Underground Facility Protection Program

In July of 2017 House Bill (HB) 365 became law.   HB365 requires 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, oversite falls to the federal government.   Under the federal program, civil penalties had the possibility of being extremely high ($250,000 - $2,000,000 per incident), so it was important to implement a program that would assume authority over the issuance of civil penalties.   A state program would ensure the civil penalties would be effective to promote and maintain safe excavation, while also being more reasonable to the industry in Montana.  Having a state agency in charge of enforcement was a major requirement of the Pipeline and Hazardous Materials Safety Administration (PHMSA).

When an underground facility is damaged during excavation, facility owners file incident reports with DLI.  DLI 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.  The Department will not accept any disputes submitted outside of the time allowed.  It is important to note that the following disputes are not accepted:

  • The underground facility was buried too shallow, or too deep.  Underground facilities are 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.
  • The damage occurred by "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.
  • I did not request relocates on my own property because I know the locate marks/flags did not move.  Even though property owners are more familiar with their own property than professional excavators might be, the law does not differentiate between property owners and professional excavators with respect to whom must call for relocates.  Both property owners and professional excavators much call for relocates 30 days after the date of the executed ticket.  
  • We were careful, and not negligent.  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.  

 

Click here to view the program's statutes

Click here to view the program's administrative rules