New Hampshire § 374-55 - Section 374:55 Civil Penalty.

§ 374-55. Section 374:55 Civil Penalty.

I. Proof that an excavation has been made without compliance with the notice requirement of RSA 374:51 and that damage to an underground facility has occurred shall be prima facie evidence in any court or administrative proceeding that the damage was caused by the negligence of the excavator. II. Any excavator who does not give notice of or identify the proposed excavation area as required by RSA 374:51 or rules of the department regarding tolerance zones and marking procedures shall be subject to the penalties in paragraph VIII, in addition to any liability for the actual damages. III. Any operator which does not mark the location of its underground facilities as required by RSA 374:53 or rules of the department regarding tolerance zones and marking procedures shall be subject to the penalties in paragraph VIII. IV. If underground facilities are damaged because an operator does not mark its underground facilities as required by RSA 374:53, the operator shall be subject to the penalties in paragraph VIII, liable for damages sustained to its facilities and, in addition, shall be liable for any damages incurred by the excavator as a result of the operator's failure to mark such facilities. V. If marked underground facilities are damaged, the excavator shall be subject to the penalties in paragraph VIII and liable for the cost of repairs for the damage. VI. Any excavator who damages an underground facility and fails to notify the operator, or backfills the excavation without receiving permission, as required by RSA 374:54, shall be subject to the penalties in paragraph VIII. VII. The department or any department employee, involved in an underground facility damage prevention program approved by the department and designated by the department, may enforce violations of this subdivision. Any excavator or operator that violates this subdivision shall be subject to the penalties in paragraph VIII. In addition, the department may assess the excavator for expenditures made to collect the civil penalty. Any excavator or operator which suffers damage resulting from violation of this subdivision may petition the department to initiate an enforcement action. VIII. Any excavator or operator that does not comply with RSA 374:51 through 374:54 shall be required either to complete an underground facility damage prevention program approved by the department, or to pay a civil penalty of up to $500. The civil penalty may be up to $5,000 if the excavator or operator previously violated RSA 374:51 through 374:54 within the prior 12 months or if the violation results in bodily injury or property damages exceeding $50,000, excluding utility costs. This paragraph shall not apply to a homeowner excavating on his or her own property or to a legal occupant of residential property excavating on the property of his or her primary residence with the permission of the owner.