Missouri Revised Statutes

319.010. Sections 319.010 through 319.050 shall be known as the "Underground Facility Safety and Damage Prevention Act".

(L. 1976 S.B. 583 § 1)

319.015. For the purposes of sections 319.010 to 319.050, the following terms mean:

(1) "Approximate location", a strip of land not wider than the width of the underground facility plus two feet on either side thereof. In situations where reinforced concrete, multiplicity of adjacent facilities or other unusual specified conditions interfere with location attempts, the owner or operator shall designate to the best of his or her ability an approximate location of greater width;

(2) "Excavation", any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes, without limitation, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, augering, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, and demolition of structures, except that, the use of mechanized tools and equipment to break and remove pavement and masonry down only to the depth of such pavement or masonry, the use of high-velocity air to disintegrate and suction to remove earth, rock and other materials, and the tilling of soil for agricultural or seeding purposes shall not be deemed excavation. Backfilling or moving earth on the ground in connection with other excavation operations at the same site shall not be deemed separate instances of excavation;

(3) "Marking", the use of stakes, paint or other clearly identifiable materials to show the field location of underground facilities, or the area of proposed excavation, in accordance with the color code standard of the American Public Works Association. Unless otherwise provided by the American Public Works Association, the following color scheme shall be used: blue for potable water; purple for reclaimed water, irrigation and slurry lines; green for sewers and drain lines; red for electric, power lines, cables, conduit and lighting cables; orange for communications, including telephone, cable television, alarm or signal lines, cable or conduit; yellow for gas, oil, steam, petroleum or gaseous materials; white for proposed excavation; pink for temporary marking of construction project site features such as centerline and top of slope and toe of slope;

(4) "Notification center", a statewide organization operating twenty-four hours a day, three hundred sixty-five days a year on a not-for-profit basis, supported by its participants, or by more than one operator of underground facilities, having as its principal purpose the statewide receipt and dissemination to participating owners and operators of underground facilities of information concerning intended excavation activities in the area where such owners and operators have underground facilities, and open to participation by any and all such owners and operators on a fair and uniform basis. Such notification center shall be governed by a board of directors elected by the membership and composed of representatives from each general membership group;

(5) "Permitted project", a project for which a permit for the work to be performed is required to be issued by a local, state or federal agency and, as a prerequisite to receiving such permit, the applicant is required to locate all underground facilities in the area of the work and in the vicinity of the excavation and is required to notify each owner of such underground facilities;

(6) "Person", any individual, firm, joint venture, partnership, corporation, association, cooperative, municipality, political subdivision, governmental unit, department or agency and shall include a notification center and any trustee, receiver, assignee or personal representative thereof;

(7) "Pipeline facility" includes, without limitation, new and existing pipe, rights-of-way, and any equipment, facility, or building 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;

(8) "Preengineered project", a project which is approved by an agency or political subdivision of the state and for which the agency or political subdivision responsible for the project, as part of its engineering and contract procedures, holds a meeting prior to the commencement of any construction work on such project and in such meeting all persons determined by the agency or political subdivision to have underground facilities located within the excavation area of the project are invited to attend and given an opportunity to verify or inform any agency or political subdivision of the location of their underground facilities, if any, within the excavation area and where the location of all known underground facilities are duly located or noted on the engineering drawing as specifications for the project;

(9) "Residential property", any real estate used or intended to be used as a residence by not more than four families on which no underground facilities exist which are owned or operated by any party other than the owner of said property;

(10) "Underground facility", any item of personal property which shall be buried or placed below ground for use in connection with the storage or conveyance of water, storm drainage, sewage, telecommunications service, cable television service, electricity, oil, gas, hazardous liquids or other substances, and shall include but not be limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments and those portions of pylons or other supports below ground that are within any public or private street, road or alley, right-of-way dedicated to the public use or utility easement of record, or prescriptive easement; except that where gas distribution lines or electric lines, telecommunications facilities, cable television facilities, water service lines, water system, storm drainage or sewer system lines are and such lines or facilities are owned solely by the owner or owners of such property, such lines or facilities receiving service shall not be considered underground facilities for purposes of this chapter; provided, however, for railroads regulated by the Federal Railroad Administration, "underground facility" as used in sections 319.015 to 319.050 shall not include any excavating done by a railroad when such excavating is done entirely on land which the railroad owns or on which the railroad operates, or in the event of emergency, on adjacent land;

(11) "Working day", every day, except Saturday, Sunday or a legally declared local, state or federal holiday.

(L. 1976 S.B. 583 § 2, A.L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.022. 1. All owners and operators of underground facilities which are located in a county of the first classification or second classification within the state who are not members of a notification center on August 28, 2001, shall become participants in the notification center prior to January 1, 2003. Any person who installs or otherwise becomes an owner or operator of an underground facility which is located within a county of the first classification or second classification on or after January 1, 2003, shall become a participant in the notification center within thirty days of acquiring or operating such underground facility. Beginning January 1, 2003, all owners and operators of underground facilities which are located in a county of the first classification or second classification within the state shall maintain participation in the notification center.

2. All owners and operators of underground facilities which are located in a county of the third classification or fourth classification within the state who are not members of a notification center on August 28, 2001, shall become participants in the notification center prior to January 1, 2005. Any person who installs or otherwise becomes an owner or operator of an underground facility which is located within a county of the third classification or fourth classification on or after January 1, 2005, shall become a participant in the notification center within thirty days of acquiring or operating such underground facility. Beginning January 1, 2005, all owners and operators of underground facilities which are located in a county of the third classification or fourth classification within the state shall maintain participation in the notification center.

3. The notification center shall maintain in its offices and make available to any person upon request a current list of the names and addresses of each owner and operator participating in the notification center, including the county or counties wherein each owner or operator has underground facilities. The notification center may charge a reasonable fee to persons requesting such list as is necessary to recover the actual costs of printing and mailing.

4. Excavators shall be informed of the availability of the list of participants in the notification center required in subsection 2 of this section in the manner provided for in section 319.024.

5. An annual audit or review of the notification center shall be performed by a certified public accountant and a report of the findings submitted to the speaker of the house of representatives and the president pro tem of the senate.

(L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425, A.L. 2007 S.B. 613 Revision)

319.024. 1. Every person owning or operating an underground facility shall assist excavators and the general public in determining the location of underground facilities before excavation activities are begun or as may be required by subsection 6 of section 319.026 or subsection 1 of section 319.030 after an excavation has commenced. Methods of informing the public and excavators of the means of obtaining such information may, but need not, include advertising, including advertising in periodicals of general circulation or trade publications, information provided to professional or trade associations which routinely provide information to excavators or design professionals, or sponsoring meetings of excavators and design professionals for such purposes. Information provided by the notification center on behalf of persons owning or operating an underground facility shall be deemed in compliance with this section by such persons. Every person owning or operating underground facilities who has a written policy in determining the location of its underground facilities shall make available a copy of said policy to any person upon request.

2. Every person owning or operating underground pipeline facilities shall, in addition to the requirements of subsection 1 of this section:

(1) Identify on a current basis, persons who normally engage in excavation activities in the area in which the pipeline is located. Every such person who is a participant in a notification center shall be deemed to comply with this subdivision if such notification center maintains and updates a list of the names and addresses of all excavators who have given notice of intent to excavate to such notification center during the previous five years and provided the notification center shall, not less frequently than annually, provide public notification and actual notification to all excavators on such list of the existence and purpose of the notification center, and procedures for obtaining information from the notification center;

(2) Either directly or through the notification center, notify excavators and the public in the vicinity of his or her underground pipeline facility of the availability of the notification center by including the information set out in subsection 1 of section 319.025, in notifications required by the safety rules of the Missouri public service commission relating to its damage prevention program;

(3) Notify excavators annually who give notice of their intent to excavate of the type of marking to be provided and how to identify the markings.

(L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.025. 1. Except as provided in sections 319.030 and 319.050, a person shall not make or begin any excavation in any public street, road or alley, right-of-way dedicated to the public use or utility easement of record or within any private street or private property without first giving notice to and obtaining information concerning the possible location of any underground facilities which may be affected by said excavation from each and every owner and operator of underground facilities whose name appears on the current list of participants in the notification center. Prior to January 1, 2003, a person shall not make or begin any excavation pursuant to this subsection without also making notice to owners or operators of underground facilities which do not participate in a notification center and whose name appears on the current list of the recorder of deeds in and for the county in which the excavation is to occur. Beginning January 1, 2003, notice to the notification center of proposed excavation shall be deemed notice to all owners and operators of underground facilities. The notice referred to in this section shall comply with the provisions of section 319.026.

2. An excavator's notice to owners and operators of underground facilities participating in the notification center pursuant to section 319.022 is ineffective for purposes of subsection 1 of this section unless given to such notification center. Prior to January 1, 2003, the notice required by subsection 1 of this section shall be given directly to owners or operators of underground facilities who are not represented by a notification center.

3. If the excavator is engaged in trenching, ditching, drilling, well-drilling or -driving, augering or boring and, if upon notification by the excavator pursuant to section 319.026, the owner or operator notifies the excavator that the area of excavation cannot be determined from the description provided by the excavator, the excavator shall mark the proposed area of excavation prior to marking of location by the owner or operator of the facility. For any excavation, as defined in section 319.015, if the owner or operator notifies the excavator that the area of excavation cannot be determined from the description provided by the excavator through the notice required by this section, the owner or operator may require the excavator to provide project plans to the owner or operator, or meet on the site of the excavation with representatives of the owner or operator as provided by subsection 1 of section 319.030. The provisions of this subsection shall not apply to owners of residential property performing excavations on their own property.

(L. 1976 S.B. 583 § 4, A.L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.026. 1. An excavator shall serve notice of intent to excavate to the notification center by toll-free telephone number operated on a twenty-four hour per day, seven day per week basis or, prior to January 1, 2003, to individual nonparticipant owners or operators at least two working days, but not more than ten working days, before commencing the excavation activity. The notification center receiving such notice shall inform the excavator of all owners, operators and other persons to whom such notice will be transmitted and shall promptly transmit such notice to every public utility, municipal corporation and all persons owning or operating an underground facility in the area of excavation and which are participants in and have registered their locations with the notification center. The notification center receiving such notice shall solicit all information required in subsection 2 of this section from the excavator and shall transmit all details of such notice as required by this section.

2. Each notice of intent to excavate given pursuant to this section shall contain the name, address and telephone number and facsimile number, if any, of the person filing the notice of intent, the name, address and telephone number of the excavator, the date the excavation activity is to commence, the depth of planned excavation and, if applicable, that the use of explosives is anticipated on the excavation site, and the type of excavation being planned, including whether the excavation involves tunneling or horizontal boring. The notice shall state whether someone is available between 8:00 a.m. and 5:00 p.m. on working days at the telephone number given and whether the excavator's telephone is equipped with a recording device. The notice shall also specify the location of the excavation by any one or more of the following means: by reference to a specific street address, or by reference to specific quarter section, and shall state whether excavation is to take place within the city limits. The notice shall also include a description of the location or locations of the excavation at the site described by direction and approximate distance in relation to prominent features of the site, such as existing buildings or roadways. For excavations occurring outside the limits of an incorporated city, the following additional information shall be provided: the location of the excavation in relation to the nearest numbered, lettered or named state or county road which is posted on a road sign, including the approximate distance from the nearest intersection or prominent landmark; and, if the excavation is not on or near a posted numbered, lettered or named state or county road, directions as to how to reach the site of the excavation from the nearest such road. The notification center receiving such notice shall solicit all information required in this subsection and shall require the excavator to provide all such information before notice by the excavator is deemed to be completed pursuant to sections 319.015 to 319.050. The notification center shall transmit all details of such notice as required in subsection 1 of this section.

3. A written record of each notice of intent to excavate shall be maintained by the notification center or, prior to January 1, 2003, by the nonmember owner or operator receiving direct notifications for a period of five years. The record shall include the date the notice was received and all information required by subsection 2 of this section which was provided by the excavator. If the recipient creates a record of the notice by computer or telephonic recording, such record of the original notice shall be maintained for one year from the date of receipt. Persons holding records of notices of intent to excavate and records of information provided to the excavator by the notification center or owner or operator of the facility, shall make copies of such records available for a reasonable copying fee upon the request of the owner or operator of the underground facilities or the excavator filing the notice.

4. If in the course of excavation the person responsible for the excavation operations discovers that the owner or operator of the underground facility who is a participant in a notification center has incorrectly located the underground facility, he or she shall notify the notification center which shall inform the participating owner or operator. If the owner or operator of the underground facility is not a participant in a notification center prior to the January 1, 2003, effective date for mandatory participation pursuant to section 319.022, the person responsible for the excavation shall notify the owner. The person responsible for maintaining records of the location of underground facilities for the owner or operator shall correct such records to show the actual location of such facilities, if current records are incorrect.

5. Notwithstanding the fact that a project is a preengineered project or a permitted project, excavators connected therewith shall be required to give notification in accordance with this section prior to commencement of excavation.

6. When markings have been provided in response to a notice of intent to excavate, excavators may continue to work within the area described in the notice so long as the markings are visible. If markings become unusable due to weather, construction or other cause, the excavator shall contact the notification center to request remarking. Such notice shall be given in the same manner as original notice of intent to excavate, and the owner or operator shall remark the site in the same manner, within the same time, as required in response to an original notice of intent to excavate. Each excavator shall exercise reasonable care not to unnecessarily disturb or obliterate markings provided for location of underground facilities. If remarking is required due to the excavator's failure to exercise reasonable care, or if repeated unnecessary requests for remarking are made by an excavator even though the markings are visible and usable, the excavator may be liable to the owner or operator for the reasonable cost of such remarking.

(L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.028. 1. On or after January 1, 2003, an owner or operator of underground facilities, who has become a participant in the notification center as required in section 319.022, will maintain participation in the notification center, unless it is determined that the inaccuracy rate of the notification center reaches fifteen percent. The accuracy rate shall be determined by the number of notifications of an excavation, where the owner or operator has no underground facilities at the excavation site, as described in the excavators notification, divided by the total number of notifications to an owner or operator of underground facilities during any twelve-month period.

2. Once the notification center has an inaccuracy rate of fifteen percent or higher for any owner or operator of underground facilities, then any such owner or operator may withdraw from participation in the notification center by providing written notice to the notification center of its withdrawal. The owner or operator shall then file with the recorder of deeds for each county it has underground facilities a statement that it has underground facilities and a name and phone number of a contact person that excavators shall contact and notify of its intent to excavate. The owner or operator shall also publish, at least quarterly, in a newspaper or other publication of general circulation in counties that have underground facilities a statement that the owner or operator has underground facilities and who the excavator shall contact regarding its intent to excavate.

3. After January 1, 2003, in the event that an owner or operator withdraws from the notification center no party may use in * any legal proceeding the fact that an owner or operator has withdrawn from the notification center as evidence to establish negligence, recklessness, lack of adherence to industry standards, or any other manner which would suggest that the owner or operator failed to comply with any standard of care.

(L. 2001 H.B. 425)

*Word "an" appears in original rolls.

319.030. 1. Every person owning or operating an underground facility to whom notice of intent to excavate is required to be given shall, upon receipt of such notice as provided in this section from a person intending to commence an excavation, inform the excavator as promptly as practical, but not in excess of two working days from receipt of the notice, unless otherwise mutually agreed, of the approximate location of underground facilities in or near the area of the excavation so as to enable the person engaged in the excavation work to locate the facilities in advance of and during the excavation work. If the information available to the owner or operator of a pipeline facility or an underground electric or communications cable discloses that valves, vaults or other appurtenances are located in or near the area of excavation, the owner or operator shall either inform the excavator of the approximate location of such appurtenances at the same time and in the same manner as the approximate location of the remainder of the facility is provided, or shall at such time inform the excavator that appurtenances exist in the area and provide a telephone number through which the excavator may contact a representative of the owner or operator who will meet at the site within one working day after request from the excavator and at such meeting furnish the excavator with the available information about the location and nature of such appurtenances. If the excavator states in the notice of intent to excavate that the excavation will involve tunneling or horizontal boring, the owner or operator shall inform the excavator of the depth, to the best of his or her knowledge or ability, of the facility according to the records of the owner or operator. The owner or operator shall provide the approximate location of underground facilities by use of markings. If stakes are used, staking shall be consistent with the color code and other standards for ground markings. Persons representing the excavator and the owner or operator shall meet on the site of excavation within two working days of a request by either person for such meeting for the purpose of clarifying markings, or upon agreement of the excavator and owner or operator, such meeting may be an alternate means of providing the location of facilities by originally marking the approximate location of the facility at the time of the meeting. If upon receipt of a notice of intent to excavate, an owner or operator determines that he or she neither owns or operates underground facilities in or near the area of excavation, the owner or operator shall within two working days after receipt of the notice, inform the excavator that the owner or operator has no facilities located in the area of the proposed excavation. If the notice of intent to excavate provided to the owner or operator of the underground facility by the notification center states that a person is available at the telephone number given in the notice between 8:00 a.m. and 5:00 p.m. on each working day or that the excavator's telephone is equipped with a recording device, or states a facsimile number for the excavator, the owner or operator shall make actual notice of no facilities in the area of the excavation described in the notice by one or more of the following methods: calling the telephone number given between 8:00 a.m. and 5:00 p.m. on a working day; leaving a message on the excavator's recording device; transmitting a facsimile message to the excavator; marking "no facilities" or "clear" at the site of excavation; or verbally informing the excavator at the site of excavation. If the notice of intent to excavate provided to the owner or operator does not indicate that a person is available at the telephone number given in the notice between 8:00 a.m. and 5:00 p.m. on each working day or that the excavator's telephone is equipped with a recording device or that a facsimile number is provided for receiving facsimile messages, then the owner or operator may attempt to notify the excavator of no facilities in the area of excavation by any of the methods indicated above; however, two documented attempts by the owner or operator to reach such an excavator by telephone shall constitute compliance with this subsection. A record of the date and means of informing the excavator that no facilities were located by the owner or operator shall be included in the written records required by subsection 3 of section 319.026.

2. Owners and operators of underground facilities who are participants in the notification center according to the current list maintained in the offices of the notification center shall be relieved of the responsibility to respond to notices of intent to excavate received directly from the person intending to commence an excavation, except for requests for clarification of markings through on-site meetings and requests for locations at the time of an emergency as provided by section 319.050.

3. In the event that a person owning or operating an underground facility fails to comply with the provisions of subsection 1 of this section after notice given by an excavator in compliance with section 319.026, the excavator, prior to commencing the excavation, shall give a second notice to the same entity to whom the original notice was made as required by section 319.026. If, after the receipt of the second notice, the owner or operator of an underground facility fails to provide the excavator with location information during the next working day, the excavator may commence the excavation. Nothing in this subsection shall excuse the excavator from exercising the degree of care in making the excavation as is otherwise required by law.

4. For purposes of this section, a period of two working days begins upon receipt of the excavator's notice of intent to excavate or upon receipt of a request for a meeting and shall end on the second working day thereafter at the same time of day. If the excavator's notice of intent to excavate or a request for a meeting is received on a working day before 8:00 a.m., such period of time shall begin at 8:00 a.m. of that day. If the excavator's notice of intent to excavate or a request for a meeting is received after 5:00 p.m. on a working day, or at any time on a day that is not a working day, then such period of time shall begin at 8:00 a.m. of the first working day after the day of actual receipt.

(L. 1976 S.B. 583 § 5, A.L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.035. Obtaining information as required by sections 319.010 to 319.050 does not excuse any person making any excavation from doing so in a careful and prudent manner.

(L. 1976 S.B. 583 § 6, A.L. 1991 S.B. 214 & 264)

319.036. Any person owning or leasing agricultural property shall not be required to make notice of excavation required by section 319.022 for excavations on such property, if such excavation is not in the proximity of an underground facility which is marked with an aboveground placard or line marker and is not in the proximity of a utility easement known to that person. For purposes of this section "agricultural property" means any property used to produce an agricultural product as defined by section 348.400, RSMo, or defined as agricultural property by that section.

(L. 2001 H.B. 425)

319.037. 1. Notwithstanding any other provision of law to the contrary, the procedures and requirements set forth in this section shall apply on the site of any excavation involving horizontal boring, including directional drilling, where the approximate location of underground facilities has been marked in compliance with section 319.030 and where any part of the walls of the intended bore are within the marked approximate location of the underground facility.

2. The excavator shall not use power-driven equipment for horizontal boring, including directional drilling, within the marked approximate location of such underground facilities until the excavator has made careful and prudent efforts to confirm the horizontal and vertical location thereof in the vicinity of the proposed excavation through methods appropriate to the geologic and weather conditions, and the nature of the facility, such as the use of electronic locating devices, hand digging, pot holing when practical, soft digging, vacuum methods, use of pressurized air or water, pneumatic hand tools or other noninvasive methods as such methods are developed. Such methods of confirming location shall not violate established safety practices. Nothing in this subsection shall authorize any person other than the owner or operator of a facility to attach an electronic locating device to any underground facility. For excavations paralleling the underground facility, such efforts to confirm the location of the facility shall be made at careful and prudent intervals. The excavator shall also make careful and prudent efforts by such means as are appropriate to the geologic and weather conditions and the nature of the facility, to confirm the horizontal and vertical location of the boring device during boring operations. Notwithstanding the foregoing, the excavator shall not be required to confirm the horizontal or vertical location of the underground facilities if the excavator, using the methods described in this section, excavates a hole over the underground facilities to a depth two feet or more below the planned boring path and then carefully and prudently monitors the horizontal and vertical location of the boring device in a manner calculated to enable the device to be visually observed by the excavator as it crosses the entire width of the marked approximate location of the underground facilities.

(L. 2001 H.B. 425)

319.040. The failure of any excavator to give notice of proposed excavation activities as required by this chapter shall be a rebuttable presumption of negligence on his part in the event that such failure shall cause injury, loss or damage. In addition to any penalties provided herein, liability under common law may apply.

(L. 1976 S.B. 583 § 7, A.L. 1991 S.B. 214 & 264)

319.041. Nothing in the foregoing shall relieve an excavator from the obligation to excavate in a safe and prudent manner, nor shall it absolve an excavator from liability for damage to legally installed facilities. Notwithstanding any provision of law to the contrary, nothing in this chapter shall abrogate any contractual provisions entered into between any railroad and any other party owning or operating an underground facility within the railroad's right-of-way.

(L. 2001 H.B. 425)

319.045. 1. In the event of any damage or dislocation or disturbance of any underground facility in connection with any excavation, the person responsible for the excavation operations shall immediately notify the notification center and the owner or operator of the facility or the owner or operator, if known, if it is not a participant in the notification center prior to January 1, 2003. On or after January 1, 2003, the responsible party shall notify the notification center only.

2. In the event of any damage or dislocation or disturbance to any underground facility in advance of or during the excavation work, the person responsible for the excavation operations shall not conceal or attempt to conceal such damage or dislocation or disturbance, nor shall that person attempt or make repairs to the facility unless authorized by the owner or operator of the facility. In the case of sewer lines or facilities, emergency temporary repairs may be made by the excavator after notification without the owners' or operators' authorization to prevent further damage to the facilities. Such emergency repairs shall not relieve the excavator of responsibility to make notification as required by subsection 1 of this section.

3. Any person who violates in any material respect the provisions of section 319.022, 319.023, 319.025, 319.026, 319.030, 319.037* or 319.045 or who willfully damages an underground facility shall be liable to the state of Missouri for a civil penalty of up to ten thousand dollars for each violation for each day such violation persists, except that the maximum penalty for violation of the provisions of sections 319.010 to 319.050 shall not exceed five hundred thousand dollars for any related series of violations. An action to recover such civil penalty may be brought by the attorney general or a prosecuting attorney on behalf of the state of Missouri in any appropriate circuit court of this state. Trial thereof 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, the effect on ability to continue to do business, any good faith in attempting to achieve compliance, ability to pay the penalty, and such other matters as justice may require in determining the amount of penalty imposed.

4. The attorney general may bring an action in any appropriate circuit court of this state for equitable relief to redress or restrain a violation by any person of any provision of sections 319.010 to 319.050. The court may grant such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, temporary or permanent.

(L. 1976 S.B. 583 § 8, A.L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

*Original rolls contain "310.037", a typographical error.

319.050. The provisions of sections 319.025 and 319.026 shall not apply to any utility which is repairing or replacing any of its facilities due to damage caused during an unexpected occurrence or when making an excavation at times of emergency resulting from a sudden, unexpected occurrence, and presenting a clear and imminent danger demanding immediate action to prevent or mitigate loss or damage to life, health, property or essential public services. "Unexpected occurrence" includes, but is not limited to, thunderstorms, high winds, ice or snow storms, fires, floods, earthquakes, or other soil or geologic movements, riots, accidents, water pipe breaks, vandalism or sabotage which cause damage to surface or subsurface facilities requiring immediate repair. An excavator or utility may proceed regarding such emergency, provided all reasonable precautions have been taken to protect the underground facilities. In any such case, the excavator or utility shall give notification, substantially in compliance with section 319.026, as soon as practical, and upon being notified that an emergency exists, each owner and operator of an underground facility in the area shall immediately provide all location information reasonably available to any excavator who requests the same.

(L. 1976 S.B. 583 § 9, A.L. 1991 S.B. 214 & 264, A.L. 2001 H.B. 425)

319.075. Sections 319.075 to 319.090 may be cited and shall be known as the "Overhead Power Line Safety Act".

(L. 1991 S.B. 214 & 264 § 1)

(2005) Act does not affect or create an exception to an employer's immunity under the Worker's Compensation Act. Crow v. Kansas City Power and Light Co., 174 S.W.3d 523 (Mo.App. W.D.).

319.078. As used in sections 319.075 to 319.090, the following terms mean:

(1) "Authorized person":

(a) An employee of a public utility or an employee of a contractor which has been authorized by a public utility to perform construction, operation or maintenance on or near the poles or structures of such utility;

(b) An employee of a cable television or communication services company or an employee of a contractor authorized to make cable television or communication service attachments; or

(c) An employee of the state or a county or municipality which has authorized circuit construction, operation or maintenance on or near the poles or structures of a public utility;

(2) "High voltage", electric potential in excess of six hundred volts measured between conductors or between a conductor and the ground;

(3) "Overhead lines", all electrical conductors installed above ground;

(4) "Person", an individual, firm, joint venture, partnership, corporation, association, municipality, or governmental unit which performs or contracts to perform any function or activity upon any land, building, highway or other premises in proximity to an overhead line;

(5) "Public utility" includes those entities defined as such in section 386.020, RSMo, as well as municipally owned electrical systems and electric cooperatives provided for in chapters 91 and 394, RSMo.

(L. 1991 S.B. 214 & 264 § 2)

319.080. Unless danger against contact with high voltage overhead lines has been guarded against as provided by section 319.083, no person, individually or through an agent or employee, shall store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies or materials or any other device that conducts electricity, within ten feet of any high voltage overhead line, or perform or require any other person to perform any function or activity upon any land, building, highway or other premises, if at any time during the performance thereof it could reasonably be expected that the person performing the function or activity could move or be placed within ten feet of any high voltage overhead line.

(L. 1991 S.B. 214 & 264 § 3)

319.083. 1. When any person desires to temporarily carry out any function or activity in closer proximity to any high voltage overhead line than is permitted by sections 319.075 to 319.090, the person or persons responsible for the function or activity shall notify the public utility which owns or operates the high voltage overhead line of the function or activity, and shall make appropriate arrangements with the public utility for temporary mechanical barriers, temporary deenergization and grounding of the conductors, temporary rerouting of electric current or temporary relocating of the conductors, before proceeding with any function or activity which would impair the clearances required by sections 319.075 to 319.090.

2. A person requesting a public utility to provide temporary clearances or other safety precautions shall be responsible for payment of those costs incurred by such utility in the temporary rerouting of electric current or the temporary relocating of the conductors. Upon request, a public utility shall provide a written cost estimate for the work needed to provide temporary clearances or other safety precautions. A public utility is not required to provide such clearances or other safety precautions until payment of the estimated amount has been made. Unless otherwise agreed to, a public utility shall commence work on such clearances or other safety precautions within seven working days after payment has been made.

(L. 1991 S.B. 214 & 264 § 4)

319.085. If a violation of any of the provisions of sections 319.075 to 319.090 results in physical or electrical contact with any high voltage overhead line such violation shall be a rebuttable presumption of negligence on the part of the violator in the event such violation shall cause injury, loss or damage, and, notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator. In addition to any penalties provided herein, liability under common law may apply.

(L. 1991 S.B. 214 & 264 § 5)

319.088. Sections 319.075 to 319.090 shall not apply to:

(1) Construction, operation or maintenance of power lines and telecommunications lines or authorized attachments thereto by an authorized person as defined in section 319.078; or

(2) Governmental entities responding to an emergency situation.

(L. 1991 S.B. 214 & 264 § 6)

319.090. Any person who violates any of the provisions of sections 319.075 to 319.088 is guilty of a class B misdemeanor.

(L. 1991 S.B. 214 & 264 § 7)

319.100. As used in sections 319.100 to 319.137, the following terms mean:

(1) "Aboveground storage tank", any one or a combination of tanks, including pipes connected thereto, used to contain an accumulation of petroleum and the volume of which, including the volume of the aboveground pipes connected thereto, is ninety percent or more above the surface of the ground, and is utilized for the sale of products regulated by chapter 414, RSMo. The term does not include those tanks described in paragraphs (a) to (k) of subdivision (16) of this section or aboveground storage tanks at petroleum pipeline terminals;

(2) "Board", the board of trustees of the petroleum storage tank insurance fund;

(3) "Conference, conciliation and persuasion", a process of verbal or written communications consisting of meetings, reports, correspondence or telephone conferences between authorized representatives of the department and the alleged violator. The process shall, at a minimum, consist of one offer to meet with the alleged violator tendered by the department. During any such meeting, the department and the alleged violator shall negotiate in good faith to eliminate the alleged violation and shall attempt to agree upon a plan to achieve compliance;

(4) "Department", the department of natural resources;

(5) "Fund", the petroleum storage tank insurance fund established pursuant to section 319.129;

(6) "Guarantor", any person, other than the owner or the operator, who provides evidence of financial responsibility;

(7) "Minor violation", a violation which possesses a small potential to harm the environment or human health or cause pollution, was not knowingly committed, and is not defined by the United States Environmental Protection Agency as other than minor;

(8) "Operator", any person in control of, or having responsibility for, the daily operation of the tank;

(9) "Owner", shall include any person who owned an underground storage tank immediately before the discontinuation of its use if not in use on August 28, 1989, or any person who owns an underground storage tank in use on or after August 28, 1989, and any person who owned an aboveground storage tank that was utilized for the sale of products regulated by chapter 414, RSMo, immediately before the discontinuation of its use if not in use on August 28, 1996, and any person who owns an aboveground storage tank utilized for the sale of products regulated by chapter 414, RSMo, in use on or after August 28, 1996. The term does not include any person who, without participating in the management of an aboveground storage tank or underground storage tank or both types of tanks, and otherwise not primarily engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect a security interest in or lien on the tank or the property where the tank is located;

(10) "Participating in management" does not include monitoring the operator's business, acquiring title in lieu of a foreclosure or other agreement in settlement of the operator's or property owner's debt;

(11) "Person", any individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, the state and its political subdivisions, or any interstate body. "Person" also includes any consortium, joint venture, commercial entity, and the government of the United States;

(12) "Petroleum" shall mean gasoline, kerosene, diesel, lubricants and fuel oil;

(13) "Petroleum storage tank", an aboveground storage tank or an underground storage tank used to contain an accumulation of petroleum. The term does not include those tanks described in paragraphs (a) to (k) of subdivision (16) of this section;

(14) "Regulated substance" includes:

(a) Any substance defined in Section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act (P.L. 96-510), as amended, but not including any substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended; and

(b) Petroleum, including crude oil or any fraction thereof, which is liquid at standard conditions of temperature and pressure, sixty degrees Fahrenheit and fourteen and seven-tenths pounds per square inch absolute, respectively; and

(c) Any substance adopted by rule in accordance with federal laws referenced by Section 101(14) of the federal Comprehensive Environmental Response, Compensation, and Liability Act (P.L. 96-510);

(15) "Release" includes, but is not limited to, any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from a petroleum storage tank into groundwater, surface water, or subsurface soils;

(16) "Underground storage tank", any one or combination of tanks, including pipes connected thereto, used to contain an accumulation of regulated substances, and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground. The department shall adopt, delete or modify exemptions established in this subdivision to any modifications, additions or deletions made by the Environmental Protection Agency. Exemptions from this definition and regulations promulgated under the provisions of sections 319.100 to 319.137 include:

(a) Farm or residential tank of eleven hundred gallons or less used for storing motor fuel for noncommercial purposes;

(b) Tanks used for storing heating oil for consumptive use on the premises where stored;

(c) Septic tanks;

(d) Pipeline facilities, including gathering lines, regulated under:

a. The federal Natural Gas Pipeline Safety Act of 1968 (P.L. 90-481), as amended; or

b. The federal Hazardous Liquid Pipeline Act of 1979 (P.L. 96-129), as amended;

(e) Pipeline facilities regulated under state laws comparable to the provisions of law referred to in paragraph (d) of this subdivision;

(f) Surface impoundments, pits, ponds, or lagoons;

(g) Storm water or wastewater collection systems;

(h) Flow-through process tanks;

(i) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; and

(j) Storage tanks situated in an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the storage tank is situated upon or above the surface of the floor; and

(k) Transformers, circuit breakers or other electrical equipment.

(L. 1989 H.B. 77, et al. § 1, A.L. 1991 S.B. 204, A.L. 1993 S.B. 80, et al., A.L. 1996 S.B. 708, A.L. 1998 S.B. 852 & 913)

Effective 1-1-99

319.103. 1. Within ninety days after August 28, 1989, each owner of an existing underground storage tank currently in operation, including any tank which is temporarily out of service, who has not previously provided notification, shall register such tank with the department and specify the age, size, type, location, and uses of such tank.

2. Within ninety days after August 28, 1989, the owner of an existing underground storage tank taken out of operation between January 1, 1974, and August 28, 1989, shall register such tank with the department and specify the age, size, type, location, and uses of such tank.

3. Any owner who brings an underground storage tank into use after August 28, 1989, shall register such tank with the department within thirty days after the tank is brought into use and specify the age, size, type, location and uses of such tank.

4. The requirements of subsections 1 to 3 of this section shall not apply to tanks for which notice was given pursuant to section 103(c) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510).

5. Registration required by subsections 1 to 3 of this section shall be made on approved forms made available by the department.

6. The owner of any tank identified in subsections 1 to 3 of this section, or for which notice was given pursuant to either section 103(c) of the federal Comprehensive Environmental Response, Compensation, and Liability Act (P.L. 96-510), as amended, or section 9002(a) of subtitle I of the federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, that is permanently closed pursuant to section 319.111, shall notify the department in writing within thirty days prior to closure. Notice shall include the following information:

(1) The date on or after the tank would be taken out of operation;

(2) The age of the tank on the date taken out of operation;

(3) Any identification number for the tank as provided pursuant to subsections 1 to 3 of this section;

(4) The size, type, and location of the tank; and

(5) The type of substance or substances which the tank was used to store.

7. Any owner who has provided the department with underground storage tank inventory information in compliance with the notification requirements of section 9002(a) of subtitle I of the federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, shall be deemed to be in compliance with subsections 1 to 3 of this section.

8. Any person who deposits a regulated substance in an underground storage tank shall, following August 28, 1989, upon the first two deposits, notify the owner or operator in writing of his obligations under sections 319.103 to 319.137.

9. Any person who sells a tank intended to be used as an underground storage tank shall notify the purchaser of the tank in writing of the owner's notification requirements pursuant to this section.

(L. 1989 H.B. 77, et al. § 2)

319.105. 1. The department shall issue performance standards for underground storage tanks brought into use after August 28, 1989, and for upgrading existing underground storage tanks. The performance standards shall include, but shall not be limited to, design, construction, installation, piping, release detection, operation, and compatibility standards.

2. Until the standards promulgated by the department in subsection 1 of this section become effective, no person may install an underground storage tank for the purpose of storing or dispensing regulated substances unless:

(1) The tank will prevent releases of the stored regulated substances due to corrosion or structural failure for the operational life of the tank;

(2) The tank is cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed in a manner to prevent the release or threatened release of the stored regulated substance; and

(3) The tank has a* primary system of containment. The department may specify by rule the specific conditions and circumstances under which a secondary containment system may be required.

3. The operator shall ensure that the material used in the construction or lining of the tank is compatible with the substance to be stored.

(L. 1989 H.B. 77, et al. § 3)

*Word "a" does not appear in original rolls.

319.107. The department shall establish standards of performance for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment. The department shall establish requirements for maintaining records of any such monitoring, leak detection, inventory control, or tank testing system. An owner or operator of an underground storage tank, including an out-of-service or nonoperational tank, not found to be the source of a release for which the department has ordered nonroutine testing, who cooperates with the department, shall be reimbursed for all reasonable direct costs, as determined by the director, related to the testing and monitoring costs associated with the detection of the alleged release incurred by such owner or operator, out of the underground storage tank insurance fund.

(L. 1989 H.B. 77, et al. § 4, A.L. 1994 H.B. 1156)

319.109. The department shall establish requirements for the reporting of any releases and corrective action taken in response to a release from an underground storage tank, including the specific quantity of a regulated substance, which if released, requires reporting and corrective action. In so doing, the department shall use risk-based corrective standards which take into account the level of risk to public health and the environment associated with site-specific conditions and future land usage. The hazardous waste management commission is authorized to promulgate rules to implement this section, in accordance with section 319.137. To the extent there is a conflict between this section and section 644.143, RSMo, or 644.026, RSMo, this section shall prevail.

(L. 1989 H.B. 77, et al. § 5, A.L. 1995 H.B. 251, A.L. 2004 S.B. 901)

319.111. The department shall establish requirements for the closure of tanks, including notice prior to closure, to prevent future releases of regulated substances to the environment.

(L. 1989 H.B. 77, et al. § 6)

319.114. 1. The department shall establish rules requiring the owner or operator to maintain evidence of financial responsibility in an amount and form sufficient for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from the operation of an underground storage tank.

2. The form of the evidence of financial responsibility required by this section may be by any one, or any combination, of the following methods: cash trust fund, guarantee, insurance, surety or performance bond, letter of credit, qualification as a self-insurer, or any other method satisfactory to the department. In adopting requirements under this section, the department may specify policy or other contractual terms, conditions, or defenses which are necessary or are unacceptable in establishing the evidence of financial responsibility.

3. The amount of financial responsibility required shall not exceed the amount required for compliance with section 9003 of subtitle I of the federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended.

4. The total liability of a guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this section. Nothing in this subsection shall be construed to limit any other state or federal statutory, contractual, or common law liability of a guarantor to its owner or operator, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liability of any person under section 107 or 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (P.L. 96-510), as amended, or other applicable law.

(L. 1989 H.B. 77, et al. § 7)

319.117. 1. For the purposes of developing or assisting in the development of any regulation, conducting any study, or enforcing the provisions of sections 319.100 to 319.137, any owner or operator of an underground storage tank shall, upon the request of any duly authorized officer, employee or representative of the department, furnish information relating to such tanks, including tank equipment and contents, conduct monitoring or testing, and permit the designated officer at all reasonable times to have access to, and to copy, all records relating to such tanks. For the purposes of developing or assisting in the development of any regulation, conducting any study, enforcing the provisions of this section, or conducting any corrective action authorized in sections 319.100 to 319.137, such officers, employees, or representatives may:

(1) Enter at reasonable times any establishment or place where an underground storage tank is located or where records pertaining to underground storage tanks are located;

(2) Inspect and obtain samples from any person of any regulated substances contained in such tank; and

(3) Conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water, or ground water. Each inspection shall be commenced and completed with reasonable promptness.

2. Any records, reports, or information obtained from any persons under this section shall be available to the public except as provided in this subsection. Upon a showing satisfactory to the department that public disclosure of records, reports, or information, or a particular part thereof, to which the department officer, employee, or representative has access under this section would divulge commercial or financial information entitled to protection under state law, the department shall consider such information or a particular portion thereof to be confidential. However, the document or information may be disclosed to officers, employees, or authorized representatives of the state or of the United States, who have been charged with carrying out this act or subtitle I of the federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, or when relevant in any proceeding under sections 319.100 to 319.137.

3. The department shall, subject to appropriations, enter into an interagency agreement with the department of agriculture to authorize inspectors from the department of agriculture to conduct inspections under sections 319.100 to 319.137 in conjunction with those required under chapter 414, RSMo.

(L. 1989 H.B. 77, et al. § 8)

319.120. 1. Except as provided for in sections 319.100 to 319.137, no person shall own or operate an underground storage tank unless a certificate of registration for its operation has been issued by the department. A certificate of registration shall be issued by the department when the applicant demonstrates compliance with the provisions of sections 319.100 to 319.137.

2. The department shall issue an initial certificate of registration for each underground storage tank the term for which shall not exceed five years. Certificate renewals shall be issued for a fixed term of five years.

3. Applications for certificates of registration and certificate renewals shall be made on forms prescribed and made available by the department.

4. Within one hundred twenty days after August 28, 1989, the department shall provide owners with a copy of information submitted pursuant to the notification requirements of section 319.103, and shall specify any additional information required to comply with section 319.103.

5. Owners may apply for certificates of registration either through the submission of information required by the department in accordance with subsection 4 of this section, or through submission of information submitted pursuant to section 319.103. Until the department issues or denies a certificate of registration, owners who have applied for a certificate in accordance with the requirements of this section may operate the tank for which the application for certification has been made, provided that the owner and the operation of the tank are in compliance with sections 319.100 to 319.137.

(L. 1989 H.B. 77, et al. § 9 subsecs. 1 to 5)

319.123. Application for a certificate of registration shall be accompanied by a fee. The fee shall be fifteen dollars per tank per year assessed on a rotating basis during a five-year period. All fees collected under this subsection shall be placed in the "Underground Storage Tank Regulation Program Fund" which is hereby established in the state treasury. All moneys in the fund shall be used solely for expenses related to the administration of sections 319.100 to 319.137.

(L. 1989 H.B. 77, et al. § 9 subsec. 6)

319.125. 1. The department may deny or invalidate a certificate of registration issued under sections 319.120 and 319.123 if the department finds, after notice and a hearing pursuant to chapter 260, RSMo, that the owner has:

(1) Fraudulently or deceptively registered or attempted to register a tank; or

(2) Failed at any time to comply with any provision or requirement of sections 319.100 to 319.137 or any rules and regulations adopted by the department in accordance with the provisions of sections 319.100 to 319.137.

2. Upon the action of the department to invalidate or refuse to issue a certificate, the department shall advise the applicant of his right to have a hearing before the hazardous waste management commission. The hearing shall be conducted in accordance with the procedures established in chapter 260, RSMo.

3. When the department finds that a release from an underground storage tank presents, or is likely to present, an immediate threat to public health or safety or to the environment, it shall order correction of the problem, order cleanup or institute clean-up operations pursuant to the provisions of sections 260.500 to 260.550, RSMo.

4. If the owner or operator fails to perform or improperly performs any action required by the department to abate or eliminate an immediate threat to public health or safety or to the environment, the department or an authorized agent of the department may take any and all necessary action to abate or eliminate such threat. In addition to any other remedy or penalty provided by sections 319.100 to 319.137 or any other law, the owner or operator shall be held strictly liable for the reasonable costs incurred by the department in taking any such action.

5. The denial of reregistration or the revocation of registration of any person participating in the underground storage tank insurance fund shall, upon completion of any appeal, terminate participation in the fund.

(L. 1989 H.B. 77, et al. § 10, A.L. 2004 S.B. 901)

319.127. 1. It is unlawful for any owner or operator to cause or permit any violations of sections 319.100 to 319.137, or any standard, rule or regulation, order or permit term or condition adopted or issued hereunder. Except as provided in this section, whenever on the basis of any information, the department determines that any person is in such violation, the department may issue an order requiring compliance within a reasonable specified time period, pursuant to chapter 260, RSMo, or the department may commence a civil action in a court of competent jurisdiction in which the violation occurred for appropriate relief, including a temporary or permanent injunction.

2. If an owner or operator fails to comply with an order under this section within the time specified, the department may commence a civil action in a court of competent jurisdiction for injunctive relief to prevent any such violation or further violation or for the assessment of a civil penalty not to exceed ten thousand dollars for each day, or part thereof, the violation occurred or continues to occur, or both, as the court deems proper. A civil monetary penalty under this section shall not be assessed for a violation where an administrative penalty was assessed under section 319.139. The department may request either the attorney general or a prosecuting attorney to bring any action authorized in this section in the name of the people of the state of Missouri. Any offer of settlement to resolve a civil penalty under this section shall be in writing, shall state that an action for imposition of a civil penalty may be initiated by the attorney general or a prosecuting attorney representing the department under authority of this section, and shall identify any dollar amount as an offer of settlement which shall be negotiated in good faith through conference, conciliation and persuasion.

3. Any penalty recovered pursuant to the provisions of this section shall be handled in accordance with section 7 of article IX of the state constitution.

4. If the department alleges a violation of law or regulation of sections 319.100 to 319.139, and mandates compliance with such law or regulation by a person or entity, the department shall provide the person or entity responsible for compliance with such law or regulation with written criteria detailing exactly what action is necessary for such person or entity to comply with the law or regulation. The criteria shall include any time restrictions imposed by the department and shall be prima facie evidence of the action necessary for compliance with the law or regulation. Any person or entity meeting the criteria shall be deemed to be in full compliance with the requests of the department and evidence of compliance shall constitute an affirmative defense in any action brought by or on behalf of the department under the law or regulation. The criteria may not be amended by the department once issued to the person or entity responsible for compliance with such law or department regulation for three years from the date of issuance unless mandated by a change in state or federal law.

(L. 1989 H.B. 77, et al. § 11, A.L. 1992 H.B. 1745, A.L. 1993 S.B. 80, et al., A.L. 2004 S.B. 901)

319.129. 1. There is hereby created a special trust fund to be known as the "Petroleum Storage Tank Insurance Fund" within the state treasury which shall be the successor to the underground storage tank insurance fund. Moneys in such special trust fund shall not be deemed to be state funds. Notwithstanding the provisions of section 33.080, RSMo, to the contrary, moneys in the fund shall not be transferred to general revenue at the end of each biennium.

2. The owner or operator of any underground storage tank, including the state of Missouri and its political subdivisions and public transportation systems, in service on August 28, 1989, shall submit to the department a fee of one hundred dollars per tank on or before December 31, 1989. The owner or operator of any underground storage tank who seeks to participate in the petroleum storage tank insurance fund, including the state of Missouri and its political subdivisions and public transportation systems, and whose underground storage tank is brought into service after August 28, 1998, shall transmit one hundred dollars per tank to the board with his or her initial application. Such amount shall be a one-time payment, and shall be in addition to the payment required by section 319.133. The owner or operator of any aboveground storage tank regulated by this chapter, including the state of Missouri and its political subdivisions and public transportation systems, who seeks to participate in the petroleum storage tank insurance fund, shall transmit one hundred dollars per tank to the board with his or her initial application. Such amount shall be a one-time payment and shall be in addition to the payment required by section 319.133. Moneys received pursuant to this section shall be transmitted to the director of revenue for deposit in the petroleum storage tank insurance fund.

3. The state treasurer may deposit moneys in the fund in any of the qualified depositories of the state. All such deposits shall be secured in a manner and upon the terms as are provided by law relative to state deposits. Interest earned shall be credited to the petroleum storage tank insurance fund.

4. The general administration of the fund and the responsibility for the proper operation of the fund, including all decisions relating to payments from the fund, are hereby vested in a board of trustees. The board of trustees shall consist of the commissioner of administration or the commissioner's designee, the director of the department of natural resources or the director's designee, the director of the department of agriculture or the director's designee, and eight citizens appointed by the governor with the advice and consent of the senate. Three of the appointed members shall be owners or operators of retail petroleum storage tanks, including one tank owner or operator of greater than one hundred tanks; one tank owner or operator of less than one hundred tanks; and one aboveground storage tank owner or operator. One appointed trustee shall represent a financial lending institution, and one appointed trustee shall represent the insurance underwriting industry. One appointed trustee shall represent industrial or commercial users of petroleum. The two remaining appointed citizens shall have no petroleum-related business interest, and shall represent the nonregulated public at large. The members appointed by the governor shall serve four-year terms except that the governor shall designate two of the original appointees to be appointed for one year, two to be appointed for two years, two to be appointed for three years and two to be appointed for four years. Any vacancies occurring on the board shall be filled in the same manner as provided in this section.

5. The board shall meet in Jefferson City, Missouri, within thirty days following August 28, 1996. Thereafter, the board shall meet upon the written call of the chairman of the board or by the agreement of any six members of the board. Notice of each meeting shall be delivered to all other trustees in person or by registered mail not less than six days prior to the date fixed for the meeting. The board may meet at any time by unanimous mutual consent. There shall be at least one meeting in each quarter.

6. Six trustees shall constitute a quorum for the transaction of business, and any official action of the board shall be based on a majority vote of the trustees present.

7. The trustees shall serve without compensation but shall receive from the fund their actual and necessary expenses incurred in the performance of their duties for the board.

8. All staff resources for the Missouri petroleum storage tank insurance fund shall be provided by the department of natural resources or another state agency as otherwise specifically determined by the board. The fund shall compensate the department of natural resources or other state agency for all costs of providing staff required by this subsection. Such compensation shall be made pursuant to contracts negotiated between the board and the department of natural resources or other state agency.

9. In order to carry out the fiduciary management of the fund, the board may select and employ, or may contract with, persons experienced in insurance underwriting, accounting, the servicing of claims and rate making, and legal counsel to defend third-party claims, who shall serve at the board's pleasure. Invoices for such services shall be presented to the board in sufficient detail to allow a thorough review of the costs of such services.

10. At the first meeting of the board, the board shall elect one of its members as chairman. The chairman shall preside over meetings of the board and perform such other duties as shall be required by action of the board.

11. The board shall elect one of its members as vice chairman, and the vice chairman shall perform the duties of the chairman in the absence of the latter or upon the chairman's inability or refusal to act.

12. The board shall determine and prescribe all rules and regulations as they relate to fiduciary management of the fund, pursuant to the purposes of sections 319.100 to 319.137. In no case shall the board have oversight regarding environmental cleanup standards for petroleum storage tanks.

13. No trustee or staff member of the fund shall receive any gain or profit from any moneys or transactions of the fund. This shall not preclude any eligible trustee from making a claim or receiving benefits from the petroleum storage tank insurance fund as provided by sections 319.100 to 319.137.

14. The board may reinsure all or a portion of the fund's liability. Any insurer who sells environmental liability insurance in this state may, at the option of the board, reinsure some portion of the fund's liability.

15. The petroleum storage tank insurance fund shall expire on December 31, 2010, or upon revocation of federal regulation 40 CFR Parts 280 and 285, whichever occurs first, unless extended by action of the general assembly. After December 31, 2010, the board of trustees may continue to function for the sole purpose of completing payment of claims made prior to December 31, 2010.

16. The board shall annually commission an independent financial audit of the petroleum storage tank insurance fund. The board shall biennially commission an actuarial analysis of the petroleum storage tank insurance fund. The results of the financial audit and the actuarial analysis shall be made available to the public. The board may contract with third parties to carry out the requirements of this subsection.

(L. 1989 H.B. 77, et al. § 12 subsecs. 1 to 4, A.L. 1991 S.B. 91 & 317, A.L. 1996 S.B. 708, A.L. 1998 H.B. 1148, A.L. 2001 H.B. 453)

319.131. 1. Any owner or operator of one or more petroleum storage tanks may elect to participate in the petroleum storage tank insurance fund to partially meet the financial responsibility requirements of sections 319.100 to 319.137. Subject to regulations of the board of trustees, owners or operators may elect to continue their participation in the fund subsequent to the transfer of their property to another party. Current or former refinery sites or petroleum pipeline or marine terminals are not eligible for participation in the fund.

2. The board shall establish an advisory committee which shall be composed of insurers and owners and operators of petroleum storage tanks. The advisory committee established pursuant to this subsection shall report to the board. The committee shall monitor the fund and recommend statutory and administrative changes as may be necessary to assure efficient operation of the fund. The committee, in consultation with the board and the department of insurance, shall annually report to the general assembly on the availability and affordability of the private insurance market as a viable method of meeting the financial responsibilities required by state and federal law in lieu of the petroleum storage tank insurance fund.

3. (1) Except as otherwise provided by this section, any person seeking to participate in the insurance fund shall submit an application to the board of trustees and shall certify that the petroleum tanks meet or exceed and are in compliance with all technical standards established by the United States Environmental Protection Agency, except those standards and regulations pertaining to spill prevention control and counter-measure plans, and rules established by the Missouri department of natural resources and the Missouri department of agriculture. The applicant shall submit proof that the applicant has a reasonable assurance of the tank's integrity. Proof of tank integrity may include but not be limited to any one of the following: tank tightness test, electronic leak detection, monitoring wells, daily inventory reconciliation, vapor test or any other test that may be approved by the director of the department of natural resources or the director of the department of agriculture. The applicant shall submit evidence that the applicant can meet all applicable financial responsibility requirements of this section.

(2) A creditor, specifically a person who, without participating in and not otherwise primarily engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily for the purpose of, or in connection with, securing payment or performance of a loan or to protect a security interest in or lien on the tank or the property where the tank is located, or serves as trustee or fiduciary upon transfer or receipt of the property, may be a successor in interest to a debtor pursuant to this section, provided that the creditor gives notice of the interest to the insurance fund by certified mail, return receipt requested. Part of such notice shall include a copy of the lien, including but not limited to a security agreement or a deed of trust as appropriate to the property. The term "successor in interest" as provided in this section means a creditor to the debtor who had qualified real property in the insurance fund prior to the transfer of title to the creditor, and the term is limited to access to the insurance fund. The creditor may cure any of the debtor's defaults in payments required by the insurance fund, provided the specific real property originally qualified pursuant to this section. The creditor, or the creditor's subsidiary or affiliate, who forecloses or otherwise obtains legal title to such specific real property held as collateral for loans, guarantees or other credit, and which includes the debtor's aboveground storage tanks or underground storage tanks, or both such tanks shall provide notice to the fund of any transfer of creditor to subsidiary or affiliate. Liability pursuant to sections 319.100 to 319.137 shall be confined to such creditor or such creditor's subsidiary or affiliate. A creditor shall apply for a transfer of coverage and shall present evidence indicating a lien, contractual right, or operation of law permitting such transfer, and may utilize the creditor's affiliate or subsidiary to hold legal title to the specific real property taken in satisfaction of debts. Creditors may be listed as insured or additional insured on the insurance fund, and not merely as mortgagees, and may assign or otherwise transfer the debtor's rights in the insurance fund to the creditor's affiliate or subsidiary, notwithstanding any limitations in the insurance fund on assignments or transfer of the debtor's rights.

(3) Any person participating in the fund shall annually submit an amount established pursuant to subsection 1 of section 319.133 which shall be deposited to the credit of the petroleum storage tank insurance fund.

4. Any person making a claim pursuant to this section and sections 319.129 and 319.133 shall be liable for the first ten thousand dollars of the cost of cleanup associated with a release from a petroleum storage tank without reimbursement from the fund. The petroleum storage tank insurance fund shall assume all costs, except as provided in subsection 5 of this section, which are greater than ten thousand dollars but less than one million dollars per occurrence or two million dollars aggregate per year. The liability of the petroleum storage tank insurance fund is not the liability of the state of Missouri. The provisions of sections 319.100 to 319.137 shall not be construed to broaden the liability of the state of Missouri beyond the provisions of sections 537.600 to 537.610, RSMo, nor to abolish or waive any defense which might otherwise be available to the state or to any person. The presence of existing contamination at a site where a person is seeking insurance in accordance with this section shall not affect that person's ability to participate in this program, provided the person meets all other requirements of this section. Any person who qualifies pursuant to sections 319.100 to 319.137 and who has requested approval of a project for remediation from the fund, which request has not yet been decided upon shall annually be sent a status report including an estimate of when the project may expect to be funded and other pertinent information regarding the request.

5. The fund shall provide coverage for third-party claims involving property damage or bodily injury caused by leaking petroleum storage tanks whose owner or operator is participating in the fund at the time the release occurs or is discovered. Coverage for third-party bodily injury shall not exceed one million dollars per occurrence. Coverage for third-party property damage shall not exceed one million dollars per occurrence. The fund shall not compensate an owner or operator for repair of damages to property beyond that required to contain and clean up a release of a regulated substance or compensate an owner or operator or any third party for loss or damage to other property owned or belonging to the owner or operator, or for any loss or damage of an intangible nature, including, but not limited to, loss or interruption of business, pain and suffering of any person, lost income, mental distress, loss of use of any benefit, or punitive damages.

6. The fund shall, within limits specified in this section, assume costs of third-party claims and cleanup of contamination caused by releases from petroleum storage tanks. The fund shall provide the defense of eligible third-party claims including the negotiations of any settlement.

7. Nothing contained in sections 319.100 to 319.137 shall be construed to abrogate or limit any right, remedy, causes of action, or claim by any person sustaining personal injury or property damage as a result of any release from any type of petroleum storage tank, nor shall anything contained in sections 319.100 to 319.137 be construed to abrogate or limit any liability of any person in any way responsible for any release from a petroleum storage tank or any damages for personal injury or property damages caused by such a release.

8. (1) The fund shall provide moneys for cleanup of contamination caused by releases from petroleum storage tanks, the owner or operator of which is participating in the fund or the owner or operator of which has made application for participation in the fund by December 31, 1997, regardless of when such release occurred, provided that those persons who have made application are ultimately accepted into the fund. Applicants shall not be eligible for fund benefits until they are accepted into the fund. This section shall not preclude the owner or operator of petroleum storage tanks coming into service after December 31, 1997, from making application to and participating in the petroleum storage tank insurance fund.

(2) Notwithstanding the provisions of section 319.100 and the provisions of subdivision (1) of this section, the fund shall provide moneys for cleanup of contamination caused by releases from petroleum storage tanks owned by school districts all or part of which are located in a county of the third classification without a township form of government and having a population of more than ten thousand seven hundred but less than eleven thousand inhabitants, and which make application for participation in the fund by August 28, 1999, regardless of when such release occurred. Applicants shall not be eligible for fund benefits until they are accepted into the fund, and costs incurred prior to that date shall not be eligible expenses.

9. (1) The fund shall provide moneys for cleanup of contamination caused by releases from underground storage tanks which contained petroleum and which have been taken out of use prior to December 31, 1997, provided such sites have been documented by or reported to the department of natural resources prior to December 31, 1997, and provided further that the fund shall make no reimbursements for expenses incurred prior to August 28, 1995. The fund shall also provide moneys for cleanup of contamination caused by releases from underground storage tanks which contained petroleum and which have been taken out of use prior to December 31, 1985, if the current owner of the real property where the tanks are located purchased such property before December 31, 1985, provided such sites are reported to the fund on or before June 30, 2000. The fund shall make no payment for expenses incurred at such sites prior to August 28, 1999. Nothing in sections 319.100 to 319.137 shall affect the validity of any underground storage tank fund insurance policy in effect on August 28, 1996.

(2) An owner or operator who submits a request as provided in this subsection is not required to bid the costs and expenses associated with professional environmental engineering services. The board may disapprove all or part of the costs and expenses associated with the environmental engineering services if the costs are excessive based upon comparable service costs or current market value of similar services. The owner or operator shall solicit bids for actual remediation and cleanup work as provided by rules of the board.

10. The fund shall provide moneys for cleanup of contamination caused by releases from aboveground storage tanks utilized for the sale of products regulated by chapter 414, RSMo, which have been taken out of use prior to December 31, 1997, provided such sites have been documented by or reported to the department of natural resources prior to December 31, 1997, and provided further that the fund shall make no reimbursements for expenses incurred prior to July 1, 1997.

(L. 1989 H.B. 77, et al. § 12 subsecs. 5 to 9, A.L. 1991 S.B. 91 & 317, A.L. 1994 H.B. 1156, A.L. 1995 H.B. 251, A.L. 1996 S.B. 708, A.L. 1998 H.B. 1148 merged with S.B. 852 & 913, A.L. 1999 H.B. 603, et al., A.L. 2001 H.B. 453)

319.132. 1. The board shall assess a surcharge on all petroleum products within this state which are enumerated by section 414.032, RSMo. Except as specified by this section, such surcharge shall be administered pursuant to the provisions of subsections 1 to 3 of section 414.102, RSMo, and subsections 1 and 2 of section 414.152, RSMo. Such surcharge shall be imposed upon such petroleum products within this state and shall be assessed on each transport load, or the equivalent of an average transport load if moved by other means. All revenue generated by the assessment of such surcharges shall be deposited to the credit of the special trust fund known as the petroleum storage tank insurance fund.

2. Any person who claims to have paid the surcharge in error may file a claim for a refund with the board within three years of the payment. The claim shall be in writing and signed by the person or the person's legal representative. The board's decision on the claim shall be in writing and may be delivered to the person by first class mail. Any person aggrieved by the board's decision may seek judicial review by bringing an action against the board in the circuit court of Cole County pursuant to section 536.150, RSMo, no later than sixty days following the date the board's decision was mailed. The department of revenue shall not be a party to such proceeding.

3. The board shall assess and annually reassess the financial soundness of the petroleum storage tank insurance fund.

4. (1) The board shall set, in a public meeting with an opportunity for public comment, the rate of the surcharge that is to be assessed on each such transport load or equivalent but such rate shall be no more than sixty dollars per transport load or an equivalent thereof. A transport load shall be deemed to be eight thousand gallons.

(2) The board may increase or decrease the surcharge, up to a maximum of sixty dollars, only after giving at least sixty days' notice of its intention to alter the surcharge; provided however, the board shall not increase the surcharge by more than fifteen dollars in any year. The board must coordinate its actions with the department of revenue to allow adequate time for implementation of the surcharge change.

(3) If the fund's cash balance on the first day of any month exceeds the sum of its liabilities, plus ten percent, the transport load fee shall automatically revert to twenty-five dollars per transport load on the first day of the second month following this event.

(4) Moneys generated by this surcharge shall not be used for any purposes other than those outlined in sections 319.129 through 319.133 and section 319.138. Nothing in this subdivision shall limit the board's authority to contract with the department of natural resources pursuant to section 319.129 to carry out the purposes of the fund as determined by the board.

5. The board shall ensure that the fund retain a balance of at least twelve million dollars but not more than one hundred million dollars. If, at the end of any quarter, the fund balance is above one hundred million dollars, the treasurer shall notify the board thereof. The board shall suspend the collection of fees pursuant to this section beginning on the first day of the first quarter following the receipt of notice. If, at the end of any quarter, the fund balance is below twenty million dollars, the treasurer shall notify the board thereof. The board shall reinstate the collection of fees pursuant to this section beginning on the first day of the first quarter following the receipt of notice.

6. Railroad corporations as defined in section 388.010, RSMo, and airline companies as defined in section 155.010, RSMo, shall not be subject to the load fee described in this chapter nor permitted to participate in or make claims against the petroleum storage tank insurance fund created in section 319.129.

(L. 1991 S.B. 91 & 317, A.L. 1995 H.B. 251, A.L. 1996 S.B. 708, A.L. 1998 S.B. 619, A.L. 2001 H.B. 453)

(1995) Where an underground storage tank insurance fund is financed by fees imposed upon "persons" who first receive petroleum products within Missouri and not to "persons" who operate underground storage tanks, the application of section's surcharge violates the commerce clause of the United States Constitution. Surcharge is a fee and not a tax. Reidy Terminal, Inc. v. Director of Revenue, 898 S.W.2d 540 (Mo. en banc).

319.133. 1. The board shall, in consultation with the advisory committee established pursuant to subsection 2 of section 319.131, establish, by rule, the amount which each owner or operator who participates in the fund shall pay annually into the fund, but such amount shall not exceed the limits established in this section.

2. Each participant shall annually pay an amount which shall be at least one hundred dollars per year but not more than three hundred dollars per year for any tank, as established by the board by rule.

3. No new registration fee is required for a change of ownership of a petroleum storage tank.

4. The board shall establish procedures where persons owning fifty or more petroleum storage tanks may pay any fee established pursuant to subsection 1 of this section in installments.

5. All rules applicable to the former underground storage tank insurance fund not inconsistent with the provisions of sections 319.100 to 319.137 shall apply to the petroleum storage tank insurance fund as of August 28, 1996.

(L. 1989 H.B. 77, et al. § 12 subsecs. 10, 11, A.L. 1991 S.B. 91 & 317, A.L. 1996 S.B. 708, A.L. 1998 H.B. 1148, A.L. 2001 H.B. 453)

319.135. No person shall be liable under sections 319.100 to 319.137 for damages as a result of actions taken or omitted in the course of rendering care, assistance or advice at the direction of a coordinator appointed by the department, with respect to an incident creating a danger to the public health or welfare or the environment as a result of any release of petroleum substances or the threat thereof. This section shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person or for reckless, willful, or wanton misconduct.

(L. 1989 H.B. 77, et al. § 13)

319.137. 1. Rules and regulations promulgated by the United States Environmental Protection Agency under subtitle I of the federal Resource Conservation Recovery Act of 1976 (P.L. 94-580), as amended, may be adopted by the department by reference. The department may adopt rules and regulations that are more stringent than those issued by the United States Environmental Protection Agency if such rules or regulations are necessary to protect human health or the environment. Rules and regulations promulgated under sections 319.100 to 319.139 shall be submitted to and reviewed by the advisory committee established by subsection 2 of section 319.131 prior to publication. Any such rule, except those promulgated by the petroleum storage tank insurance fund board of trustees, shall be adopted only after due notice and public hearing in accordance with the provisions of this section, chapter 260, RSMo, and chapter 536, RSMo.

2. No rule or portion of a rule promulgated under the authority of sections 319.100 to 319.139 shall become effective until it has been approved by the joint committee on administrative rules in accordance with the procedures provided herein, and the delegation of the legislative authority to enact law by the adoption of such rules is dependent upon the power of the joint committee on administrative rules to review and suspend rules pending ratification by the senate and the house of representatives as provided herein.

3. Upon filing any proposed rule with the secretary of state, the filing agency shall concurrently submit such proposed rule to the committee, which may hold hearings upon any proposed rule or portion thereof at any time.

4. A final order of rulemaking shall not be filed with the secretary of state until thirty days after such final order of rulemaking has been received by the committee. The committee may hold one or more hearings upon such final order of rulemaking during the thirty-day period. If the committee does not disapprove such order of rulemaking within the thirty-day period, the filing agency may file such order of rulemaking with the secretary of state and the order of rulemaking shall be deemed approved.

5. The committee may, by majority vote of the members, suspend the order of rulemaking or portion thereof by action taken prior to the filing of the final order of rulemaking only for one or more of the following grounds:

(1) An absence of statutory authority for the proposed rule;

(2) An emergency relating to public health, safety or welfare;

(3) The proposed rule is in conflict with state law;

(4) A substantial change in circumstance since enactment of the law upon which the proposed rule is based;

(5) That the rule is arbitrary and capricious.

6. If the committee disapproves any rule or portion thereof, the filing agency shall not file such disapproved portion of any rule with the secretary of state and the secretary of state shall not publish in the Missouri Register any final order of rulemaking containing the disapproved portion.

7. If the committee disapproves any rule or portion thereof, the committee shall report its findings to the senate and the house of representatives. No rule or portion thereof disapproved by the committee shall take effect so long as the senate and the house of representatives ratify the act of the joint committee by resolution adopted in each house within thirty legislative days after such rule or portion thereof has been disapproved by the joint committee.

8. Upon adoption of a rule as provided herein, any such rule or portion thereof may be suspended or revoked by the general assembly either by bill or, pursuant to section 8, article IV of the constitution, by concurrent resolution upon recommendation of the joint committee on administrative rules. The committee shall be authorized to hold hearings and make recommendations pursuant to the provisions of section 536.037, RSMo. The secretary of state shall publish in the Missouri Register, as soon as practicable, notice of the suspension or revocation.

(L. 1989 H.B. 77, et al. § 14, A.L. 1993 S.B. 52, A.L. 1995 H.B. 251 and S.B. 3, A.L. 2004 S.B. 901)

319.138. Notwithstanding the provisions of section 319.100 and subdivision (1) of subsection 3 of section 319.131, the fund shall provide moneys for cleanup of contamination caused by the releases from piping or related equipment of a petroleum storage tank with a capacity of five thousand gallons or less when such retailer is the sole provider of retail fuels within a five-mile area. The costs of the cleanup must be incurred after April 1, 1999, and prior to April 1, 2000. The retailer must make application for participation in the fund by August 28, 1999.

(L. 1999 H.B. 603, et al. § 3)

319.139. 1. In addition to any other remedy provided by law, upon a determination by the director that a provision of sections 319.100 to 319.137 or a standard, limitation, order, rule or regulation promulgated pursuant thereto, or a term or condition of any permit has been violated, the director may issue an order assessing an administrative penalty upon the violator under this section. An administrative penalty shall not be imposed until the director has sought to resolve the violation through conference, conciliation or persuasion and shall not be imposed for minor violations of sections 319.100 to 319.137 or minor violations of any standard, limitation, order, rule or regulation promulgated pursuant to sections 319.100 to 319.137 or minor violations of any term or condition of a permit issued pursuant to sections 319.100 to 319.137. If the violation is resolved through conference, conciliation and persuasion, no administrative penalty shall be assessed unless the violation has caused, or has the potential to cause, a risk to human health or to the environment, or has caused or has potential to cause pollution, or was knowingly committed, or is defined by the United States Environmental Protection Agency as other than minor. Any order assessing an administrative penalty shall state that an administrative penalty is being assessed under this section and that the person subject to the penalty may appeal as provided by this section. Any such order that fails to state the statute under which the penalty is being sought, the manner of collection or rights of appeal shall result in the state's waiving any right to collection of the penalty.

2. The hazardous waste management commission shall promulgate rules and regulations for the assessment of administrative penalties. The amount of the administrative penalty assessed per day of violation for each violation under this section shall not exceed the amount of the civil penalty specified in section 319.127. Such rules shall reflect the criteria used for the administrative penalty matrix as provided for in the Resource Conservation and Recovery Act, 42 U.S.C. 6928(a), Section 3008(a), and the harm or potential harm which the violation causes, or may cause, the violator's previous compliance record, and any other factors which the hazardous waste management commission may reasonably deem relevant. An administrative penalty shall be paid within sixty days from the date of issuance of the order assessing the penalty. Any person subject to an administrative penalty may appeal to the commission as provided in section 260.400, RSMo. An appeal will stay the due date of such administrative penalty until the appeal is resolved. Any person who fails to pay an administrative penalty by the final due date shall be liable to the state for a surcharge of fifteen percent of the penalty plus ten percent per annum on any amounts owed. Any administrative penalty paid pursuant to this section shall be handled in accordance with section 7 of article IX of the state constitution. An action may be brought in the appropriate circuit court to collect any unpaid administrative penalty, and for attorney's fees and costs incurred directly in the collection thereof.

3. An administrative penalty shall not be increased in those instances where department action, or failure to act, has caused a continuation of the violation that was a basis for the penalty. Any administrative penalty must be assessed within two years following the department's initial discovery of such alleged violation, or from the date the department in the exercise of ordinary diligence should have discovered such alleged violation.

4. Any final order imposing an administrative penalty is subject to judicial review upon the filing of a petition pursuant to section 536.100, RSMo, by any person subject to the administrative penalty.

5. The state may elect to assess an administrative penalty, or, in lieu thereof, to request that the attorney general or prosecutor file an appropriate legal action seeking a civil penalty in the appropriate circuit court.

(L. 1991 S.B. 45, A.L. 1993 S.B. 80, et al., A.L. 2004 S.B. 901)

319.200. 1. Notwithstanding other provisions of law to the contrary, the state geologist and the U. S. Geological Survey shall notify the state emergency management agency of each city, town, village or county of this state which can be expected to experience an intensity of ground shaking equivalent to a Modified Mercalli of VII or above from an earthquake occurring along the New Madrid Fault with a potential magnitude of 7.6 on the Richter Scale, shall adopt an ordinance or order requiring that new construction, additions and alterations, as such term is defined by either the uniform building code or building officials and code administrators code, to existing buildings and structures within the city, town, village or county comply with the standards for seismic design and construction of the building officials and code administrators code or of the uniform building code. Each city, town, village or county required to adopt seismic design and construction provisions pursuant to this subsection shall adopt an ordinance or order requiring that new construction, additions and alterations, as such term is defined by either the uniform building code or building officials and code administrators code, comply with the standards for seismic design and construction of the 1990 or later edition of either the uniform building code or the building officials and code administrators code.

2. In no event shall sections 319.200 to 319.207 nor any ordinances or orders adopted by any city, town, village or county of this state be construed to mandate that existing buildings, by reason of any proposed addition or alteration, be further modified or reconstructed so as to comply with the current code relevant to seismic considerations. Seismic design criteria as to additions and alterations apply only to structural components constituting the addition or alteration and shall not be applied to require reconstruction or fortification of existing structures proposed to be altered. If any addition or alteration adversely affects portions of existing facilities which are not being altered, then those parts thus affected may require evaluation and possible reinforcement such that the additions or alterations will result in a structure that is at least as safe as it was prior to the additions or alterations.

(L. 1990 S.B. 539 § 1 subsecs. 1, 6, A.L. 1991 S.B. 347, A.L. 1992 H.B. 1434 & 1490, H.B. 1574, A.L. 1996 S.B. 826)

319.203. 1. The provisions of sections 319.200 to 319.207 shall apply to:

(1) All buildings upon which construction was begun after January 1, 1994, for which leases are executed by political subdivisions of this state;

(2) All buildings upon which construction was begun after January 1, 1994, for which leases are executed by the state or any institution of higher education, except that, this subdivision shall apply only to twenty-five percent of such leases executed between August 28, 1991, and January 1, 1996, and fifty percent of such leases executed between January 1, 1996, and January 1, 1998, and seventy-five percent of such leases executed between January 1, 1998, and January 1, 2000, and after January 1, 2000, this subdivision shall apply to all such leases. The commissioner of administration shall determine which leases shall be subject to the percentages established by this subdivision.

2. The provisions of sections 319.200 to 319.207 shall not apply to:

(1) Any building owned by the state, any institution of higher education, or any political subdivision upon which construction was begun or finished before August 28, 1991;

(2) Any private structure with less than ten thousand square feet in total area, except that this subdivision shall not operate to prevent a city, town, village or county from adopting an ordinance or order requiring that private structures with less than ten thousand square feet in total area comply with seismic design and construction standards of either the uniform building code or the building officials* and code administrators code; and

(3) Any single-family or duplex residence.

3. A city, town, village or county shall be deemed in compliance with the requirements of sections 319.200 to 319.207 when such town, city, village or county passes an ordinance or order requiring compliance with sections 319.200 to 319.207. Nothing in sections 319.200 to 319.207 requires the political subdivision to establish an inspection program.

(L. 1990 S.B. 539 § 1 subsecs. 2, 3, 4, A.L. 1991 S.B. 347)

*Word "officials" does not appear in original rolls.

319.205. The commissioner of administration shall notify each city, town, village or county required under sections 319.200 to 319.207 to adopt an ordinance or order of its obligations under sections 319.200 to 319.207.

(L. 1990 S.B. 539 § 1 subsec. 7)

319.207. Beginning January 1, 1991, any city, town, village or county which can be expected to experience an intensity of ground shaking equivalent to a Modified Mercalli of VII or above from an earthquake occurring along the New Madrid Fault with a potential magnitude of 7.6 on the Richter Scale, and which does not comply with the requirements of sections 319.200 to 319.207 shall not be eligible to receive any state aid, assistance, grant, loan or reimbursement until compliance has been proven to the satisfaction of the commissioner of administration. The commissioner of administration shall notify the state treasurer and the attorney general of any city, town, village or county which, within ninety days after notice of noncompliance, does not comply with the requirements of sections 319.200 to 319.207. Upon receipt of notice of noncompliance by any city, town, village or county from the commissioner of administration, the state treasurer shall withhold any state aid, assistance, grant, loan or reimbursement otherwise due the city, town, village or county until that city, town, village or county has established compliance with sections 319.200 to 319.207 to the satisfaction of the commissioner of administration. The attorney general shall bring any action necessary to recover state aid, assistance, grant, loan or reimbursement received by a city, town, village or county not in compliance with the provisions of this act.

(L. 1990 S.B. 539 § 1 subsec. 5)

319.300. Sections 319.300 to 319.345 shall be known as the "Missouri Blasting Safety Act". The purpose of sections 319.300 to 319.345 shall be to foster the safe use of explosives in mining and construction by establishing and enforcing consistent statewide industry standards for licensing of blasters and persons using explosives. The provisions of sections 319.300 to 319.345 or any rules or regulations promulgated thereunder shall not be construed to amend, supersede, or conflict with any requirement of federal law or regulation governing the manufacturing, transporting, or storage of explosives.

(L. 2007 H.B. 298)

319.303. As used in sections 319.300 to 319.345, the following terms shall mean:

(1) "Blast", detonation of explosives;

(2) "Blast site", the area where explosives are handled during loading of a bore hole, including fifty feet in all directions from the perimeter formed by loaded holes. A minimum of thirty feet may replace the fifty feet requirement if the perimeter of loaded holes is marked and separated from nonblast site areas by a barrier. The fifty feet or thirty feet distance requirements, as applicable, shall apply in all directions along the full depth of the bore hole;

(3) "Blaster", a person qualified to be in charge of and responsible for the loading and firing of an explosive or explosive material;

(4) "Blasting", the use of explosives in mining or construction;

(5) "Board", the state blasting safety board created in section 319.324;

(6) "Bore hole", a hole made with a drill, auger, or other tool in which explosives are placed in preparation for detonation;

(7) "Burden", the distance from an explosive charge to the nearest free or open face at the time of detonation;

(8) "Business day", any day of the week except Saturday, Sunday, or a federal or state holiday;

(9) "Deck", charge of explosives separated from other charges by stemming;

(10) "Delay period", the time delay provided by blasting caps which permits firing of bore holes in sequence;

(11) "Detonation", the action of converting the chemicals in an explosive charge to gases at a high pressure by means of a self-propagating shock wave passing through the charge;

(12) "Detonator", any device containing initiating or primary explosive that is used for initiating detonation of another explosive material. A detonator may not contain more than ten grams of total explosives by weight, excluding ignition or delay charges. The term includes, but is not limited to, electric blasting caps of instantaneous and delay types, blasting caps for use with safety fuse, detonating cord delay connectors, and nonelectric instantaneous and delay blasting caps which use detonating cord, nonelectric shock tube, or any other replacement for electric leg wires;

(13) "Explosives", any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion, including, but not limited to, dynamite, black powder, pellet powder, initiating explosives, detonators, millisecond connectors, safety fuses, squibs, detonating cord, igniter cord, and igniters; includes explosive materials such as any blasting agent, emulsion explosive, water gel, or detonator. Explosive materials determined to be within the coverage of sections 319.300 to 319.345 shall include all such materials listed in Chapter 40 of Title 18 of the United States Code, as amended, as issued at least annually by the Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives;

(14) "Fire protection official", an authorized representative of a municipal fire department, fire protection district, or volunteer fire protection association for the area where blasting occurs;

(15) "Firing", causing explosives to be detonated by the use of a fuse, electric detonator, or nonelectric shock tube;

(16) "Fugitive from justice", any person who has fled from the jurisdiction of any court of record to avoid prosecution for any crime or to avoid giving testimony in any criminal proceeding. The term shall also include any person who has been convicted of any crime and has fled to avoid case disposition;

(17) "Initiation system", components of an explosive charge that cause the charge to detonate, such as primers, electric detonators, and detonating charge;

(18) "Loading", placing of explosives in a hole in preparation for detonation;

(19) "Local government", a city, county, fire protection district, volunteer fire protection association, or other political subdivision of the state;

(20) "Person using explosives", any individual, proprietorship, partnership, firm, corporation, company, or joint venture that is required to hold authority to receive or use explosives under statutes or regulations adm