§ 37-12-306 — Civil penalties; applicability

(a) An action to recover a civil penalty under this
section may be brought by an operator, excavator, aggrieved
party, the notification center, county attorney, district
attorney or the attorney general. Venue for an action shall be
in the district court for the county in which the operator,
excavator, aggrieved party or the notification center resides or
maintains a principal place of business in this state or in the
county in which the conduct giving rise to a civil penalty
occurred. The action provided in this subsection may be by jury
trial if a jury is demanded by either party.
(b) In determining the liability for or the amount of any
damages or civil penalty pursuant to this section, a court shall
consider the nature, circumstances and gravity of the alleged
violation, the alleged violator's degree of culpability and the
alleged violator’s history of prior violations.
(c) The penalties provided in this section are in addition
to any other remedy available at law or equity.
(d) No civil penalty shall be imposed under this section
against an excavator or operator who violates any of the
provisions of this article if the violation occurred while the
excavator or operator was responding to a service outage or
other emergency, except that such penalty shall be imposed if
such violation was willful or malicious.
(e) This section shall not apply to any governmental
entity as defined by W.S. 1-39-103(a)(i), which participates in
the notification center as provided by this act. Nothing in
this article shall affect any provision of the Wyoming
Governmental Claims Act, W.S. 1-39-101 through 1-39-120.
(f) Any civil penalty received under subsection (g) or (h)
of this section shall be deposited into the county public school
fund of the county in which the violation occurred.
(g) With respect to operators:
(i) Every operator in Wyoming shall join and
participate in the notification center pursuant to W.S. 37-12-
304(a). Any operator who does not join or participate in the
notification center shall be liable for a fine of five thousand
dollars ($5,000.00) each year it is not in compliance with this
subsection;
(ii) If any underground facility located in the
service area of an operator is damaged as a result of the
operator's failure to join or participate in the notification
center pursuant to W.S. 37-12-304(a), the court shall impose
upon such operator a civil penalty up to the amount of five
thousand dollars ($5,000.00) for the first offense and up to
twenty-five thousand dollars ($25,000.00) for a second offense
within a twelve (12) month period after the first offense. If
any underground facility located in the service area of an
operator is damaged as a result of the operator's failure to
join or participate in the notification center pursuant to W.S.
37-12-304(a) on more than two (2) separate occasions within a
twelve (12) month period from the date of the first failure to
comply with W.S. 37-12-304(a), then the civil penalty shall be
up to seventy-five thousand dollars ($75,000.00). Upon a first
offense, the operator may be required by the court to complete
an excavation safety training program with the notification
center;
(iii) If any underground facility is damaged as a
result of the operator's failure to comply with W.S. 37-12-
304(a), the operator's failure to use reasonable care in the
marking of the damaged underground facility or the operator's
failure to mark the location of its underground facilities
within the time period specified in W.S. 37-12-302(d) unless
that failure is due to circumstances beyond the operator's
control, the operator shall be liable for:
(A) Any cost or damage incurred by the excavator
as a result of any delay in the excavation project while the
underground facility is restored, repaired or replaced, together
with reasonable costs and expenses of suit, including reasonable
attorney fees; and
(B) Any injury or damage to persons or property
resulting from the damage to the underground facility. The
operator shall also indemnify and defend the affected excavator
against any and all claims or actions, if any, for personal
injury, death, property damage or service interruption resulting
from the damage to the underground facility.
(iv) If an operator, after receipt of a notice from
an excavator or notification center pursuant to W.S. 37-12-
302(c), fails to mark the location of its underground facilities
within the time period specified in W.S. 37-12-302(d), and
unless the failure resulted from circumstances beyond the
operator's control, the operator shall be liable for a civil
penalty of up to five thousand dollars ($5,000.00).
(h) With respect to excavators:
(i) Every excavator shall notify the notification
center pursuant to W.S. 37-12-302(c) prior to commencing any
excavation activity. Any excavator who fails to notify the
notification center pursuant to W.S. 37-12-302(c) shall be
liable for a civil penalty in the amount of five thousand
dollars ($5,000.00);
(ii) If an excavator fails to comply with W.S. 37-12-
302(c), (g) or (h) and damages an underground facility during
excavation, the excavator shall be liable for a civil penalty up
to the amount of five thousand dollars ($5,000.00) for the first
offense and up to twenty-five thousand dollars ($25,000.00) for
a second offense within a twelve (12) month period after the
date of the first offense. If an excavator fails to comply with
W.S. 37-12-302(c), (g) or (h) on more than two (2) separate
occasions within a twelve (12) month period from the date of the
first failure to comply with the appropriate subsection, then
the civil penalty shall be up to seventy-five thousand dollars
($75,000.00). Upon a first offense, the excavator may be
required to complete an excavation safety training program with
the notification center;
(iii) If an excavator requests a facilities locate on
an expedited basis (less than two (2) full business days) for an
emergency excavation and the excavation at issue was not an
emergency and did not require a locate on an expedited basis,
the excavator shall be liable for a civil penalty of up to five
thousand dollars ($5,000.00) for each false emergency locate
incident;
(iv) If an excavator fails to comply with W.S. 37-12-
302(c), (g) or (h) and damages an underground facility during an
excavation, or fails to exercise reasonable care in excavating
and damages a located underground facility during an excavation,
the excavator shall be liable for:
(A) Any cost or damage incurred by the operator
in restoring, repairing or replacing its damaged underground
facility, together with reasonable costs and expenses of suit,
including reasonable attorney fees; and
(B) Any injury or damage to persons or property
resulting from the damage to the underground facility. The
excavator shall also indemnify and defend the operator against
any and all claims or actions, if any, for personal injury,
death, property damage or service interruption resulting from
the damage to the underground facility.
(v) Subparagraph (iv)(A) of this subsection shall not
apply to an excavator if the operator of the underground
facility has failed to comply with W.S. 37-12-302(d) or
37-12-304(a).
(j) Any provision of an agreement or release that requires
an excavator or an operator who has suffered damage or loss due
to a violation of this act to indemnify the violator for
penalties is unenforceable with respect to any obligation to
indemnify the violator for the penalties.