The Underground Facility Protection Program was created In July of 2017 when House Bill (HB) 365 became law. HB365 required the State of Montana Department of Labor and Industry (DLI) to have a program in place that monitors, maintains records, and issues civil penalties for incidences where underground facilities were damaged during excavation.
Without an effective state program in place, oversight falls to the federal government. Under the federal program, civil penalties had the possibility of being extremely high, so it was important to implement a program that would assume authority over the issuance of civil penalties. A state program makes sure the civil penalties would be effective to promote and maintain safe excavation, while also being more reasonable to the industry in Montana. The Pipeline and Hazardous Materials Safety Administration (PHMSA) is the federal program that exercises enforcement actions against excavators who damage pipelines in states that do not have a program in place.
When an underground facility is damaged during excavation, facility owners file incident reports with DLI. The department then shall issue a civil penalty to the responsible party. It is important to note that this is a civil penalty rather than a criminal charge.
Those receiving a civil penalty have the option under the law to dispute the penalty, in writing. within 20 days of the date the civil penalty was assessed. Disputing the civil penalty requires that you provide documentation to uphold your side of the dispute. The Department will not accept any disputes submitted outside of the time allowed.
FREQUENTLY ASKED QUESTIONS
- What if the facility that was damaged was buried too shallow or too deep? Underground facilities are expected to be buried to regulation depth at the time they are installed. Over time, due to a wide variety of factors, the depth of a facility can change. Excavators must not base their excavation activities on their perceived depth of the underground facility. Further, excavators must hand dig using non-mechanized equipment inside
of the tolerance zone; 18 inches on either side of the locate marks.
- What if the General Contractor (or others) called in the locate ticket for me? The excavator doing the work must be the one that calls for locates. When the excavator on the project communicates directly with the locator(s) better results are achieved due to the excavator being familiar with the project and the job proposed. Penalties will not be dismissed in cases where the excavator involved in the damage is not the one whose name shows on the locate ticket.
- Why does the civil penalty letter state I was not careful or prudent or was negligent? I feel I was none of those things. There are approximately a dozen violation types defined in the law. When the facility owner files an incident report with DLI, they must select the most appropriate violation type. The violation type of "Did not excavate in a careful and prudent manner or was negligent" is selected when the locate marks were accurate and damage occurred anyway.
- I have received a civil penalty from the Department of Labor and I received a repair bill for the damage. Why am I being charged twice? The requirement in law to assess a civil penalty and the facilities bill for repair of damage are two different and separate charges. Per 69-4-523, MCA unless damage was due to inaccurate locates the excavator who caused the damage is liable for the entire cost of repair to the facility; and paying the civil penalty is not an admission of liability or a bar to other appropriate civil remedies. 69-4-524, MCA requires the payment of the civil penalty by the excavator that caused the damage.
- I received a civil penalty letter but was not notified by the facility owner that the incident had been filed as required by 69-4-529(1)(ii), MCA. Do I still have to pay the penalty? Yes. It has been determined that even though the law states that the facility owner is to notify the excavator that an incident report has been filed; the facility owner’s failure to do so does not negate the fact that damage was done. Regardless of whether the facility owner has notified the excavator the civil penalty is still valid and must be paid.
- What if I followed all regulations and still damaged the facility on accident? "Accident" is not defined in the law. It is the responsibility of the excavator to protect the underground facility during excavation. The law does not allow for accidents or mistakes.
- How long is a locate ticket valid for? A person or company performing excavation must call for re-locates after 30 days. Even when the locate marks still appear to be visible on the ground the law requires that a homeowner or professional excavator performing excavation call for re-locates after 30 days.
- What does it mean to “dispute” the civil penalty? If you feel that you were not at fault for the damage to the facility you can request to dispute the civil penalty. A disputed penalty goes before the Underground Facility Protection Program Advisory Council for mediation. The council reviews information from both the excavator and the facility owner and makes a recommendation to the Department to dismiss or uphold the civil penalty.
- Can I dispute a civil penalty against me as the excavator when the reason I damaged the facility is because the locate marks were not accurate? Yes, you can dispute the civil penalty. You must have pictures or proof showing the marks were inaccurate for the penalty to be dismissed.
- What if the locate marks were inaccurate (more than 18” from actual facility location)? When an incident report is filed noting that the locate marks were not accurate or were not completed within 2 days the civil penalty is assessed against the facility owner. If a civil penalty is assessed against the excavator and the excavator claims the locate marks were inaccurate they can dispute the civil penalty (see FAQ #9)
- How can I learn more about safe excavation in Montana? You can access the Montana 811 website at montana811.org for information and how to use the “One Call” system. Montana 811 also provides access to the Excavation Safety Handbook . The handbook is a compilation of information from a variety of sources. The handbook is intended to provide guidelines for safe excavation, particularly involving underground utilities. You can obtain an electronic copy of the handbook or request hard copy handbooks be sent to you by visiting the Montana 811 website. You can also contact Clint Kalfell with Montana 811 at (406) 442-3070 or clint.kalfell@Montana811.org for questions or to request training.
Click here to view the program's statutes
Click here to view the program's administrative rules