ARIZONA STATE SENATE
Forty-seventh Legislature, Second Regular Session
FINAL AMENDED
FACT SHEET FOR H.B. 2222
underground facility marking; technical correction
(NOW: underground facilities; landlords)
Purpose
Specifies, beginning January 1, 2007, requirements for underground facilities in apartment communities and mobile home parks and makes various changes to the underground facilities statutes.
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.
Beginning in 1990, public utilities, municipal corporations and underground facility owners were required to be members of a one-call notification center, either statewide or serving each county in which the entity had underground facilities. Arizona Blue Stake, Inc., is a not-for-profit corporation formed by member utility owners to comply with the statutory requirement. After a person identifies the excavation site, the excavator calls Arizona Blue Stake to request that the underground facilities of the site be located and marked. Arizona Blue Stake sends a notice to all of the utility companies with the information about the request. The owners of the underground facilities have two working days to respond. The companies will either mark their underground facilities by the proper means or let the person know that there is no conflict for their utility. Markings are valid for 15 working days. The Arizona Corporation Commission (ACC) enforces the use of the one-call notification center for all utilities.
Changes were made in 2005 to require all new and active underground facilities installed after December 31, 2005, to include a detectable underground location device. Laws 2005, Chapter 222 also requires underground facility operators to locate and mark sewer facilities installed after December 31, 2005, that are owned by another person. Underground facilities operators include a public utility, municipal corporation or other person that has a right to bury underground facilities in any public street, alley, right-of-way dedicated to the public use or utility easement and does not include a homeowner who owns a sewer facility.
There is no anticipated fiscal impact to the state General Fund associated with this measure.
Provisions
Underground Facilities in Apartment Communities and Mobile Home Parks
1. Requires a landlord to deliver to the buyer or transferee of an apartment community or of a mobile home park:
a) all available plans, drawings and records pertaining to the location of all underground facilities in the property or the mobile home park.
b) all plans, drawings, surveys and plats of the property or park.
c) all records pertaining to tenant security deposits.
d) complete files for each tenant containing rental agreements.
2. States a landlord is liable for damages caused by the landlord’s failure to deliver reasonably accurate and maintained installation records of underground facilities installed after December 31, 2006, including expenses incurred by successor landlords to create such installation records.
3. Requires every underground facilities operator to be notified that an excavation in an apartment community or mobile home park is done by boring and specifies requirements for the boring.
4. Makes a landlord an underground facilities operator.
5. Prohibits a person from excavating in any apartment community or mobile home park without first determining whether underground facilities will be encountered.
6. Requires an excavator to inform the landlord of an apartment community or mobile home park that the excavator intends to submit an inquiry to the landlord that will require the landlord to carefully mark underground facilities. Requires the inquiry to be made by certified mail using a form prepared by the one-call notification center.
7. Allows the inquiry to a landlord by an excavator to be made by the one-call notification center for a reasonable fee to the excavator.
8. Requires a landlord to mark underground facilities upon receipt of an excavator’s inquiry as promptly as practical, but no later than ten working days.
9. Prohibits a person from beginning excavation in any apartment community or mobile home park before the landlord has marked the underground facility or the excavator is notified that marking is unnecessary.
10. Requires an excavator to notify the landlord if any of the following conditions exists:
a) visible and obvious evidence that would alert a reasonable excavator to the presence of an unmarked underground facility within the boundary of the intended area of excavation.
b) the excavator has concerns regarding the accuracy and meaning of the marks.
c) the excavator encounters an underground facility that has not been marked, has been incorrectly marked or has been marked in the wrong location.
11. States, if a landlord fails to respond to an excavator’s location or marking request, an excavator does not violate the underground facilities requirements and fulfills the standard of care of a reasonably prudent excavator if the excavator complies with all of the following:
a) one working day before conducting the excavation the excavator notifies the landlord in writing that the excavator has determined that the acts or omissions of the landlord are a refusal to respond to an excavator’s request.
b) investigates for the presence of visible and obvious evidence to the presence of an unmarked underground facility.
c) locates and marks all unmarked facilities that are known to exist due to the excavator’s investigation and due to the verbal or written information provided by the landlord.
d) takes measures to control all located underground facilities in a careful and prudent manner.
e) does not excavate if the excavator receives a response from the landlord that alerts the excavator to the presence of a mistake or an intention by the landlord to respond, even if the response will be untimely.
12. States a landlord’s delay, failure to respond to a location request, failure to carefully mark or other noncompliance is not excused by the excavator’s or landlord’s compliance with the requirements listed in provision number 11.
13. States a landlord is not obligated to represent that an underground facility in an apartment community or mobile home park is abandoned if it was installed before January 1, 2007.
14. Makes apartment community or mobile home park landlords responsible for marking the underground facilities operated by the landlord.
15. Requires a landlord that is unable to locate and mark underground facilities within ten working days to assign a representative to be present at the excavation to provide facility location services.
16. Allows a landlord to enter into a mutually agreeable written schedule or arrangement in a preconstruction conference with an excavator.
17. Requires a landlord, for underground facilities installed after December 31, 2006, to carefully locate the facility by referring to installation records of the facility and using specified methods to locate the facility.
18. Allows a landlord to apply for grants from a grant account that is established to meet the underground facilities standards and to create installation records for facilities that are not required to be created or maintained.
19. Prohibits a landlord from being liable for any costs or expenses resulting from damage to an underground sewer facility owned by the landlord and located within the public right-of-way if the damage was not caused by the landlord’s or a tenant’s actions or refusal to grant access to the operator of the sewer system.
20. States a landlord is not obligated to locate and mark a facility owned by a tenant if the tenant who owns the mobile home refuses to grant permission to access the home and the facility cannot be located without accessing the home.
21. Voids any rule, regulation lease or agreement that purports to obligate a tenant to perform the landlord’s obligations for underground facilities and states it is against the public policy of the state.
22. States a landlord is not obligated to maintain, clean or unstop underground facilities owned by another person.
23. Requires a landlord to prepare and maintain installation records of the underground facilities installed after December 31, 2006, in the apartment community or mobile home park.
24. Requires successor landlords to maintain installation records that come into their possession.
One-Call Notification Center
25. Requires a landlord, without charge to the landlord, to file contact information with a one-call notification center.
26. Requires a landlord to update any contact information within seven working days after a change occurs.
27. States an excavator is not in violation of the underground facilities statutes if the excavator makes an inquiry of or gives notice to the property owner of record according to the county assessor if a landlord fails to file contact information with a one-call notification center.
28. Requires persons whose contact information is on file with a one-call notification center to be readily available during the hours of contact on file, which are required to total at least 30 hours per week.
29. Deems a landlord to have knowledge of a one-call notification filing requirements ten working days after a copy of the requirements is sent by certified mail to the property owner of record.
30. Requires all inquiries and notices to a landlord to be made to the address on file with a one-call notification center unless the landlord has not filed information and then the notice may be made to the property owner of record according to the county assessor’s records.
31. Changes a person’s liability to a one-call notification center for a violation of validity period requirements from being liable for any resulting damages, costs and expenses to being liable for any resulting damages proximately caused by the violation, including economic loss.
32. Allows, instead of requires, a one-call notification center to establish a method for reimbursing the verifying underground facilities operator for expenses incurred for verifying abandoned facilities that does not include a charge to the excavator.
33. Makes a landlord liable to a one-call notification center and to all affected underground facilities operators and excavators if the landlord fails to advise or represent that an underground facility is abandoned that has been verified as abandoned and the landlord has not filed information with the one-call notification center. A landlord is liable for the cost of verifying abandonment together with any resulting damages, including economic loss.
34. Allows a one-call notification center to apply for grants from a grant account established for the purpose of maintaining and imparting information supplied to it from the landlords.
35. States the information that may be contained in the form prepared by a one-call notification center for landlords.
Violations of the Underground Facilities Statutes
36. Prohibits a homeowner from being liable for any costs or expenses resulting from damage to an underground facility owned by the homeowner but located within a public right-of-way if the damage was not caused by the homeowner’s actions or by the homeowner’s refusal to grant permission to the underground facilities operator of a sewer system to access the real property for the purpose of ascertaining the location of the underground sewer facility.
37. Prohibits a tenant from being liable for any costs or expenses resulting from damage to an underground facility owned by the tenant but located within a mobile home park if the damage was not caused by the tenant’s actions or by a tenant’s refusal to grant permission to the landlord to access the home to ascertain the location of the underground facility.
38. Allows any affected underground facilities operator, instead of the owner of the facility only, to commence an action to have an act or omission stopped regarding violations of the underground facilities statutes.
39. States a prevailing party in an action brought to have any act or omission stopped and prevented is entitled to recover reasonable attorney fees. If the prevailing party is a one-call notification center, the center is entitled to recover reasonable administrative costs and expenses.
40. States a violator of the underground facilities statutes is liable to all affected underground facilities operators and excavators for all resulting damages proximately caused by the violations, including economic loss.
41. States a person is liable to all affected underground facilities operators and excavators for all resulting damages, including economic loss, for a violation of the underground facilities statutes by failing to provide timely notice, failing to respond in the required time period or by failing to locate and mark an underground facility.
42. Allows an affected underground facilities operator, a harmed excavator or a one-call notification center to commence an action against a landlord to have acts or omissions stopped or prevented by the landlord for violations of the underground facilities requirements.
43. States a violation of the marking and excavation requirements in an apartment community or mobile home park or a violation of the treatment of apparently abandoned facilities is a superseding event that breaks the chain of causation for any damages that could result from an underground facilities operator’s failure to accurately locate or mark an underground facility.
44. States a landlord or an excavator that complies with the underground facilities requirements for facilities operated by a landlord is not liable for any death or injury to persons or property or for any economic loss.
Inspection Installation Records
45. Specifies the information in installation records for the design of construction projects in specified areas may only be obtained to minimize delays of construction projects.
46. Requires information in installation records to be made available on a confidential basis to those involved in the design of construction projects in specified areas.
47. Removes the requirement that an underground facilities operator determines the appropriate manner and form for providing information from installation records.
48. States the underground facilities operator is not liable to any person for damages arising from any person’s inspection of or reliance on the installation records provided to persons engaged in the design of construction projects.
49. Allows the underground facilities operator to charge a reasonable fee to provide information relating to the nature and location of underground facilities to an authorized person in a manner other than stipulated in statute.
Miscellaneous
50. States the ability of underground facilities operators to locate an underground facility by any surface or subsurface location technique that is at least as accurate as the other methods does not obligate an operator to be aware of and utilize every location technique available.
51. Prohibits a person from beginning excavation if the person receives notice that an underground facilities operator is unable to complete the location and marking of the facilities until the operator has completed the marking or the excavator is notified that marking is unnecessary.
52. Allows an excavator to be liable for damage to or repair of underground facilities if representatives of the facilities operator are assigned to provide facility location services and the excavator was acting under the representative’s direction.
53. Allows a preconstruction conference regarding marking and location of underground facilities to include a schedule or agreement that constrains the excavation methods or that may provide for the delivery of installation records to the excavator.
54. 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.
55. Requires underground facilities to be carefully located and marked.
56. Prescribes legislative intent.
57. Makes technical and conforming changes.
58. Prescribes definitions.
59. Modifies the definition of “careful and prudent manner.”
60. Becomes effective on January 1, 2007.
Amendments Adopted by Committee
· Adopted the strike everything amendment.
Amendments Adopted by Committee of the Whole
1. States a landlord is liable for damages caused by the landlord’s failure to deliver reasonably accurate and maintained installation records of underground facilities installed after December 31, 2006.
2. Reinstates the ability of underground facilities operators to locate facilities by any technique that is at least as accurate as other specified methods and specifies facilities operators are not obligated to be aware of and utilize every technique available.
3. 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.
4. States an excavator is not in violation of the underground facilities statutes if the excavator makes an inquiry of or gives notice to the property owner of record according to the county assessor if a landlord has not filed contact information with a one-call notification center.
5. Removes the provisions that make a landlord liable for all damages incurred by an excavator as a result of the excavator’s actions to locate and control facilities when a landlord fails to respond to a request to locate and mark facilities.
6. States a violation of the marking and excavation requirements in an apartment community or mobile home park or a violation of the treatment of apparently abandoned facilities is a superseding event that breaks the chain of causation for any damages that could result from an underground facilities operator’s failure to accurately locate or mark an underground facility.
7. Requires successor landlords to maintain installation records that come into their possession.
8. Makes changes to the information filed by a landlord to a one-call notification center and requires a landlord to be available at least 30 hours per week.
9. Allows a one-call notification center to apply for grants from a grant account to maintain landlord information.
10. States the information that may be contained in the form prepared by a one-call notification center for landlords.
11. Prescribes legislative intent.
12. Delays the effective date to January 1, 2007.
13. Makes technical and conforming changes.
Amendments Adopted by Conference Committee
· Makes technical changes.
Senate Action House Action
CED 3/29/06 DPA/SE 7-0-1-0 CMMA 2/14/06 DPA/SE 11-0-0-1
3rd Read 4/17/06 28-0-2-0 3rd Read 2/27/06 40-16-4-0
Final Read 5/3/06 29-0-1-0 Final Read 5/2/06 44-12-4
Signed by the Governor 5/8/06
Chapter 258
Prepared by Senate Research
June 2, 2006
BP/jas