TITLE 25 FIRE PROTECTION AND SAFETY

Section 9. Blasting or Excavating Near Utility Facilities, 25-9-1 through 25-9-13.

ARTICLE 2 AIRPORT FIREFIGHTERS

25-9-13. Penalties for violations of chapter; bonds; enforcement; advisory committee; dispose of settlement recommendations.

1. Any person who violates the requirements of subsection (a), (f), or (g) of Code Section 25-9-6 and whose subsequent excavating or blasting damages utility facilities or sewer laterals shall be strictly liable for:
   1. All costs incurred by the facility owner or operator in repairing or replacing its damaged facilities; and
   2. Any injury or damage to persons or property resulting from damaging the utility facilities and sewer laterals.
2. Each local governing authority is authorized to require by ordinance any bonds on utility contractors or on persons performing excavation or blasting within the public right of way or any dedicated utility easement as it may determine to assure compliance with subsection (a) of this Code section.
3. Any person who violates the requirements of Code Section 25-9-6 and whose subsequent excavating or blasting damages utility facilities or sewer laterals shall also indemnify the affected facility owner or operator against all claims or costs incurred, if any, for personal injury, property damage, or service interruptions resulting from damaging the utility facilities and sewer laterals. Such obligation to indemnify shall not apply to any county, city, town, or state agency except as permitted by law.
4. In addition to the other provisions of this Code section, a professional licensing board shall be authorized to suspend or revoke any professional or occupational license, certificate, or registration issued to a person pursuant to Title 43 whenever such person has repeatedly violated the requirements of Code Section 25-9-6 or 25-9-8.
5. Subsections (a), (c), and (d) of this Code section shall not apply to any person who shall commence, perform, or engage in blasting or in excavating with mechanized equipment on any tract or parcel of land in any county in this state if the facility owner or operator to which notice was given respecting such blasting or excavating with mechanized equipment as prescribed in subsection (a) of Code Section 25-9-6 has failed to comply with Code Section 25-9-7 or has failed to become a member of the UPC as required by Code Section 25-9-5.
6. The enforcement provisions of this Code section shall not apply to any person who shall commence, perform, or engage in blasting or in excavating with mechanized equipment within the curb lines or edges of the pavement of any public road and who causes damage to a utility facility located within the roadway hard surface or the graded aggregate base therein if such person has complied with the provisions of this chapter and there is no indication that a utility facility is in conflict with the proposed excavation.
7. The commission shall enforce the provisions of this chapter. The commission may promulgate any rules and regulations necessary to implement the commission's authority to enforce this chapter.
8. 1. The Governor shall appoint an advisory committee consisting of persons who are employees or officials of or who represent the interests of:
      1. One member to represent the Department of Transportation;
      2. One member to represent water systems or water and sewer systems owned or operated by local governing authorities;
      3. One member to represent the utilities protection center;
      4. One member to represent water systems or water and sewer systems owned or operated by counties;
      5. One member to represent water systems or water and sewer systems owned or operated by municipalities;
      6. One member to represent the nonmunicipal electric industry;
      7. Five members to represent excavators to include the following:
9. One licensed utility contractor;

   The commission chairperson or his or her designee shall serve as chairperson of the advisory committee and shall cast a vote only in the case of a tie. Persons appointed to the advisory committee shall have expert knowledge of this chapter and specific operations expertise with the subject matter encompassed by the provisions of this chapter.

10. All civil penalties ordered by the commission and collected pursuant to this Code section shall be deposited in the general fund of the state treasury.

One licensed general contractor;

One licensed plumber;

One landscape contractor; and

One highway contractor;

One member to represent locators;

One member to represent the nonmunicipal telecommunications industry;

One member to represent the nonmunicipal natural gas industry;

One member to represent municipal gas, electric, or telecommunications providers; and

The commission chairperson or such chairperson's designee.

The advisory committee shall establish rules of operation including an attendance policy. In the event a committee member resigns or fails to meet the criteria of the attendance policy, the advisory committee shall appoint an interim member to represent the same stakeholder group until such time as the Governor appoints a replacement.

The advisory committee shall assist the commission in the enforcement of this chapter, make recommendations to the commission regarding rules and regulations, and perform duties to be assigned by the commission including, but not limited to, the review of reported violations of this chapter and the preparation of recommendations to the commission as to the appropriate penalties to impose on persons violating the provisions of this chapter.

The members of the advisory committee shall be immune, individually and jointly, from civil liability for any act or omission done or made in the performance of their duties while serving as members of such advisory committee, but only in the absence of willful misconduct.

(1)Commission enforcement of this chapter shall follow the procedures described in this subsection. Nothing in this subsection shall limit the authority of the commission delegated from the federal government and authorized in other state law.

(A) The commission is not authorized to impose civil penalties on any local governing authority except as provided in this paragraph. The commission may recommend training for local governing authorities in response to any probable or proven violation. Civil penalties may be recommended for or imposed on any local governing authority for refusal to comply with the requirements of Code Section 25-9-7 or for other violations of Code Section 25-9-7 that result in injury to people, damage to property, or the interruption of utility service in the event that investigators find that a local governing authority has demonstrated a pattern of willful noncompliance. Civil penalties may be recommended or imposed on or after January 1, 2006, for violations of provisions of this chapter other than Code Section 25-9-7 in the event that investigators find that the severity of an excavation violation warrants civil penalties or that a local governing authority has demonstrated a pattern of willful noncompliance. Any such civil penalty shall be recommended or imposed in accordance with a tiered penalty structure designed for local governing authorities. In the event that the investigators determine that a local governing authority has made a good faith effort to comply with this chapter, the investigators shall not recommend a civil penalty. For purposes of this subsection "refusal to comply" means that a utility facility owner or operator does not respond in PRIS to a locate request, does not respond to a direct telephone call to designate their facilities, or other such direct refusal. Refusal to comply does not mean a case where the volume of requests or some other mitigating circumstance prevents the utility owner or operator from locating in accordance with Code Section 25-9-7.

No later than January 1, 2006, the advisory committee shall recommend to the commission for adoption a tiered penalty structure for local governing authorities. Such structure shall take into account the size, annual budget, gross receipts, number of utility connections and types of utilities within the territory of the local governing authority. Such penalty structure shall also take into account the number of locate requests received annually by the local governing authority, the number of locate codes made annually to the local governing authority from the UPC, the number of utility customers whose service may have been interrupted by violations of this chapter, and the duration of such interruptions. Such penalty structure shall also consider the cost of compliance. The penalty structure shall establish for each tier the maximum penalty per violation and per 12 month period at a level to induce compliance with this chapter. Such maximum penalty shall not exceed $5,000.00 per violation or $50,000.00 per 12 month period for the highest tier.

If commission investigators find that a probable violation has occurred, they may recommend training in lieu of penalties to any person for any violation. The commission shall provide suggestions for corrective action to any person requesting such assistance. Commission investigators shall make recommended findings or offers of settlement to the respondent.

Any respondent may accept or disagree with the settlement recommended by the investigators. If the respondent disagrees with the recommended settlement, the respondent may dispute the settlement recommendation to the advisory committee. The advisory committee shall then render a recommendation either supporting the investigators' recommendation, rejecting the investigators' recommendation, or substituting its own recommendation. With respect to an investigation of any probable violation committed by a local governing authority, any recommendation by the advisory committee shall be in accordance with the provisions of paragraph (2) of this subsection. In its deliberations the advisory committee shall consider the gravity of the violation or violations; the degree of the respondent's culpability; the respondent's history of prior offenses; and such other mitigating factors as may be appropriate. If the advisory committee determines that a respondent has made a good faith effort to comply with this chapter, the committee shall not recommend civil penalties against the respondent. To the extent that a respondent does not accept a settlement agreement or request to dispute the recommendation of the investigators to the advisory committee, the respondent shall be assigned to a hearing officer or administrative law judge.

If any respondent disagrees with the recommendation of the advisory committee, after notice and hearing by a hearing officer or administrative law judge, such officer or judge shall make recommendations to the commission regarding enforcement, including civil penalties. Any such recommendations relating to a local governing authority shall comply with the provisions of paragraph (2) of this subsection. The acceptance of the recommendations by the respondent at any point will stop further action by the investigators in that case.

When the respondent agrees with the advisory committee recommendation, the investigators shall present such agreement to the commission. The commission is then authorized to adopt the recommendation of the advisory committee regarding a civil penalty, or to reject such a recommendation. The commission is not authorized to impose a civil penalty greater than the civil penalty recommended by the advisory committee or to impose any civil penalty if the advisory committee does not recommend a civil penalty.

The commission may, by judgment entered after a hearing on notice duly served on any person not less than 30 days before the date of the hearing, impose a civil penalty not exceeding $10,000.00 for each violation, if it is proved that the person violated any of the provisions of this chapter as a result of a failure to exercise additional care in accordance with subsection (d) of Code Section 25-9-8 or reasonable care in accordance with other provisions of this chapter. Any such recommendations relating to a local governing authority shall comply with the provisions of paragraph (2) of this subsection. Any proceeding or civil penalty undertaken pursuant to this Code section shall neither prevent nor preempt the right of any party to obtain civil damages for personal injury or property damage in private causes of action except as otherwise provided in this chapter.

(Code 1981, §25-9-13, enacted by Ga. L. 1986, p. 1069, § 1; Ga. L. 1989, p. 495, § 1; Ga. L. 1990, p. 805, § 1; Ga. L. 2000, p. 780, § 1; Ga. L. 2000, p. 1706, § 19; Ga. L. 2005, p. 1142, § 10/SB 274; Ga. L. 2014, p. 652, § 7/SB 117; Ga. L. 2014, p. 866, § 25/SB 340; Ga. L. 2015, p. 5, § 25/HB 90.)

The 2014 amendments. The first 2014 amendment, effective July 1, 2014, rewrote this Code section. The second 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, deleted "(h)" at the beginning of subdivision (h)(2)(A).

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, revised language in the introductory language of subsection (a).