§ 54-5-854 — Project plans - Copies - Marking, approval, and changes - Liability - Civil penalties

(a) When the department is informed of the existence of utility facilities pursuant to § 54-5-853 , it shall provide each owner with a set of complete project plans either by providing the owner with a paper copy or a digital copy. The plans may be transmitted by hand delivery or return receipt mail, or by electronic transmission of a digital copy. Digital copies shall be in the format, and subject to such restrictions on use, as the department may specify. (b) Within one hundred twenty (120) calendar days following the receipt of the plans, the owner shall mark on the plans, or on a copy of the plans, the approximate vertical and horizontal locations of underground utility facilities, approximate horizontal location of above-ground utility facilities, a description of each of its existing utility facilities and any proposed new location of the facilities and additional facilities within all rights-of-way shown on the project plans, and prepare a plan and a schedule of calendar days to accomplish the proposed new location. The project plans, or a copy of the plans, and the plan and schedule of calendar days, shall be returned to the department in care of the person whose name and address are listed on the project plans. Should coordination with other owners be required in order for an owner to prepare a plan and schedule of calendar days, or should changes to the project plans cause the utility to alter its relocation plan or schedule, then additional time shall be allowed, but in no case shall the additional time exceed the original one hundred twenty (120) calendar days by more than an additional forty-five (45) calendar days. (c) (1) After the owner has submitted its plan and schedule of calendar days, the department may approve them if reasonable, or the department may otherwise reasonably direct the owner to install, relocate or adjust its utility facilities in accordance with an approved plan and schedule of calendar days. The department shall communicate approval or direction to the owner via certified mail. (2) The department shall establish the date on which the owner may begin the installation, relocation or adjustment of its utility facilities, and the owner shall be given reasonable advance notice of the date by certified mail via a notice to proceed. The owner shall be free to order the required materials associated with the proposed utility relocation or adjustment at this time. No owner shall be notified to begin installation, relocation or adjustment until all health, governmental, and environmental regulatory agencies have approved the submitted plan where applicable. (3) In the event the department and the owner fail to agree on a reasonable plan and schedule of calendar days to install, relocate or adjust the utility, the owner may proceed with the approved schedule under a reservation of rights notice to the department. The notice shall be filed within ten (10) days of the issuance of a notice to proceed by the department. The notice shall contain the owner's objections to the relocation schedule and shall state the reasons for the objections. The reservation of rights shall become a part of the administrative record for any subsequent contested case. If any subsequent contested case results in a revised plan and schedule of calendar days, then any penalty under subsections (g) and (h), shall be determined on the basis of the revised schedule. (d) After the owner has completed the installation, relocation or adjustment, or any part of the installation, relocation or adjustment, and the department requires any additional relocation or adjustment, the department shall reimburse the owner for the cost incurred. (e) The department shall give its contractor and the owner notice of any change in highway construction that would require any additional relocation or adjustment and the owner shall be given an agreed reasonable time to accomplish the work. In addition, the department shall reimburse the owner for the costs of all materials that have been purchased in association with the utility relocation or adjustment that cannot be utilized as a result of the change in the project. (f) The department's contractor shall be liable for any damages negligently inflicted to the owner's utility facilities occurring during the time provided in the schedule of calendar days for installation, relocation or adjustment, or during the approved time for any additional relocation or adjustment. (g) If any owner fails to comply with and implement this section, the contractor, with the consent of the department, may then undertake construction without liability to the owner for damages to the owner's utility facilities, and in addition, the owner shall be liable to the department's contractor for damages resulting from the failure. (h) (1) (A) If the owner fails to complete the required installation, relocation or adjustment of its utility facilities within the approved schedule of calendar days as approved by the department, the commissioner of transportation shall have the authority to assess and collect from the owner a civil penalty in the amount of five hundred dollars ($500) for each calendar day after the scheduled completion date that the owner fails to complete the required installation, relocation or adjustment. Owners having less than three thousand (3,000) customers shall be subject to the assessment of a civil penalty not to exceed two hundred fifty dollars ($250) per calendar day when the owner fails to complete the required installation, relocation or adjustment of its utility facilities within the approved schedule of calendar days. (B) The failure of another owner to sufficiently complete its required installation, relocation or adjustment of utilities that interferes with the owner's relocation plan shall constitute an affirmative defense to the assessment of a civil penalty pursuant to this section. (2) Notwithstanding any provision of this subsection (h) to the contrary, no civil penalty shall be assessed for delays that result from catastrophic weather events or acts of God. (3) During the course of the utility relocation phase of the project, each owner that is installing, relocating or adjusting its utility facilities shall furnish the department and all other such owners with monthly progress reports regarding the status of the relocation of its utility facility, until its relocation is completed. It shall be sufficient to comply with this subsection (h) if the owner regularly reports progress during the course of pre-construction meetings held by the contractor and the department. The content of the reports shall be reflected in the minutes of the meetings and the minutes shall constitute the monthly progress report required under this subdivision (h)(3), whether or not the meetings are held on a monthly basis. (4) The department shall give the owner written notice of the intent to assess a civil penalty and the opportunity to appear before the commissioner or the commissioner's designee to show cause why the penalty should not be assessed. Upon finding that a civil penalty should be assessed, the commissioner or the commissioner's designee shall issue an appropriate order to the owner. If the civil penalty has not been paid in full within ninety (90) days after the entry of the order, the matter shall be turned over to the attorney general and reporter for collection, and the owner shall be liable for all expenses associated with the enforcement action, including court costs and attorneys' fees. (5) Appeals of any decision to assess a civil penalty pursuant to this section shall be undertaken pursuant to the normal procedures for appeal of agency decisions in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. (6) The moneys collected as civil penalties under this subsection (h) shall be paid into the fund set aside for the utility relocation loan program established under § 67-3-901 .

Legislative History

Acts 1988, ch. 517, § 4; 1999, ch. 452, §§ 1 - 6; 2002, ch. 675, § 1; 2012, ch. 602, § 1.