Colorado state law regarding excavation requirements has caught the attention of landscaping contractors and other contractors who move the earth in any way. Although statutory utility notification requirements have existed for a number of years, the civil penalties for failing to comply with the law have recently been increased substantially. 

The stated purpose of the legislation is to prevent injury to persons and damage to property from accidents resulting from damage to underground facilities by excavation. Excavation is defined as “any operation in which earth is moved or removed by means of any tools, equipment, or explosives and includes auguring, backfilling, ditching, drilling, grading, plowing-in, pulling-in, ripping, scraping, trenching and tunneling.”  Landscape contractors in particular are advising their customers that they will not be able to take any action that results in moving the earth without obtaining a utility locate; however, the notification requirements will apply to any contractor who performs any work that falls within the definition of excavation.  In the case of landscapers, such activities include, but are not limited to, aerating, planting, and repairing sprinklers.
 
Why has this become such an issue recently if the utility notification procedure has been place for a number of years?  The statute was amended in 2000.  There were several changes, including a substantial increase in the civil penalties for violating the statute.  If an excavator fails to follow the notification procedure and damages underground utilities, the statute now authorizes fines of $5,000 for the first offense and up to $25,000 for each subsequent offense within a twelve-month period. Substantial fines have been levied and publicized resulting in more attention to the statutory requirements.
 
How long does it take to get a utility locate?  The contractor performing the excavation work is required to notify the Utility Notification Center of Colorado (“UNCC”) at least two business days, not including the date of notice,  prior to the date the excavation work is to commence.  (If the contractor notifies the UNCC on Monday, the contractor should be able to commence work on Thursday.)
 
What happens if the locate is not done within the two day time period?  Under the terms of the statute, if information requested and needed is not provided by the owner of the underground facility within two business days, or such later time as agreed upon by the excavator and the owner or operator of the underground facilities, the excavator must immediately give notice to the UNCC or the owner or operator of the underground facility.  The excavator may then proceed and shall not be liable for damage except upon proof of the excavator’s lack of reasonable care.  However, UNCC notes that the purpose of the legislation is to prevent injury to persons and property and the purpose of the second notification is to have the locate done immediately; therefore, the UNCC recommends that the excavator wait a reasonable period of time before commencing the excavating activity.
 
Should the association notify the UNCC when it needs a utility locate?  Generally the UNCC will accept calls from property owners; however, such calls will not relieve the excavator of its statutory obligations; therefore, efforts by the association in advance of their contractor may not save any time.
 
What if we have an emergency that needs immediate attention?  The statute defines “emergency situations” as including the following: “ruptures and leakage of pipelines, explosions, fires, and similar instances where immediate action is necessary to prevent loss of life or significant damage to underground facilities and advance notice of proposed excavation is impracticable under the circumstances.”  Most landscaping work is not likely to fall within the category of an “emergency situation.”  The UNCC advises, however, that an excavator may request a one day locate.  Although there is no penalty for failure to comply, underground facility owners and operators are encouraged to cooperate with such requests, if possible.
 
Since state law requires the excavator to have the underground facilities located and the excavator is liable for fines, does the association have anything to be concerned about?  Read your contract carefully.  Many contracts include indemnification provisions requiring the association to reimburse the contractor for any liability of the contractor.  The association should generally avoid any indemnification provisions, but particularly indemnification provisions that may result in the association assuming liability for such fines.  Associations may also want to include a requirement that the contractor comply at all times with all federal, state, municipal and other governmental ordinances and regulations.

Additional Information. 
For more information, you may want to review the UNCC web site located at www.uncc2.org.  The phone number for utility locates is 1/800-922-1987.  The administrative number for UNCC (not for utility locates) is (303) 232-1991.  The statute may be found at C.R.S. §9-1.5-101 et seq.

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