SB1137 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 40-360.21, Arizona Revised Statutes, is amended to read:

START_STATUTE40-360.21. Definitions

In this article, unless the context otherwise requires:

1. "Abandoned" means no longer in service and physically disconnected from a portion of the facility, or from any other facility, that is in use or still carries service.

2. "Apartment community" means any real property that has one or more structures and that contains five or more dwelling units for rent or lease that are subject to title 33, chapter 10. For the purposes of this paragraph, "dwelling unit" has the same meaning prescribed in section 33-1310.

3. "Building official" means the agency or officer employed by a political subdivision of this state and charged with the administration and enforcement of a building code to regulate the quality, type of material and workmanship of construction of buildings or structures.

4. "Careful and prudent manner" means conducting an excavation in such a way that when the excavation is less than or equal to twenty-four inches from an underground facility that is marked with stakes or paint or in some customary manner, the facility is carefully exposed with hand tools, and the uncovered facility is supported and protected.

5. "Carefully" means acting with reasonable care under the circumstances.

6. "Cross culverts or similar roadway drainage facilities" means transverse drainage structures with both ends or openings visible including box culverts, drainage pipes or other covered structures.

7. "Detectible underground location device" means any device that is installed underground and that is capable of being detected from above ground with an electronic locating device.

8. "Excavation" means any operation in which earth, rock or other material in the ground is moved, removed or otherwise displaced by means or use of any tools, equipment or explosives and includes, without limitation, grading, trenching, digging, ditching, drilling, augering, boring, tunnelling, scraping, cable or pipe plowing and driving.

12. 9. "Homeowners' association" has the same meaning prescribed in section 33-2001.

9. 10. "Implied easement" means any easement or right-of-way on private property required to provide utility services by means of underground facilities in property of the owner requesting such service.

10. 11. "Inactive" means:

(a) That portion of an underground facility that is not in use but is still connected to the facility, or to any other facility, that is in use or still carries service.

(b) A new underground facility that has not been connected to any portion of an existing facility.

11. 12. "Installation records of an underground facility" means maps, drawings, diagrams, surveys, schematics, illustrations, sketches or any other depictions or descriptions of an underground facility that reflect the location at the time of installation of the underground facility and any surface extensions in a reasonably accurate manner.

13. "Interactive positive response system" means an electronic internet-based platform that is administered by a one-call notification center and that enables excavators and underground facilities operators to exchange, record and verify responses and locate status updates and other required communications.

13. 14. "Landlord" has the same meaning prescribed in section 33-1310 for an apartment community and has the same meaning prescribed in section 33-1409 for a mobile home park.

15. "Large project":

(a) means an excavation activity that meets one or more of the following criteria:

(i) The overall project length exceeds one mile of linear excavation or a polygon with an area of a quarter square mile or more.

(ii) The project duration is expected to exceed ninety calendar days.

(iii) The project includes more than ten adjacent land parcels, rights-of-way or easements.

(b) Does not include the on-site development of a new residential or commercial project on a previously undeveloped parcel of land.

16. "Large project notification" means a notice that is filed with a one-call notification center for a large project.

14. 17. "Locator strip" means a type of detectible underground location device that consists of a plastic or other durable material ribbon containing a material capable of being detected from above ground with an electronic locating device and color coded by type of underground facility.

15. 18. "Locator wire" means a type of detectible underground location device that consists of a copper wire or metallic, conductive, noncorrosive trace wire capable of being detected from above ground with an electronic locating device.

16. 19. "Mobile home park" has the same meaning prescribed in section 33-1409.

17. 20. "One-call notification center" means an organization of owners or operators of underground facilities that provides a telephone number notification service for the purpose of receiving and distributing to its members advance notifications from persons regarding planned excavations.

18. 21. "Person":

(a) Means any individual, firm, joint venture, partnership, corporation, association, homeowners' association, municipality, governmental unit, department or agency. and shall include

(b) Includes any trustee, receiver, assignee or personal representative thereof of an entity listed in subdivision (a) of this paragraph.

19. 22. "Routine road maintenance grading" means the routine grading or resurfacing of the concrete, asphaltic or composite surface but not the subbase of a roadway by the this state or a political subdivision of the this state for the purpose of maintaining the surface condition of the road and includes recovery of material from a borrow ditch.

20. 23. "Stakes or paint or in some customary manner" means marking the location of an underground facility by the colors established by the commission. These colors shall be restricted to the underground facility location.

21. 24. "Underground facilities operator" means a public utility, municipal corporation, landlord or other person having the right to bury underground facilities in any public street, alley, right-of-way dedicated to the public use or public utility easement, in any apartment community or mobile home park or pursuant to any express or implied private property easement. Underground facilities operator does not include a homeowner or homeowners' association that owns a sewer facility in a public street, alley, right-of-way dedicated to public use or public utility easement.

22. 25. "Underground facility" means any item of personal property that is buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic or telegraphic communications, electric energy, oil, gas or other substances, and shall include but not be limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments and those portions of poles and their attachments below ground except cross culverts or similar roadway drainage facilities and landscape irrigation systems of two inches in diameter or less.

26. "White lining" means the practice of marking the proposed area of excavation on the ground surface using any of the following:

(a) Paint.

(b) Flags.

(d) Any other method THAT is customarily used.

23. 27. "Working day" means every day excluding Saturday of each week, the fourth Friday in November, Sunday of each week and other legal holidays as prescribed in section 1-301. END_STATUTE

Sec. 2. Section 40-360.22, Arizona Revised Statutes, is amended to read:

START_STATUTE40-360.22. Excavations; determining location of underground facilities; providing information; excavator marking; on-site representative; validity period of markings; liability for misuse of locate requests; detectible underground locating devices; civil penalty; large project coordination

A. A person shall not make or begin any excavation in any public street, alley, right-of-way dedicated to the public use or public utility easement or in any express or implied private property utility easement or in any apartment community or mobile home park without first determining whether underground facilities will be encountered, and if so where they are located from each and every underground facilities operator and taking measures for control of the facilities in a careful and prudent manner. For all excavations in an apartment community or mobile home park, the excavator shall inform the landlord as promptly as practical practicable that the excavator intends to submit an inquiry to the landlord that will trigger the landlord's obligations provided by subsection B of this section and the inquiry itself shall be made by certified mail to the landlord, using a form prepared by a one-call notification center. The inquiry to a landlord may be made by a one-call notification center for a reasonable fee to the excavator.

B. Except as otherwise provided in this subsection or subsection r of this section, upon on receipt of the excavator's inquiry, the underground facilities operator shall respond as promptly as practical practicable, but in no event not later than two working days, by carefully marking such facility with stakes or paint or in some customary manner. A landlord shall respond in the same manner and as promptly as practical practicable, but in no event not later than ten working days. No A person shall may not begin excavating before the location and marking are complete or the excavator is notified that marking is unnecessary. If the excavator consents, an underground facilities operator may notify a one-call notification center that marking is unnecessary pursuant to a method established by the one-call notification center. An underground facilities operator may assign any marking or notification obligations required by this subsection to an agent or servant of the underground facilities operator. An underground facilities operator may shall notify the excavator that marking is unnecessary pursuant to any mutually agreeable method the interactive positive response system.

C. On a timely request by the underground facilities operator, the excavator shall mark the boundaries of the area requested to be excavated in accordance with a color code designated by the commission or by applicable custom or standard in the industry. A request under this subsection for excavator marking does not alter any other requirement of this section.

c. Before an excavation notice is submitted to the one-call notification center, an excavator shall clearly mark with white lining the area that is requested to be excavated in compliance with a color code that is established by the commission or by applicable custom or standard. This subsection:

1. Does not apply to excavations that are performed by a person on residential property that is owned or occupied by the person.

2. except for excavations prescribed in paragraph 1 of this subsection, applies to all excavations, including large projects and excavations on residential properties that are performed by persons who are employed by the homeowner or occupant of the residential property.

D. Except as provided in subsection F of this section, a person shall not begin excavating in any apartment community or mobile home park before the landlord has completed marking the underground facility or the excavator is notified that marking is unnecessary. After underground facility markings are complete or the excavator has received notice that marking is unnecessary, an excavator shall notify the landlord if any of the following conditions exist:

1. Visible and obvious evidence, such as pavement cuts, that would alert a reasonable excavator to the presence of an unmarked underground facility within the boundary of the intended area of excavation.

2. The excavator has concerns regarding the accuracy and meaning of the marks.

3. The excavator encounters an underground facility that has not been marked.

4. The excavator encounters an underground facility that has been incorrectly marked or marked in the wrong location.

E. For every excavation in an apartment community or mobile home park where the excavation method is boring:

1. Every underground facilities operator shall be notified of this methodology.

2. The excavator shall ensure that sufficient clearance is maintained between the bore path and any marked underground facility.

3. The excavator shall visually check the drill head each time it passes through potholes, entrances and exit pits, including during pullback.

4. Each underground facilities operator shall be given a reasonable opportunity to inspect its facility before and during the boring operation.

F. If a landlord fails to respond to an excavator's request in a manner required by this article, an excavator does not violate this article and fulfills the standard of care of a reasonably prudent excavator if the excavator complies with all of the following:

1. One working day before conducting the excavation, the excavator notifies the landlord in writing or by fax that the excavator has determined that the acts or omissions of the landlord is constitute a refusal to respond to an excavator's request.

2. The excavator investigates for the presence of visible and obvious evidence that would alert a reasonable excavator to the presence of an unmarked underground facility within the boundaries of the area to be excavated.

3. The excavator carefully locates all unmarked facilities that are known to exist due to the excavator's investigation performed pursuant to paragraph 2 of this subsection using one of the methods listed in subsection G of this section and carefully marks the facilities with stakes or paint or in some customary manner. In addition, when a landlord provides verbal or written information regarding the location of underground facilities that are within the boundaries of the area to be excavated, the excavator carefully locates all such identified facilities using one of the methods listed in subsection G of this section and carefully marks the facilities with stakes or paint or in some customary manner.

4. The excavator takes measures to control all such located facilities in a careful and prudent manner.

5. The excavator shall not excavate if the excavator receives a response from the landlord that notifies or alerts the excavator to the presence of a mistake or an intention by the landlord to respond in a manner that is consistent with this article, even if the response will be untimely. A landlord's delay, failure to respond to a location request, failure to mark or other noncompliance is not excused by the excavator's or landlord's compliance with this subsection.

G. Except as otherwise provided in this section, in performing the marking required by subsection B of this section, the underground facilities operator of an underground facility installed after December 31, 1988 in a public street, alley or right-of-way dedicated to public use or public utility easement, but not including any express or implied private property utility easement, shall carefully locate the facility by referring to installation records of the facility that are in the possession of the underground facility operator and utilizing one of the following methods:

1. Vertical line or facility markers.

2. Locator strip or locator wire.

3. Signs or permanent markers.

4. Electronic or magnetic location or tracing techniques.

5. Electronic or magnetic sensors or markers.

6. Metal sensors or sensing techniques.

7. Sonar techniques.

8. Underground electrical or radio transmitters.

9. Manual location techniques, including pot-holing.

10. Surface extensions of underground facilities.

11. Any other surface or subsurface location technique that is at least as accurate as the other marking methods in this subsection and that is not prohibited by the commission or by federal or state law. This paragraph does not obligate an underground facilities operator to be aware of and utilize every surface or subsurface location technique available.

H. Except as otherwise provided in this section, for an underground facility other than one installed after December 31, 1988, in a public street, alley or right-of-way dedicated to public use or public utility easement, in performing the marking required by subsection B of this section, the underground facilities operator may refer to installation records or other records relating to the facility to assist in locating the facility and shall carefully locate the facility utilizing one of the methods listed under subsection G of this section.

I. If an underground facilities operator is unable to complete the location and marking within the time period provided by subsection B of this section, the underground facilities operator shall satisfy the requirements of this section by providing prompt notice of these facts to the excavator and assigning one or more representatives to be present on the excavation site at all pertinent times as requested by the excavator to provide facility location services until the facilities have been located and marked or the excavator is notified that marking is unnecessary pursuant to any mutually agreeable method. A person that receives notice from the underground facilities operator of these facts shall not begin excavating before the underground facilities operator has completed marking the underground facility or the excavator is notified that marking is unnecessary. Except as provided in subsection J of this section, the underground facilities operator shall bear all of its own expenses associated with assigning representatives.

J. The marking required by subsection B of this section is valid for fifteen working days from the date of the marking. If the excavation will continue past the validity period of the marks as provided by this subsection, the excavator shall notify the underground facilities operator or an organization designated by the underground facilities operator at least two working days before the end of the validity period. All requests for facility markings and requests to extend the validity period of the markings shall be for the purpose of excavating within the validity period of the markings. An excavator that requests facility markings shall limit the request to an area that can reasonably be excavated within the validity period of the markings. A person who violates this subsection is liable to the one-call notification center and to all affected underground facilities operators for any damages proximately caused by the violation, including economic loss.

K. Nothing in In addition to the preconstruction conference that is required in the large PROJECT notification process, this section shall be construed to does not prevent an excavator and an underground facilities operator from holding a preconstruction conference regarding marking and location of underground facilities and entering into a mutually agreeable written schedule for marking or excavating or written arrangement that may constrain the excavation methods or that may provide for the delivery of installation records to the excavator for the purpose of satisfying the requirements of this section, except that this subsection does not eliminate the excavator's obligation to notify the underground facilities operator to locate and mark excavation sites under subsection B of this section based on the actual construction schedule.

L. For abandoned and apparently abandoned underground facilities:

1. The underground facilities operator shall notify the excavator whether the facility is active or abandoned. An inactive facility shall be considered active for purposes of this subsection. This section does not obligate any person to represent that an underground sewer facility in any public street, alley, right-of-way dedicated to public use or public utility easement is abandoned if it was installed on or before December 31, 2005 and it is not owned by an underground facilities operator of a sewer system. This paragraph does not obligate a landlord to represent that an underground facility in any apartment community or mobile home park is abandoned if it was installed before January 1, 2007.

2. For an underground facility abandoned after December 31, 1988 or covered by installation records prepared under section 40-360.30, the underground facilities operator may not advise or represent to the excavator that a facility or portion of a facility is abandoned unless the underground facilities operator has verified, by reference to installation records or by testing, that the facility or portion is actually abandoned and not merely inactive. For all other abandoned or apparently abandoned underground facilities, each one-call notification center shall establish a method of providing personnel from an underground facilities operator qualified to safely inspect and verify that the facility is abandoned or active. For the purposes of this article, an underground facilities operator shall not represent that an underground facility is abandoned unless the facility has been verified as abandoned pursuant to this subsection.

3. For the purposes of this article, if an excavator encounters an apparently abandoned underground facility, the excavator shall not treat the underground facility as abandoned until the excavator has received notification that the underground facility is abandoned pursuant to paragraph 1 of this subsection or has notified the underground facilities operator of the apparent abandonment and has received verification of abandonment pursuant to paragraph 2 of this subsection.

4. Each one-call notification center may establish a method for reimbursing the verifying underground facilities operator for the expenses incurred under paragraph 2 of this subsection. The reimbursement method shall not include any charge or expense to the excavator. A landlord that fails to advise or represent that an underground facility is abandoned pursuant to paragraph 1 of this subsection, whose underground facility is verified as abandoned pursuant to this subsection and who has not filed information with a one-call notification center is liable to the one-call notification center and to all affected underground facilities operators and excavators for the cost of verifying abandonment together with any damages, including economic loss, proximately caused by the violation.

M. All new and active underground facilities installed in any real property after December 31, 2005 shall be installed with a detectible underground location device unless the facility is capable of being detected from above ground with an electronic locating device or the facility is installed within single family residential property and is beneath a pool, permanent pool decking that is less than forty-eight inches from the pool or a permanent building. A person who violates this subsection is subject to a civil penalty in an amount of not to exceed five thousand dollars more than $5,000. The building official shall administer and enforce this subsection for all underground facilities except those that are installed for a public utility or municipal corporation. Any penalties received by the building official shall be deposited in the municipality's or political subdivision's general fund, as applicable. Except as required by a city, town or county building code or other related code, for purposes of locating an underground facility a building official or political subdivision shall not compel the installation of one or more clean-outs on any underground sewer facility that is owned by another person and serves one customer where any portion of the underground sewer facility is in any public street, alley, right-of-way dedicated to public use, private property or easement.

N. Nothing in This section shall be construed as prohibiting does not prohibit the use of warning tape, warning markers or any other warning device by the underground facilities operator.

O. For every underground facilities operator of a sewer system:

1. For the purposes of this article, an underground facilities operator of a sewer system is responsible for locating and carefully marking the underground sewer facilities owned by another person pursuant to subsection B of this section if those underground facilities are installed after December 31, 2005 and are in any public street, alley, right-of-way dedicated to public use or public utility easement.

2. In performing the marking required by this subsection, the underground facilities operator of the sewer system shall carefully locate the facility by referring to installation records of the facility and by using one of the methods listed in subsection G of this section.

3. This subsection does not obligate an underground facilities operator of a sewer system to locate and mark the underground sewer facilities owned by another person if the customer receiving sewer service from the underground sewer facility refuses 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 in any public street, alley, right-of-way dedicated to public use or public utility easement.

4. This subsection does not obligate an underground facilities operator of a sewer system to maintain, clean or unstop underground sewer facilities owned by another person.

P. For every landlord:

1. For the purposes of this article, each landlord is responsible for marking the underground facilities operated by the landlord pursuant to subsection B of this section. For the purposes of this paragraph, "underground facilities operated by the landlord" includes every underground facility that is in an apartment community or a mobile home park and that:

(a) Discharges into an underground facility that is operated by the landlord.

(b) Is supplied by an underground facility that is operated by the landlord.

2. If a landlord is unable to complete the location and marking within the time period provided by subsection B of this section, the landlord shall satisfy its obligations in the manner provided by subsection I of this section. Nothing in This subsection shall be construed to does not prevent the excavator and the landlord from entering into a mutually agreeable written schedule or written arrangement for satisfying the requirements of this section in the manner provided by subsection K of this section.

3. In performing the marking required by this subsection for an underground facility installed after December 31, 2006, the landlord shall carefully locate the facility by referring to installation records of the facility that are in the possession of the landlord and by using one of the methods listed in subsection G of this section.

4. In performing the marking required by this subsection for an underground facility installed before January 1, 2007, the landlord may refer to installation records or other records relating to the facility to assist in locating the facility and shall locate the facility using one of the methods listed in subsection G of this section.

5. Subject to the availability of monies, landlords may apply for grants from a grant account established for the purpose of meeting the standards prescribed by this article and for the purpose of creating installation records for facilities that are not required to be created or maintained by this article.

6. Notwithstanding any other provision in this article, a landlord is not liable for any costs or expenses, including damage to third parties, resulting from damage to an underground sewer facility owned by the landlord and located within a public right-of-way if the damage was not caused by either:

(a) The landlord’s or tenant’s actions.

(b) The landlord’s or tenant’s refusal to grant access to the operator of the sewer system that connects to the landlord’s underground sewer facility.

7. This article does not obligate a landlord to locate and mark a facility owned by a tenant if the tenant owns the mobile home, the tenant refuses to grant permission to the landlord to access the mobile home and the facility cannot be located without accessing the mobile home.

8. Any rule, regulation, lease or agreement that purports to obligate a tenant to perform the landlord's obligations required by this article is against the public policy of this state and is void.

9. This subsection does not obligate a landlord to maintain, clean or unstop underground facilities owned by another person.

Q. All inquiries and notices to a landlord shall be made to the address on file at a one-call notification center. Notwithstanding any other law, if the landlord has not filed information at the one-call notification center, the excavator does not violate this article and fulfills the standard of care of a reasonably prudent excavator if the excavator makes the inquiry or notice to the property owner of record according to the records of the county assessor in the county in which the property is located.

r. An excavator that proposes to perform a large project shall notify a one-call notification center as soon as possible but not less than fifteen business days or twenty-one calendar days before the proposed start date to schedule a large project coordination meeting. The large project notification to a one-call notification center initiates a meeting between the excavator and the underground facilities operator to:

1. Identify the proposed plan for marking request notifications.

2. Evaluate any potential underground facility conflicts.

3. Establish a marking schedule.

4. Discuss any other protective measures that are appropriate to the scope and duration of the large project.

s. An excavator that requests a large project coordination meeting as prescribed in subsection r of this section shall provide the following information to the one-call notification center:

1. The type of work to be performed.

2. The complete geographic scope.

3. The proposed phased plan for marking notifications within the complete geographic scope of the large project.

4. The proposed start date.

5. The expected completion date.

6. A proposed meeting date, time and length for scheduling a meeting with the affected underground facility operators.

t. On receipt of the large project notification from the excavator, the underground facilities operator shall:

1. Confirm the underground facilities operator's intent to attend the meeting as soon as possible but not later than two business days after receiving the large project notification.

2. identify any expected conflicts related to the underground facilities that may occur within the complete geographic scope of the large project.

3. Determine the resources and time frames THAT are necessary to complete markings based on the excavator's proposed phase plan for marking notifications.

u. The following apply to the large project coordination meeting:

1. The meeting may be on-site or virtual. The excavator may indicate whether the meeting should take place on-site or virtually based on the discretion of the excavator. If virtual, the excavator shall provide a link to join the meeting. If on-site, the excavator may use the meeting to complete white lining.

2. At the meeting, the excavator and the underground facilities operator shall establish a schedule for marking, excavation, remarking and other protective measures that are appropriate to the scope and duration of the large project. The excavator and the underground facilities operator shall agree on the quantity of tickets and the geographic area that the tickets will cover. The excavator will follow the plan for ticket creation that was agreed to at the meeting.

3. The underground facilities operator has fifteen business days from the date the excavator notifies the one-call notification center to locate and mark the geographic area. This time frame may be extended if agreed on by the excavator in the interactive positive response system.

v. The one-call notification center shall provide the interactive positive response system, which is a tool for communication between the excavator and the underground facilities operator for the status of locating sites, work updates, changes in scheduling and other factors that may impact the large project.

w. The excavator and the underground facilities operator may agree to a phased marking schedule that provides for timely and accurate markings of active work areas as submitted by the excavator within the marking request. Compliance with an agreed phased schedule is deemed compliance with the notice and marking requirements of this article. Any changes to the agreed phased schedule shall be communicated and agreed to by the excavator and the underground facilities operator through the interactive positive response system.

x. The one-call notification center is responsible for developing a process for underground facilities operators, excavators and designers to use the interactive positive response system to administer large project notifications, including ticket request procedures, coordination meeting standards and recordkeeping requirements.

y. If the excavator and underground facilities operator do not mutually agree on a marking schedule, the markings shall be completed within fifteen business days.

z. The validity period for the markings and the ticket refresh procedures prescribed in subsection j of this SECTION applies to both large PROJECT tickets and standard excavation notice tickets. END_STATUTE

Sec. 3. Section 40-360.23, Arizona Revised Statutes, is amended to read:

START_STATUTE40-360.23. Conducting excavation in careful, prudent manner; liability for negligence; notice; obliteration of marks

A. Except as otherwise provided in section 40-360.28, subsection E, obtaining information as required by this article does not excuse any person making any excavation from doing so in a careful and prudent manner, nor shall it excuse such persons from liability for any damage or injury resulting from their negligence.

B. Except as otherwise provided in section 40-360.22, subsection D, after markings have been made pursuant to section 40-360.22, an excavator shall notify either the underground facilities operator or an organization designated by the underground facilities operator if the excavator encounters an underground facility that has not been located and marked or has been marked in the wrong location.

C. An excavator or an underground facilities operator shall not move or obliterate markings made pursuant to this article or fabricate markings in an unmarked location for the purpose of concealing or avoiding liability for a violation of or noncompliance with this article.

D. An excavator may begin excavating after the excavator contacts and receives all of the affected underground facility owners' responses through the interactive positive response system. An underground facilities operator shall enter all locate status information, including marked, no conflict or delayed into the interactive positive response system within the time required by this article. An underground facilities operator's duty to mark is satisfied by compliance with a large project plan as prescribed in section 40-360.22. END_STATUTE

Sec. 4. Section 40-360.26, Arizona Revised Statutes, is amended to read:

START_STATUTE40-360.26. Damage of underground facility; liability to owner; homeowner and tenant exemption

A. If any underground facility is damaged by any person in violation of this article as a result of failing to obtain information as to its location, failing to take measures for protection of the facilities or failing to excavate in a careful and prudent manner, the person is liable to the owner of the underground facility for the total cost of the repair of the facility.

B. A homeowner or homeowners' association engaging in excavating in an express or implied private property utility easement across property owned by the homeowner or homeowners’ association is not liable to the owner or operator of the underground facility that is damaged by the homeowner or homeowners' association pursuant to this section if the damaged underground facility is not buried or placed below ground in accordance with the applicable standards, if the underground facility is not located within the easement or if the homeowner or homeowners' association engaged in the excavation has complied with section 40-360.22. This subsection does not apply to any person who is employed by a homeowner or a homeowners' association including a contractor licensed pursuant to title 32, chapter 10 or a person engaging who engages in contracting without a license as prohibited by section 32-1151.

C. Notwithstanding any other provision in this article, a homeowner is not liable for any costs or expenses, including damage to third parties, resulting from damage to an underground facility that is 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. A tenant is not liable for any costs or expenses, including damage to third parties, resulting from damage to an underground facility that is owned by the tenant but located within a mobile home park if the damage was not caused by the tenant's actions or by the tenant's refusal to grant permission to the landlord to access the mobile home for the purpose of ascertaining the location of the underground facility.

D. An excavator that complies with an agreed large project schedule pursuant to section 40-360.22 and that uses the interactive positive response system for all communications required under this article is deemed to have satisfied the excavator's duty to request and maintain markings under this article for the portion of the project covered by the large project schedule. END_STATUTE

Sec. 5. Section 40-360.28, Arizona Revised Statutes, is amended to read:

START_STATUTE40-360.28. Civil penalty; liability

A. Except as provided in section 40-360.22, subsection M, a person who violates any provision of this article is subject to a civil penalty in an amount of not to exceed five thousand dollars more than $5,000 to be imposed by the court in favor of the state. Any penalties received by the state shall be deposited in the state general fund.

B. If a violation of this article results in damage to an underground facility, the violator is liable to all affected underground facilities operators and excavators for all resulting damages proximately caused by the violations, including economic loss.

C. If a person violates this article by failing to provide timely notice as required by this article, by failing to respond in the time and manner provided by this article or by failing to locate and mark an underground facility in the manner provided by this article, the person is liable to all affected underground facilities operators and excavators for all damages proximately caused by the violation, including economic loss.

D. Notwithstanding any other law, a violation of section 40-360.22, subsection D or subsection L, paragraph 3 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.

E. If a landlord or an excavator complies with the duties set forth in sections 40-360.22, 40-360.30 and 40-360.32 for all facilities operated by a landlord as provided in section 40-360.22, subsection P, paragraph 1, the person is not liable for any death or injury to persons or property or for any economic loss to any person to the extent the conduct is regulated by this article. This section does not excuse any landlord or excavator from liability for any death or injury to persons or property or for any economic loss to any person to the extent the injury or loss does not arise from the conduct regulated by this article.

F. This section is not applicable does not apply to an excavation made:

1. During an emergency which that involves immediate danger to life, health or property if reasonable precautions are taken to protect underground facilities.

2. In agricultural operations or for the purpose of finding or extracting natural resources.

3. With hand tools on property owned or occupied by the person performing the excavation while gardening or tilling such property.

G. An underground facilities operator or an excavator may be subject to a civil penalty as provided by this section if the underground facilities operator or the excavator fails:

1. To notify the one-call notification center at least two business days before beginning excavation.

2. To comply with a large PROJECT ticket coordination plan.

3. To adhere to the requirements of the interactive positive response system. END_STATUTE

Sec. 6. Title 40, chapter 2, article 6.3, Arizona Revised Statutes, is amended by adding section 40-360.33, to read:

START_STATUTE40-360.33. Corporation commission; rulemaking; one-call notification center

The commission, in consultation with the one-call notification center and impacted stakeholders, shall:

1. Adopt rules to implement this article that include all of the following:

(a) Procedures for large PROJECT tickets.

(b) Mandatory white lining.

2. Establish minimum technical and data security standards for the interactive positive response system. END_STATUTE

Sec. 7. Corporation commission; rulemaking; one year

The corporation commission shall adopt rules to implement this act within one year after the effective date of this act.