9-1.5-104.2. Underground damage prevention safety commission – creation – review of violations – enforcement – rules. (1) (a) There is hereby created the underground damage prevention safety commission in the department of labor and employment. The safety commission is transferred to the department by a type 2 transfer as that term is defined in section 24-1-105. The safety commission shall:
(I) Advise the notification association and other state agencies, the general assembly, and local governments on:
(A) Best practices and training to prevent damage to underground utilities;
(B) Policies to enhance public safety, including the establishment and periodic updating of industry best standards, including marking and documentation best practices and technology advancements; and
(C) Policies and best practices to improve efficiency and cost savings to the 811 program, including the review, establishment, and periodic updating of industry best standards, to ensure the highest level of productivity and service for the benefit of both excavators and owners and operators; and
(II) Review complaints alleging violations of this article 1.5 involving practices related to underground facilities and order appropriate remedial action or penalties.
(b) The safety commission and the notification association shall enter into a memorandum of understanding to facilitate implementation and administration of this section and sections 9-1.5-104.4, 9-1.5-104.7, and 9-1.5-104.8. The memorandum of understanding must include provisions outlining the roles and responsibilities of the safety commission regarding statewide enforcement and the roles and responsibilities of the notification association in administering the notification association as outlined in section 9-1.5-105.
(c) Notwithstanding the powers and duties assigned to the safety commission, this section and section 9-1.5-104.4 do not apply to a home rule county, city and county, municipality, or power authority established pursuant to section 29-1-204 (1), and nothing in this article 1.5 authorizes the safety commission to impose a penalty on or enforce a recommendation or remedial action regarding an alleged violation of this article 1.5 against a home rule county, city and county, municipality, or power authority; except that:
(I) The safety commission shall:
(A) Inform a home rule county, city and county, municipality, or power authority of an alleged violation of this article 1.5; and
(B) At the request of the applicable home rule county, city and county, municipality, or power authority, suggest corrective action; and
(II) Nothing in this subsection (1)(c) prohibits a home rule county, city and county, municipality, or power authority from participating in proceedings of the safety commission.
(d) The governing body of a home rule county, city and county, municipality, or power authority established pursuant to section 29-1-204 (1) shall adopt by resolution, ordinance, or other official action either:
(I) Its own damage prevention safety program similar to that established pursuant to this article 1.5; or
(II) A waiver that delegates its damage prevention safety program to the safety commission.
(2) (a) The governor shall appoint the following fifteen members of the safety commission, taking into consideration nominations made pursuant to this subsection (2)(a), subject to consent by the senate:
(I) One individual nominated by Colorado Counties, Inc., to represent counties;
(II) One individual nominated by the Colorado Municipal League to represent municipalities;
(III) One individual nominated by the Special District Association of Colorado to represent special districts;
(IV) One individual nominated by Colorado’s energy industry to represent energy producers;
(V) One individual nominated by the Colorado Contractors Association to represent contractors;
(VI) Two individuals nominated by the excavator members of the notification association to represent excavators;
(VII) One individual nominated by the American Council of Engineering Companies of Colorado to represent engineers;
(VIII) One individual nominated by investor-owner utilities to represent investor-owner utilities;
(IX) One individual nominated by the Colorado Rural Electric Association to represent rural electric cooperatives;
(X) One individual nominated by the Colorado Pipeline Association to represent pipeline companies;
(XI) One individual nominated by the Colorado telecommunications and broadband industry to represent telecommunications and broadband companies;
(XII) One individual nominated by the Colorado Water Utility Council to represent water utilities;
(XIII) One individual nominated by the department of transportation to represent transportation; and
(XIV) One individual nominated by the commissioner of agriculture who is actively engaged in farming or ranching.
(b) The governor shall make initial appointments by January 1, 2019. The members’ terms of office are three years; except that the initial term of one of the members appointed pursuant to:
(I) Subsections (2)(a)(I) to (2)(a)(V) of this section is one year; and
(II) Subsections (2)(a)(VI) to (2)(a)(X) of this section is two years.
(c) Within six months after its creation, the safety commission shall adopt bylaws and provide for those organizational processes that are necessary to complete the safety commission’s tasks.
(d) The safety commission may promulgate rules to implement this section and sections 9-1.5-104.4, 9-1.5-104.7, and 9-1.5-104.8 and may revise the rules as needed.
(3) The safety commission shall meet at least once every three months. The safety commission shall operate independently of the notification association; however, the notification association and the department of labor and employment shall provide administrative support to the safety commission in performing its duties as outlined in this section.
(4) The safety commission may review complaints of alleged violations of this article 1.5. Any person may bring a complaint to the safety commission regarding an alleged violation. A person who brings a frivolous complaint, as determined by the safety commission, commits a minor violation and is subject to a fine as authorized by section 9-1.5-104.4.
(5) To review a complaint of an alleged violation, the safety commission shall appoint at least three and not more than five of its members as a review committee. The review committee must include the same number of members representing excavators and owners or operators and at least one member who does not represent excavators or owners or operators. A safety commission member who has a conflict of interest with regard to a particular matter shall recuse himself or herself from serving on a review committee with regard to that matter.
(6) (a) Before reviewing a complaint, the review committee shall notify the person making the complaint and the alleged violator of its intent to review the complaint and of the opportunity for both parties to participate. The notification must include the hearing date for the complaint, which must be scheduled for a date within ninety days after the date on which the safety commission received the complaint, and a statement that the parties may submit written or oral comments at the hearing. The hearing date can be postponed by mutual agreement of the parties to a date that is acceptable to the review committee. The complaining party may voluntarily withdraw the complaint prior to a hearing by the review committee. The safety commission shall promulgate rules governing the conduct of hearings under this section.
(b) The review committee shall determine whether a violation of the law has occurred and, if appropriate, recommend remedial action consistent with the guidance developed pursuant to section 9-1.5-104.4 (2). A recommendation of remedial action that includes a fine requires a unanimous vote of the review committee. The review committee shall not recommend remedial action or a fine against a homeowner, rancher, or farmer, as defined in section 42-20-108.5, unless the review committee finds by clear and convincing evidence that a violation of the law has occurred. Within seven business days after the completion of the hearing, the review committee shall provide to the safety commission in writing a report of its findings of facts, its determination of whether a violation of the law has occurred, and any recommendation of remedial action or penalty.
(7) The safety commission is bound by the review committee’s findings of fact and decision, but the safety commission may adjust the review committee’s recommendation of remedial action or penalty if an adjustment is supported by at least twelve members of the safety commission. Within ten business days after the safety commission meeting to review the findings and recommendations of the review committee, the safety commission shall provide in writing to the person making the complaint and the alleged violator a summary of the review committee’s findings and the safety commission’s final determination with respect to any required remedial action or penalty. The decision of the safety commission is final agency action subject to review by the district court pursuant to section 24-4-106.
(8) If a decision by the safety commission involves a fine authorized by section 9-1.5- 104.4, the safety commission shall invoice for and collect the fine indicating that a violation of this article 1.5 has been committed by a person or involving the underground facilities of a person. The safety commission may enforce the fine assessed under this article 1.5 as provided in section 24-30-202.4.
(9) (a) If a person does not comply with the safety commission’s decision, the safety commission, represented by the attorney general, may enforce this article 1.5 by bringing an action in the Denver district court. In an action brought by the safety commission pursuant to this section, the court may award the safety commission all costs of investigation and trial, including reasonable attorney fees fixed by the court.
(b) Any costs incurred by the safety commission as a result of administering this article 1.5, including legal services, shall be paid from the safety commission fund created in section 9- 1.5-104.8. Any costs and fees awarded by the court pursuant to this subsection (9) shall be deposited in the safety commission fund created in section 9-1.5-104.8.
Source: L. 2018: Entire section added, (SB 18-167), ch. 256, p. 1568, § 3, effective August 8.
Editor’s note: Section 12 of chapter 256 (SB 18-167), Session Laws of Colorado 2018, provides that the act adding this section applies to conduct occurring on or after August 8, 2018.