderate or Major violation (as defined).
(b) For a person that has not had a violation in the previous 12 months, the Safety Commission may consider alternatives to fines.
(c) The number of violations, relative to the number of notifications received, are a part of the consideration.
(d) The maximum fines are in Table 2-5.
Table 2-5: Potential Enforcement Penalties Number of Violations within the previous 12 months Type of Violation 1 2 3 4 Frivolous $100 $200 $500 $2,000 Minor $250 $500 $1,000 $5,000 Moderate $1,000 $2,500 $5,000 $25,000 Major $5,000 $25,000 $50,000 $75,000 Section 2-6 Home Rule Entity (1) This enforcement process shall not apply to a home rule county, city and county, municipality, or power authority established pursuant to 29-1-204 (1), CRS; except that if the Safety Commission identifies an alleged violation by the home rule entity, the Safety Commission shall:
(a) Inform the home rule entity of the alleged violation.
(b) If requested by the home rule entity, suggest corrective action.
(2) Every home rule entity described in subsection (1) shall:
(a) Adopt by resolution, ordinance, or other official action either:
(b) Notify the Safety Commission of the decision in subsection (a). ARTICLE 3 BEST PRACTICES (1) The Safety Commission shall advise the Notification Association and other state agencies, the general assembly, and the local government on:
(a) Best practices and training to prevent damage to underground utilities.
(b) Policies to enhance public safety, including the establishment and periodic updating of industry best standards, including marking and documentation best practices and technology advancements.
(c) Policies and best practices to improve efficiency and cost savings to the Colorado 811 program, including the review, establishment, and periodic updating of industry standards, to ensure the highest level of productivity and service for the benefit of both excavators and owners and operators.
____________________________________________________________________________________ Editor’s Notes History New rule emer. rule eff. 02/14/2019.