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| 28-519. Criminal Penalties. |
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(1) A person commits criminal mischief if he or she:
(a) Damages property of another intentionally or recklessly; or
(b) Intentionally tampers with property of another so as to endanger
person or property; or
(c) Intentionally or maliciously causes another to suffer pecuniary
loss by deception or threat.
(2) Criminal mischief is a Class IV felony if the actor intentionally
or maliciously causes pecuniary loss of one thousand five hundred
dollars or more, or a substantial interruption or impairment of
public communication, transportation, supply of water, gas, or power,
or other public service.
(3) Criminal mischief is a Class I misdemeanor if the actor intentionally
or maliciously causes pecuniary loss of five hundred dollars or
more but less than one thousand five hundred dollars.
(4) Criminal mischief is a Class II misdemeanor if the actor intentionally
or maliciously causes pecuniary loss of two hundred dollars or more
but less than five hundred dollars.
(5) Criminal mischief is a Class III misdemeanor if the actor intentionally,
maliciously, or recklessly causes pecuniary loss in an amount of
less than two hundred dollars, or if his or her action results in
no pecuniary loss.
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| 76-2301. Act, how cited. |
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Sections 76-2301 to 76-2330 shall be known and may
be cited as the One-Call Notification System Act. |
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| 76-2302. Legislative intent. |
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(1) It is the intent of the Legislature to establish
a means by which excavators may notify operators of underground facilities
in an excavation area so that operators have the opportunity to identify
and locate the underground facilities prior to excavation and so that
the excavators may then observe proper precautions to safeguard the
underground facilities from damage. (2) It is the purpose of the One-Call
Notification System Act to aid the public by preventing injury to
persons and damage to property and the interruption of utility services
resulting from accidents caused by damage to underground facilities. |
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| 76-2303. Definitions, where found. |
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For purposes of the One-Call Notification System Act,
the definitions found in sections 76-2304 to 76-2317 shall be used. |
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| 76-2304. Business day, defined. |
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Business day shall mean any day other than a Saturday,
Sunday, or state or nationally observed legal holiday. |
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| 76-2305. Center, defined. |
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Center shall mean the statewide one-call notification
center. |
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| 76-2306. Damage, defined. |
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Damage shall mean any impact with, partial or complete
severance, destruction, impairment, or penetration of, or removal
or weakening of support from an underground facility, including its
protective coating, housing, or other protective device. |
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| 76-2307. Emergency condition, defined. |
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Emergency condition shall mean any condition which
constitutes a clear and present danger to life, health, or property
or which demands immediate action to prevent or repair a major service
outage. |
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| 76-2308. Excavation, defined. |
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Excavation shall mean any activity in which earth,
rock, or other material in or on the ground is moved or otherwise
displaced by means of tools, equipment, or explosives and shall include
grading, trenching, digging, ditching, drilling, auguring, tunneling,
scraping, and cable or pipe plowing or driving but shall not include
(1) normal maintenance of roads if the maintenance does not change
the original road grade and does not involve the road ditch, (2) tilling
of soil and gardening for seeding and other agricultural purposes,
(3) digging of graves or in landfills in planned locations, (4) maintenance
or rebuilding of railroad track or facilities located on a railroad
right-of-way by the railroad company or its contractors when such
maintenance or rebuilding does not change the track grade, or (5)
hand digging around the base of a pole for pole inspection as part
of routine maintenance or replacement of a pole when the replacement
pole is similarly sized and is installed in the existing hole. |
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| 76-2309. Excavator, defined. |
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Excavator shall mean a person who engages in excavation
in this state. |
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| 76-2310. Gas or hazardous liquid underground pipeline facility, defined. |
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Gas or hazardous liquid underground pipeline facility
shall mean any underground facility used or intended for use in the
transportation of gas or the treatment of gas or used or intended
for use in the transportation of hazardous liquids including petroleum
or petroleum products. |
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| 76-2311. Nonpermanent surface, defined. |
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Nonpermanent surface shall mean any ground consisting
of uncovered dirt or rock or ground that is covered by grass or other
plant life, crushed rock, gravel, or other similar natural substance. |
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| 76-2312. Normal working hours, defined. |
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Normal working hours shall mean the hours of 7am to
5pm on a business day in each time zone in the state. |
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| 76-2313. Operator, defined. |
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Operator shall mean a person who manages or controls
the functions of an underground facility but shall not include a person
who is an owner or tenant of real property where underground facilities
are located if the underground facilities are used exclusively to
furnish services or commodities on the real property. |
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| 76-2314. Permanent surface, defined. |
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Permanent surface shall mean any ground that is covered
by a hard, artificial, weatherproof material such as concrete, asphalt,
or other similar artificial substance. |
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| 76-2315. Person, defined. |
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Person shall mean an individual, partnership, limited
liability company, association, municipality, state, county, political
subdivision, utility, joint venture, or corporation and shall include
the employer of an individual. |
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| 76-2316. Statewide One-Call Notification Center, defined. |
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Statewide one-call notification center shall mean the
association certified by the State Fire Marshal, operating on a nonprofit
basis, supported by its members, and having as its principal purpose
the statewide receipt and dissemination to participating operators
of information on a fair and uniform basis concerning intended excavation
in an area where the operators have underground facilities. |
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| 76-2317. Underground facility, defined. |
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Underground facility shall mean any item of personal
property buried or placed below ground for use in connection with
the storage or conveyance of water, sewage, electronic communications,
telephonic communications, telegraphic communications, cable television,
electric energy, oil, gas, hazardous liquids, or other substances,
including pipes, trunk lines, fiber optic cables, sewers, conduits,
cables, valves, lines, wires, manholes, and attachments to such personal
property. |
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| 76-2318. Center; membership required. |
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Operators of underground facilities shall become members
of and participate in the statewide one-call notification center. |
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| 76-2319. Board of directors; rules and regulations; selection of vendor. |
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The center shall be governed by a board of directors
who shall establish the operating procedures and the technology needed
for the center pursuant to rules and regulations adopted and promulgated
by the State Fire Marshal. The rules and regulations adopted and promulgated
by the State Fire Marshal shall provide for the qualifications, appointment,
retention, and composition of the board of directors. The board of
directors shall also establish a competitive bidding procedure to
select a vendor to provide the notification service, establish a procedure
by which members of the center share the costs of the center on a
fair, reasonable, and nondiscriminatory basis, and do all other things
necessary to implement the purpose of the center. Any agreement between
the center and a vendor for the notification service may be modified
from time to time by the board of directors, and any agreement shall
be reviewed by the board of directors at least once every three years,
with an opportunity to receive new bids if desired by the board of
directors. |
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| 76-2320. Operator; duty to furnish information; center operational, when; certification. |
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Every operator shall furnish the vendor selected by
the board of directors with information concerning the location of
its underground facilities. Every operator having underground facilities
in existence in the state on February 16, 1994, shall furnish such
information to the vendor by April 3, 1995. The vendor shall have
the center operational on October 2, 1995. The center shall be certified
by the State Fire Marshal, and the certification shall be reviewed
every two years to ensure continued compliance with federal law. |
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| 76-2321. Excavation; notice; contents; commencement. |
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(1) A person shall not commence any excavation without first giving
notice to every operator. An excavator's notice to the center shall
be deemed notice to all operators. An excavator's notice to operators
shall be ineffective for purposes of this subsection unless given
to the center. Notice to the center shall be given at least two
full business days, but not more than ten business days, before
commencing the excavation, except notice may be given more than
ten business days in advance when the excavation is a road construction,
widening, repair, or grading project provided for in section 86-334.
An excavator may commence work before the elapse of two full business
days when (a) notice to the center has been given as provided by
this subsection and (b) all the affected operators have notified
the excavator that the location of all affected operator's underground
facilities have been marked or that the operators have no underground
facilities in the location of the proposed excavation.
(2) The notice required pursuant to subsection (1) of this section
shall include (a) the name and telephone number of the person making
notification, (b) the name, address, and telephone number of the
excavator, (c) the location of the area of the proposed excavation,
including the range, township, section, and quarter section, unless
the area is within the corporate limits of a city or village, in
which case the location may be by street address, (d) the date and
time excavation is scheduled to commence, (e) the depth of excavation,
(f) the type and extent of excavation being planned, including whether
the excavation involves tunneling or horizontal boring, and (g)
whether the use of explosives is anticipated.
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| 76-2322 Excavator; notice to center. |
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An excavator shall serve notice of intent to excavate
upon the center by calling the center's toll-free telephone number.
The center shall inform the excavator of all operators to whom such
notice will be transmitted and shall promptly transmit such notice
to every operator having an underground facility in the area of intended
excavation. The center shall assign an identification number to each
notice received. |
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| 76-2323. Underground facilities; mark or identify. |
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(1) Upon receipt of the information contained in the
notice pursuant to section 76-2321, an operator shall advise the
excavator of the approximate location of underground facilities
in the area of the proposed excavation by marking or identifying
the location of the underground facilities with stakes, flags, paint, or any other clearly identifiable
marking or reference point. The location of the underground facility
given by the operator shall be within a strip of land eighteen inches
on either side of the marking or identification plus one-half of
the width of the underground facility. If in the opinion of the
operator the precise location of a facility cannot be determined
and marked as required, the operator shall provide all pertinent
information and field locating assistance to the excavator at a
mutually agreed to time. The location shall be marked or identified
using color standards prescribed by the center. The operator shall
respond no later than two business days after receipt of the information
in the notice or at a time mutually agreed to by the parties.
(2) The marking or identification shall be done in
a manner that will last for a minimum of five business days on any
nonpermanent surface and a minimum of ten business days on any permanent
surface. If the excavation will continue for longer than five business
days, the operator shall remark or reidentify the location of the
underground facility upon the request of the excavator. The request
for remarking or re-identification shall be made through the center.
(3) An operator who determines that it does not have
any underground facility located in the area of the proposed excavation
shall notify the excavator of the determination prior to the date
of commencement of the excavation.
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| 76-2324. Excavator; liability for damage; when. |
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An excavator who fails to give notice of an excavation
pursuant to section 76-2321 and who damages an underground facility
by such excavation shall be strictly liable to the operator of the
underground facility for the cost of all repairs to the underground
facility. An excavator who gives the notice and who damages an underground
facility shall be liable to the operator for the cost of all repairs
to the underground facility unless the damage to the underground
facility was due to the operator's failure to comply with section
76-2323. An excavator who fails to give notice of an excavation
pursuant to section 76-2321 and who damages an underground facility
that is operated by the excavator shall not be in violation of the
One-Call Notification System Act.
In addition to any liability provided in this section
an operator of a damaged underground facility shall be entitled
to any other remedies available at law or in equity provided by
statute or otherwise.
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| 76-2325. Violations; civil penalty. |
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Any person who violates the provisions of section
76-2320, 76-2321, 76-2322, 76-2323, 76-2326, or 76-2330 shall be
subject to a civil penalty as follows:
(1) For a violation related to a gas or hazardous
liquid underground pipeline facility, an amount not to exceed ten
thousand dollars for each violation for each day the violation persists,
up to a maximum of five hundred thousand dollars; and
(2) For a violation related to any other underground
facility, an amount not to exceed five hundred dollars for each
day the violation persists, up to a maximum of five thousand dollars.
An action to recover a civil penalty shall be brought
by the Attorney General of a prosecuting attorney on behalf of the
State of Nebraska in any court of competent jurisdiction of this
state. The trial shall be before the court, which shall consider
the nature, circumstances, and gravity of the violation and, with
respect to the person found to have committed the violation, the
degree of culpability, the absence or existence of prior violations,
whether the violation was a willful act, any good faith attempt
to achieve compliance, and such other matters as justice may require
in determining the amount of penalty imposed. All penalties shall
be handled and distributed pursuant to Article VII, section 5, of
the Constitution of Nebraska.
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| 76-2326. Damage; duty of excavator. |
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If any underground facility is damaged, dislocated,
or disturbed before or during excavation, the excavator shall immediately
notify the center. An excavator shall not conceal or attempt to conceal
damage, dislocation, or disturbance of an underground facility and
shall not repair or attempt to repair the underground facility unless
authorized by the operator of the underground facility. |
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| 76-2327. Incorrect location; duty of excavator. |
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If in the course of excavation the excavator discovers
that the operator has incorrectly located the underground facility,
he or she shall notify the center as soon as practical but no later
than seventy-two hours after discovery. |
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| 76-2328. Local Permits; treatment; claims against political subdivisions. |
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The One-Call Notification System Act shall not affect
or impair any local ordinances or other provisions of law requiring
permits to be obtained before an excavation. A permit issued by a
governing body shall not relieve an excavator from complying with
the requirements of the act. No claim shall be maintained under the
One-Call Notification System Act against a political subdivision or
its officers, agents, or employees except to the extent, and only
to the extent, provided by the Political Subdivisions Tort Claims
Act. |
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| 76-2329. Emergency conditions; notification requirements; liability. |
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Sections 76-2321 and 76-2323 shall not apply to an
excavation made under an emergency condition if all reasonable precautions
are taken to protect the underground facilities. If an emergency condition
exists, the excavator shall give notification in substantial compliance
with section 76-2321 as soon as practical. Upon being notified that
an emergency condition exists, each operator shall provide all reasonably
available location information to the excavator as soon as possible.
If the emergency condition has arisen through no fault of the excavator,
sections 76-2324 and 76-2325 shall not apply and the excavator shall
be liable for damage to any underground facility located in the area
if the damage occurs because of the negligent acts or omissions of
the excavator. |
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| 76-2330. Center; duties. |
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The center shall: (1) Maintain adequate records documenting
compliance with the requirements of the One-Call Notification System
Act, including records of all telephone calls and records of all
location requests for the preceding five years which will be made
available and printed upon request of an operator or excavator;
(2) Provide the notification service during normal
working hours at a minimum; and
(3) Provide procedures for emergency notification
for calls received at other than normal working hours.
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