14-271-101. Title -- Back To Top
This chapter may be cited as the "Arkansas Underground Facilities
Damage Prevention Act."
14-271-102. Definitions -- Back To Top
As used in this chapter, unless the context otherwise requires:
(1) Approximate location of underground facilities means a strip of land
at least three feet (3") wide but not wider
than the width of the facility plus one and one-half feet (1 1/2') on either
side of the facility;
(2) "Damage" includes the substantial weakening of structural
or lateral support of underground facilities, the penetration or destruction
of any protective coating, housing, or other protective device of underground
facilities, the partial or complete severance of an underground facility,
and the rendering of any underground facility inaccessible;
(3) "Demolish" or "demolition" means any operation
by which a structure or mass of material is wrecked, razed, rendered, moved,
or removed by means of any powered tools, powered equipment, exclusive
of transportation equipment, or discharge explosives;
(4) "Excavate" or "excavation" means to dig, compress,
or remove earth, rock, or other materials in or on the ground by use of
mechanized equipment or blasting including, but not necessarily limited
to, auguring, boring, backfilling, drilling, grading, pile driving, plowing
in, pulling in, trenching, tunneling, and plowing;
(5) "Mechanized equipment" means equipment operated by means
of mechanical power including trenchers, bulldozers, power shovels, augers,
backhoes, scrapers, drills, cable and pipe plows, and other equipment used
for plowing in or pulling in cable or pipe;
(6) "Member operator" means any operator that is a member of
the Arkansas One Call Center;
(7) "One Call Center" means a center operated by an organization
which has as one of its purposes to receive notification of planned excavation
and demolition in a specified area from excavato5rs, and to disseminate
such notification of planned excavation or demolition to operators who
are members of the center;
(8) "Operator" means any public utility as defined in §23-1-101,
which owns or operates an underground facility; all municipally owned or
operated water, sewer, or electric utilities; any gas utility however owned
or operated; all master meter operators whose underground facilities cross
property other than their own or under public rights-of-way; and any other
water or sewer utilities, owned or operated individually or by property
owners associations, improvement districts, or property developers, serving
in excess of one hundred (100) customers;
(9) "Person" means any individual, any corporation, partnership,
association, or any other entity organized under the laws of any state,
any subdivision or instrumentality of a state, and any employee, agent,
or legal representative thereof;
(10) "Pre engineered project" means a public project wherein
the public agency responsible for the project, as part of its engineering
and contract procedures, holds a formal meeting prior to the commencement
of any construction work on the project in which all persons determined
by the public agency to have underground facilities located within the
construction area of the project are invited to attend and given an opportunity
to verify or inform the public agency of the location of their underground
facilities, if any, within the construction area and wherein the location
of all known underground facilities are located or noted on the engineering
drawing and specifications for the project;
(11) "Public agency" means the state or any board, commission,
or agency of the state and any city, town county, subdivision thereof,
or other governmental entity;
(12) "Right-of-way" means any area along which an underground
facility is located;
(13) "Underground facility" means any line, system, and appurtenance
or facility used for producing storing, conveying, transmitting, or distributing
communications, electricity, gas, heat, water, steam or sewage, but shall
not include cable television facilities;
(14) "Underground pipeline facilities" means any underground
pipeline facility used to transport natural gas or hazardous liquids. However,
this definition does not apply to persons, including operator's master
meters, whose primary activity does not include the production, transportation,
or marketing of gas or hazardous liquids or to master-metered systems whose
underground facilities do not cross property other than their own or are
not located under public rights-of way; and.
(15) "Working
day" means every day, except Saturday, Sunday, and national and legal
state holidays.
14-271-103. Applicability -- Back To Top
(a) The Arkansas Public Service Commission shall, after public comment
and hearing as provided below, promulgate regulations providing for
an Arkansas One Call Center to be established and maintained by all
operators subject to the jurisdiction of the commission.
(b) The regulations shall at a minimum be consistent with the requirements
of any federal law relating to One Call Centers, and otherwise shall provide
standards and guidelines for the organization and administration by operators
of the Arkansas One Call Center consistent with the terms, purposes, and
requirements of this chapter, provided, however, that nothing herein, nor
in the rules to be promulgated by the commission, shall be construed to
restrict, diminish, or otherwise affect the rate making authority and responsibility
of the commission with respect to One Call System expenditures by utilities
or with respect to any other matter.
14-271-104. Penalties
--- Civil remedies -- Back To Top
(a)(1) Except as provided in subdivision (a)(2) of this subsection, any
person who violates any provisions of this chapter shall be subject to
a civil penalty not to exceed two thousand five hundred dollars ($2,500)
for each violation.
2) Operators of underground pipeline facilities
and excavators shall, upon violation of any applicable requirements of 49
C.F.R. Part 198, Subpart C, be subject to civil penalties not to exceed
twenty-five thousand dollars ($25,000) for each violation for each day that
the violation persists, except that the maximum civil penalty shall not
exceed five hundred thousand dollars ($500,000) for any related series of
violations.
(b)(1) Actions to recover the penalty provided for in this section shall
be brought by the Attorney General of Arkansas, the county prosecutor or
the city attorney at the request of any person in the circuit court in
the county in which the cause, or some part thereof, arose or in which
the defendant has its principal place of business or resides.
(2) All penalties recovered in any such action shall
be paid into the General Fund of the state, county or municipality that
prosecutes the action.
(c) The Attorney General of Arkansas, the county prosecutor or the city
attorney shall, at the request of any person, bring an action in a court
of competent jurisdiction to enjoin any violation of 49 C.F.R. Part 198,
Subpart C committed by operators of underground pipeline facilities and
excavators.
(d) Nothing in this chapter shall be construed to modify or repeal existing
laws pertaining to the tort liability of local governments and their employees.
(e) This chapter does not affect any civil remedies for personal injury
or property damage, including underground facilities, except as otherwise
specifically provided for in this chapter.
(f) Neither the Arkansas Highway Commission, Arkansas State Highway and
Transportation Department nor their officers, agents, employees or contractors,
nor the county judges or their road departments shall be subject to the
provisions of this section.
14-271-105. Ordinance
or resolution adopting provisions -- Back To Top
(a) Every city of the first class, city of the second class, incorporated
town, county, and rural water association, whether formed as a corporation,
improvement district, or other legal entity, shall adopt an ordinance or
other formal resolution no later than January 1, 1989, indicating whether
the city, county, or rural water association desires to be subject to the
provisions of the One Call membership requirements of § 14-271-107 of
this chapter. However, every first-class city, second-class city, incorporated
town, county, and rural water association which fails to adopt an ordinance
or resolution indicating whether it desires to not be covered by the provisions
of this chapter shall be subject to each and every provision of this chapter
on and after January 1, 1989.
(b) Notwithstanding subsection (a) of this section, every city of the
first-class, city of the second-class, incorporated town, county and
rural water association whether formed as a corporation, improvement
district, or other legal entity which operates an underground pipeline
facility must become a member of the One Call Center unless otherwise
provided herein.
(c) Notwithstanding the issuance of a resolution opting out of One Call
membership under subsection (a), any city of the first class, city of
the second class, incorporated town, county and rural water association,
whether formed as a corporation, improvement district, or other legal
entity, shall remain subject to the provisions and requirements of Ark.
Code Ann. §§ 14-271-110(a)(2), 14-271-111, 14*271-112, and
14-271-113.
14-271-106. Permittees
to comply -- Back To Top
A permit issued pursuant to law authorizing excavation or demolition operation
shall not be deemed to relieve a person from the responsibility for complying
with the provisions of this chapter.
14-271-107. Membership
in One Call Center -- Back To Top
(a) All operators of underground facilities shall become members of the
One Call Center; however, the commission may provide, by rule or by orders,
for such exemptions or waivers concerning some or all of the requirements
of membership as may appear reasonable and proper, as long as the exemption
or waiver is not prohibited by statute or federal law.
(b) Additionally, other persons who own or control underground facilities
or similar facilities may, upon application, become members of the One
Call Center.
(c) Membership shall be evidenced by participation in, and payment for,
the services furnished by the One Call Center.
14-271-108. Notice
to One Call Center --- Changes --- Files -- Back To Top
(a)(1) Each member operator having underground facilities, including those
facilities that have been abandoned in place by the operator but not yet
physically removed and can be identified, shall file a notice with the
One Call Center that the operator has underground facilities.
(2) The notice shall include a list of the geographic areas
where facilities are located, providing as much specific information as reasonably
possible, the name of the member operator, and the name, title, address, and
telephone number of its representative designated to respond to notices of
intent to excavate.
(b) Changes to any of the information contained in the notice filed in
accordance with subsection (a) of this section shall be filed with the
One Call Center within thirty (30) days of the change.
(c) The One Call center shall file the notice submitted by member operators
and shall maintain an index of the notices.
(d) Member operators shall maintain records and drawings of all changes
and additions to their underground facilities.
14-271-109. Notice to
One Call Center --- Exceptions -- Back To Top
(a) Compliance with notice requirements of §14-271-112 is not required
for:
(1) The moving of earth by tools manipulated only by
human or animal power; or
(2) Any form of cultivation for agricultural purposes,
digging for postholes on private property, farm ponds, land clearing, or
other normal agricultural purposes which are not on a right- of-way of an
operator; or
(3) Work by a public agency or its contractors on a pre
engineered project; or
(4) The opening of a grave in a cemetery; or
(5) Routine road work and general maintenance as performed
in the right-of-way by state or county maintenance departments, but excluding
any work or maintenance involving change of grade or clearing or widening
drainage ditches.
(b)(1) Compliance with notice requirements of §14-271-112 is not required
of persons responsible for repair or restoration of service, or to ameliorate
an imminent danger to life, health, property, or public safety.
(2) However, those persons shall give, as soon as practicable,
oral notice of the emergency excavation or demolition to either the One
Call Center or to each operator having underground facilities located in
the area where the excavation or demolition is to be performed and request
emergency assistance from each operator so identified in locating and providing
immediate protection to its underground facilities. However, if such notice
is given to an operator of an underground pipeline facility, the person
giving the notification shall also notify the One Call Center as soon as
is reasonably possible.
(3) An imminent danger to life, health, property or public
safety exists whenever there is a substantial likelihood that loss of life,
health, or property will result before the procedures under and §14-271-112
can be fully complied with.
14-271-110. Notifying
operators of underground facilities --- Identification of location -- Back To Top
(a)(1) Within four (4) working hours after receiving notification of intent
to excavate or demolish, the One Call Center shall in turn notify all member
operators of underground facilities in the affected area of the proposed
activity.
(2)(A) Unless otherwise agreed to between the excavators
and operator, within two (2) working days after notification
from either the One Call Center or the person proposing the activity, the
operator shall identify the approximate location of the facilities by field-marking
on the surface by paint, dye, stakes, or any other clearly visible marking
which designates the horizontal course of the facilities.
(B) If the operator has no facilities in the area, the
operator shall so inform the person proposing the activity, either by contacting
that person or by leaving such information at the site.
(3) When an underground facility is being located, the
operator shall furnish the excavator information which identifies the approximate
center line, approximate or estimated depth when known, and dimensions of
the underground facility.
(4)(A) When excavating within the approximate location
of an underground facility, the excavator shall uncover the facility using
a method approved by the operator.
(B) No power-driven tools or equipment
shall be used without the express approval of the operator.
(b) Subject to the provisions§14-271-112(b) governing the duration
of a locate request, when projects are delayed or are lengthy in time and
location, the operator and excavator shall establish and maintain coordination
regarding location, marking, and identification of the facilities until
all excavation or demolition is completed.
14-271-111. Color code
for marking facility and excavation or demolition locations -- Back To Top
(a)(1) If the approximate location of an underground facility is marked
with temporary markers, stakes, or other physical means, the operator shall
follow the color coding prescribed as follows:
Facility and Type of Product .............................. Specific Group
Identifying Color
Electric Power Distribution and Transmission ...... Safety Red
Municipal Electric Systems ............................... Safety Red
Gas Distribution and Transmission ..................... High Visibility
Safety Yellow
Oil Distribution and Transmission ....................... High Visibility
Safety Yellow
Dangerous Materials, Product Lines ................... High Visibility
Safety Yellow
Telephone and Telegraph Systems .................... Safety Alert
Orange
Cable Television ............................................... Safety
Alert Orange
Police and Fire Communications ....................... Safety Alert Orange
Water Systems ............................................... Safety
Precaution Blue
Sewer Systems ............................................... Safety Green
(2) In addition to the foregoing, all underground facilities
installed after January 1, 1996, shall be permanently marked with tracing
wires of appropriate durability or in other manner which will enable the
operator to trace the specific course of the underground facility.
(b) Unless otherwise agreed by all affected operators, persons engaged
in excavation or demolition shall mark the proposed area of work with stakes,
flags, posts, or painted or chalked lines that are white in color and are
clearly visible.
(c) Any person who moves, alters, conceals or defaces any markings required
under this act before the demolition or excavation work is commenced shall
be subject to the penalties contained in §14-271-104.
14-271-112. Notice of
intent to excavate or demolish -- Back To Top
(a) Except as provided in §14-271-109, no person may engage in excavation
or demolition activities without having first notified the One Call Center
in accordance with the provisions listed in this section.
(b)(1) Each person responsible for any excavation or demolition operation
shall serve written or telephonic notice of intent to excavate or demolish
at least two (2), but not more than ten (10), full working days before
commencing this activity.
(2) The notice of intent shall be delivered to the One Call
Center.
(3)(A) The notice given by this section shall be effective
for a period of twenty (20) working days from the date that the notice was
given.
(B) If the work to be performed
is not completed within this period, or if the locations markings have been
removed or are no longer visible, the person engaging in the demolition or
excavation activity shall re-initiate the notice procedure set forth in this
section.
(c) The written or telephonic notice of intent required by subsection (b)
of this section shall contain the name of the person notifying the operator
or the One Call Center, the name, address, and telephone number of the
person responsible for the excavation or demolition to be conducted, the
starting date, anticipated duration and type of excavation or demolition
operation to be conducted, the specific location of the proposed excavation
or demolition, and whether or not explosives are anticipated to be used.
(d) The One Call Center shall, as soon as practicable after receiving such
notice, provide persons giving notice of an intention to engage in an excavation
activity the names of any member operators of underground pipeline facilities
to whom the notice will be transmitted.
(e)(1) An adequate record of the notifications to the One Call Center shall
be maintained by the One Call Center.
(2) A copy of the record shall be furnished to the persons
giving notice of intent to excavate or demolish if requested.
(3) The records shall be maintained by the One Call center
for at least three (3) years.
(f) Nothing in this section shall be construed to obligate the One Call
Center to transmit a notice of intent to excavate for any operator that
is not a member of the One Call Center.
14-271-113. Notice of
damage required --- Exception -- Back To Top
(a) Except as provided by subsection (b) of this section, each person responsible
for any excavation or demolition operation that results in any damage to
an underground facility shall notify, immediately upon discovery of the
damage, the operator of the facility of the location and nature of the
damage and shall allow the operator reasonable time to accomplish necessary
repairs before completing the excavation or demolition in the immediate
area of the facility.
(b) Each person responsible for any excavation or demolition operation
that results in damage to an underground facility permitting the escape
of any flammable, toxic, or corrosive gas or liquid shall notify the operator,
police, and fire departments immediately upon discovery of the damage,
and take any other action reasonably necessary to protect persons and property
and to minimize the hazards until arrival of the operator's personnel or
police and fire departments.
14-271-114. Operators
of underground pipeline facilities -- Back To Top
In addition to the provision of this chapter, all operators of underground
pipeline facilities are required to comply with all applicable federal
statutes and regulations pertaining to pipeline safety and damage prevention.
14-271-115. No responsibility
for non-member facilities -- Back To Top
Neither the One Call Center, any entity operating the One Call Center,
nor any member of the One Call Center shall be responsible for locating
non-member underground utility facilities, or for advising or otherwise
warning of the possibility of the existence of underground utility facilities
other than those owned or operated by members of the One Call Center.
NOTE: Chapter 271 results from the passage of Act 600 of 1987, Act 370 or 1989, Act 762 of 1991, and Act 727 of 1995.