Assigned to CED                                                                                                         AS PASSED BY THE SENATE

ARIZONA STATE SENATE

Forty-seventh Legislature, Second Regular Session

AMENDED

FACT SHEET FOR H.B. 2708

underground facilities; marking procedures.

Purpose

            Prohibits a city or county from requiring the installation of additional clean-outs above that required by city or county building code for the purpose of locating an underground facility and makes changes to the underground facilities statutes regarding homeowners’ associations.

Background

Statute prohibits a person from beginning any excavation in any public street, alley, right-of-way dedicated to the public use or utility easement or on any express or implied private property utility easement unless the person has determined whether underground facilities will be encountered and, if so, where they are located from each and every public utility, municipal corporation or other person having the right to bury the underground facilities.  The person is required to take measures for control of those facilities in a careful and prudent manner.  

Underground facilities include pipes, sewers, conduits, cables and wires used to connect to the storage or conveyance of water, sewage, telephonic or electronic communications, oil and gas. Prior to 2005, an underground facility also included landscape irrigation systems of one inch in diameter or less located in dedicated public rights-of-way or a state highway.  The definition of underground facility was amended by Laws 2005, Chapter 222, to state that landscape irrigation systems of two inches in diameter or less are underground facilities and removed the requirement that the irrigation system be in specified areas, expanding the types of facilities that are subject to the underground facilities requirements and requiring the underground facilities operators to then locate and mark these facilities. According to the Homebuilders’ Association of Central Arizona, this expansion of the definition of underground facility subjects homeowners’ associations of condominium and planned communities to the underground facilities statutes.  H.B. 2708 states that homeowners’ associations are not underground facilities operators and not subject to operator requirements.

Statute requires that in order for an underground facility to be marked, the facility must be located utilizing one of eleven different methods, including the use of vertical line or facility markers, locator wire, signs, or surface extensions of underground facilities. Additionally, all new underground facilities installed after December 31, 2005, are required to be installed with a detectible underground location device.  According to the Home Builders’ Association of Central Arizona, some cities have begun requiring builders to install additional clean-outs on underground sewer facilities above that required by building code as surface extensions to allow municipalities to locate the underground facilities. H.B. 2708 prohibits a city or county from requiring the installation of additional clean-outs above that required by city or county building code for the purpose of locating an underground facility.

            There is no anticipated fiscal impact to the state General Fund associated with this measure.

Provisions

1. Prohibits, except as required by city or county building code,  a building official or political subdivision from compelling the installation of one or more clean-outs on any underground sewer facility that is owned by another person and that serves one customer for the purpose of locating an underground facility.

2. States a homeowners’ association that owns a sewer facility in a public street, alley, right-of-way dedicated to public use or utility easement is not an underground facilities operator and therefore not subject to underground facility operator requirements.

3. Requires a homeowners’ association to determine where underground facilities are located from each underground facilities operator and take measures to control the facilities prior to excavation.

4. Exempts a homeowners’ association excavating in an express or implied private property utility easement across property owned by the homeowners’ association from liability to the owner or operator of the underground facility that is damaged by the homeowners’ association if the underground facility is not buried properly, the facility is not located within the easement or the homeowners’ association has complied with excavation requirements.

5. States the liability exemption for damage to underground facilities by a homeowner or homeowners' association does not apply to any person employed by a homeowner or a homeowners’ association including a licensed or unlicensed contractor.

6. Requires an underground facilities operator to carefully mark underground facilities.

7. Exempts underground facilities installed within single family residential property that are beneath a pool, permanent pool decking or a permanent building from the requirement that the facilities be installed with a detectible underground location device.

8. Defines “homeowners’ association.”

9. Makes technical and conforming changes.

10. Becomes effective on the general effective date.

Amendments Adopted by Committee

1. Adds an exemption from liability for a homeowners' association excavating in an express or implied private property utility easement under specified circumstances.

2. States the liability exemption for damage to underground facilities by a homeowner or homeowners' association does not apply to any person employed by a homeowner or a homeowners’ association.

3. Removes the provision regarding the use of installation records by sewer system underground facilities operators.

4. Makes technical and conforming changes.

Amendments Adopted by Committee of the Whole

· Exempts underground facilities installed within single family residential property that are beneath a pool, permanent pool decking or a permanent building from the requirement that the facilities be installed with a detectible underground location device.

House Action Senate Action

FMPR             2/15/06            W/D                            CED                3/29/06     DPA     5-2-1-0

COM               2/15/06            W/D                            3rd Read         4/17/06                  19-9-2-0

TRANS           2/16/06            DPA    5-3-0-1

3rd Read         3/9/06                          55-2-3-0

Prepared by Senate Research

April 21, 2006

BP/ac