Section 37-12-306 - Civil penalties; applicability(a) An action to recover a civil penalty under this section may be brought by an operator, excavator, aggrieved party, the notification center, county attorney, district attorney or the attorney general. Venue for an action shall be in the district court for the county in which the operator, excavator, aggrieved party or the notification center resides or maintains a principal place of business in this state or in the county in which the conduct giving rise to a civil penalty occurred. The action provided in this subsection may be by jury trial if a jury is demanded by either party.(b) In determining the liability for or the amount of any damages or civil penalty pursuant to this section, a court shall consider the nature, circumstances and gravity of the alleged violation, the alleged violator's degree of culpability and the alleged violator's history of prior violations.(c) The penalties provided in this section are in addition to any other remedy available at law or equity.(d) No civil penalty shall be imposed under this section against an excavator or operator who violates any of the provisions of this article if the violation occurred while the excavator or operator was responding to a service outage or other emergency, except that such penalty shall be imposed if such violation was willful or malicious.(e) This section shall not apply to any governmental entity as defined by W.S. 1-39-103(a)(i), which participates in the notification center as provided by this act. Nothing in this article shall affect any provision of the Wyoming Governmental Claims Act, W.S. 1-39-101 through 1-39-120.(f) Any civil penalty received under subsection (g) or (h) of this section shall be deposited into the county public school fund of the county in which the violation occurred.(g) With respect to operators: (i) Every operator in Wyoming shall join and participate in the notification center pursuant to W.S. 37-12-304(a). Any operator who does not join or participate in the notification center shall be liable for a fine of five thousand dollars ($5,000.00) each year it is not in compliance with this subsection;(ii) If any underground facility located in the service area of an operator is damaged as a result of the operator's failure to join or participate in the notification center pursuant to W.S. 37-12-304(a), the court shall impose upon such operator a civil penalty up to the amount of five thousand dollars ($5,000.00) for the first offense and up to twenty-five thousand dollars ($25,000.00) for a second offense within a twelve (12) month period after the first offense. If any underground facility located in the service area of an operator is damaged as a result of the operator's failure to join or participate in the notification center pursuant to W.S. 37-12-304(a) on more than two (2) separate occasions within a twelve (12) month period from the date of the first failure to comply with W.S. 37-12-304(a), then the civil penalty shall be up to seventy-five thousand dollars ($75,000.00). Upon a first offense, the operator may be required by the court to complete an excavation safety training program with the notification center;(iii) If any underground facility is damaged as a result of the operator's failure to comply with W.S. 37-12-304(a), the operator's failure to use reasonable care in the marking of the damaged underground facility or the operator's failure to mark the location of its underground facilities within the time period specified in W.S. 37-12-302(d) unless that failure is due to circumstances beyond the operator's control, the operator shall be liable for:(A) Any cost or damage incurred by the excavator as a result of any delay in the excavation project while the underground facility is restored, repaired or replaced, together with reasonable costs and expenses of suit, including reasonable attorney fees; and(B) Any injury or damage to persons or property resulting from the damage to the underground facility. The operator shall also indemnify and defend the affected excavator against any and all claims or actions, if any, for personal injury, death, property damage or service interruption resulting from the damage to the underground facility.(iv) If an operator, after receipt of a notice from an excavator or notification center pursuant to W.S. 37-12-302(c), fails to mark the location of its underground facilities within the time period specified in W.S. 37-12-302(d), and unless the failure resulted from circumstances beyond the operator's control, the operator shall be liable for a civil penalty of up to five thousand dollars ($5,000.00).(h) With respect to excavators: (i) Every excavator shall notify the notification center pursuant to W.S. 37-12-302(c) prior to commencing any excavation activity. Any excavator who fails to notify the notification center pursuant to W.S. 37-12-302(c) shall be liable for a civil penalty in the amount of five thousand dollars ($5,000.00);(ii) If an excavator fails to comply with W.S. 37-12-302(c), (g) or (h) and damages an underground facility during excavation, the excavator shall be liable for a civil penalty up to the amount of five thousand dollars ($5,000.00) for the first offense and up to twenty-five thousand dollars ($25,000.00) for a second offense within a twelve (12) month period after the date of the first offense. If an excavator fails to comply with W.S. 37-12-302(c), (g) or (h) on more than two (2) separate occasions within a twelve (12) month period from the date of the first failure to comply with the appropriate subsection, then the civil penalty shall be up to seventy-five thousand dollars ($75,000.00). Upon a first offense, the excavator may be required to complete an excavation safety training program with the notification center;(iii) If an excavator requests a facilities locate on an expedited basis (less than two (2) full business days) for an emergency excavation and the excavation at issue was not an emergency and did not require a locate on an expedited basis, the excavator shall be liable for a civil penalty of up to five thousand dollars ($5,000.00) for each false emergency locate incident;(iv) If an excavator fails to comply with W.S. 37-12-302(c), (g) or (h) and damages an underground facility during an excavation, or fails to exercise reasonable care in excavating and damages a located underground facility during an excavation, the excavator shall be liable for: (A) Any cost or damage incurred by the operator in restoring, repairing or replacing its damaged underground facility, together with reasonable costs and expenses of suit, including reasonable attorney fees; and(B) Any injury or damage to persons or property resulting from the damage to the underground facility. The excavator shall also indemnify and defend the operator against any and all claims or actions, if any, for personal injury, death, property damage or service interruption resulting from the damage to the underground facility.(v) Subparagraph (iv)(A) of this subsection shall not apply to an excavator if the operator of the underground facility has failed to comply with W.S. 37-12-302(d) or 37-12-304(a).(j) Any provision of an agreement or release that requires an excavator or an operator who has suffered damage or loss due to a violation of this act to indemnify the violator for penalties is unenforceable with respect to any obligation to indemnify the violator for the penalties.Amended by Laws 2019 , ch. 79, § 2, eff. 7/1/2019.