(a) Any person who violates this chapter, or the rules adopted under this chapter, shall be subject to a civil penalty as follows:
Terms Used In Alabama Code 37-15-10
- authority: The Underground Damage Prevention Authority created under Section 37-15-10. See Alabama Code 37-15-2
- AUTHORITY BOARD: The Underground Damage Prevention Board created under Section 37-15-10. See Alabama Code 37-15-2
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- damage: Includes, but is not limited to, the substantial weakening of structural or lateral support of an underground facility, penetration or destruction of any underground facility's protective coating, housing, or other protective device, and the severance (partial or complete) of any underground facility, but does not apply to any operator's abandoned underground facility. See Alabama Code 37-15-2
- Dependent: A person dependent for support upon another.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- excavator: Any person who engages in excavation. See Alabama Code 37-15-2
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Misdemeanor: Usually a petty offense, a less serious crime than a felony, punishable by less than a year of confinement.
- operator: Any person, governmental agency, or political subdivision, or its agents, who owns or operates a public or private underground facility which furnishes services, information, or materials, or transports or transmits electric energy, light, water, steam, oil, gases, gas, mixture of gases, petroleum, petroleum products, hazardous or flammable liquids, toxic or corrosive fluids and gases, or items of like nature, and telecommunications, cable television, water, drainage, sewage, or other systems of like nature. See Alabama Code 37-15-2
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- person: An individual, joint venture, partnership, association, authority, cooperative, firm, corporation, governmental entity, or any subdivision or instrumentality of that entity and its employees, agents, or legal representatives. See Alabama Code 37-15-2
- property: includes both real and personal property. See Alabama Code 1-1-1
- state: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Alabama Code 1-1-1
- UNDERGROUND FACILITY: Any cable, pipeline, duct, wire, conduit, or other similar installation, installed underground or underwater, by which an operator transports or delivers materials, information, or services. See Alabama Code 37-15-2
- WILLFUL NONCOMPLIANCE: The intentional refusal or failure to perform, or comply with, a duty created or imposed by this chapter or by the rules adopted pursuant to this chapter. See Alabama Code 37-15-2
(1) For a first violation, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed five hundred dollars ($500) per incident, or both.
(2) For a second or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter or pay a civil penalty in an amount not to exceed one thousand dollars ($1000) per incident, or both.
(3) For a third or subsequent violation within a 12-month period, the violator shall complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed three thousand dollars ($3,000) per incident.
(4) Notwithstanding this subsection, if any violation was the result of gross negligence or willful noncompliance, the violator shall be required to complete a course of training concerning compliance with this chapter and pay a civil penalty in an amount not to exceed ten thousand dollars ($10,000) per incident.
(b) Any person who is required to complete a course of training under this section shall be responsible for paying for the cost of the training. For those instances in which training is ordered, if the person is a firm, partnership, association, corporation, limited liability company, joint venture, department, or subdivision of the state or other governmental entity or any other body or organization, it may be required that at least one manager or supervisor thereof attend any training.
(c) The penalties provided under this section may be subject to periodic review by the authority board and revised by rule as needed to ensure enforcement penalties are deemed effective and are in compliance with federal law.
(d) The amount of such penalties shall be dependent upon the degree of non-compliance, the amount of injury or damage caused, the degree of threat to public safety, the degree of public inconvenience caused as a result of the violation, and the number of past violations. Mitigation of the penalty may be shown by good faith efforts of the violator to have complied with this chapter.
(e) All penalties recovered in such actions shall be paid into the Underground Damage Prevention Fund. Any monies remaining in the Underground Damage Prevention Fund at the end of the fiscal year shall not revert to the General Fund, but shall remain in the Underground Damage Prevention Fund for the exclusive use of the authority. The expenditures of monies in the Underground Damage Prevention Fund shall be at the discretion of the authority board to carry out its duties under this chapter. Excess funds shall be used to support public awareness programs and training and education of excavators, operators, locators, and other persons to reduce the number and severity of violations of this chapter.
(f) This chapter does not affect any civil remedies for personal injury or property damage or criminal sanctions except as otherwise specifically provided for in this chapter.
(g) Evidence of findings of fact, civil penalties, or any of the actions or proceedings pursuant to this chapter shall not be admissible in any other civil causes of actions related to the excavation or damage for which the penalty or fine was issued; however, these materials are discoverable in civil actions arising from the facts herein. This chapter does not limit any person’s right to pursue any additional civil remedy otherwise allowed by law.
(h) No civil penalty may be imposed pursuant to this section against an excavator or operator who violates any provision of this chapter if the violation occurred while the excavator or operator was responding to an emergency. Notwithstanding the foregoing, the civil penalty shall be imposed if the violation was willful or malicious.
(i) This section shall not be construed to limit any provision of law granting governmental immunity to state or local entities or to impose any liability or duty of care not otherwise imposed by law upon any state or local entity.
(j) Any person who willfully or maliciously removes or otherwise destroys a marking used by an operator to mark the location of any underground facility, except in the ordinary course of excavation, is guilty of a Class C misdemeanor.