State Law

14-271-101. Title.
14-271-102. Definitions.
14-271-103. Applicability.
14-271-104. Penalties --- Civil Remedies.
14-271-105. Ordinance or Resolution adopting provisions.
14-271-106. Permittees to comply.
14-271-107. Membership in One-Call Center.
14-271-108. Notice to One Call Center --- Changes --- Files.
14-271-109. Notice to One-Call Center --- Exceptions
14-271-110. Notifying operators of underground facilities --- Identification of location.
14-271-111. Color code for marking facility locations.
14-271-112. Notice of intent to excavate or demolish.
14-271-113. Notice of damage required --- Exception.
14-271-114. Operators of underground pipeline facilities.
14-271-115. No responsibility for non-member facilities.

14-271-101. Title
This chapter may be cited as the "Arkansas Underground Facilities Damage Prevention Act."

14-271-102. Definitions
As used in this chapter, unless the context otherwise requires:
(1) "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;
(2) "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;
(3) "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;
(4) "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;
(5) "Member operator" means any operator that is a member of the Arkansas One Call Center.
(6) "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.
(7) "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; 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;
(8) "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;
(9) "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;
(10) "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;
(11) "Right-of-way" means any area along which an underground facility is located;
(12) "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;
(13) "Working day" means every day, except Saturday, Sunday, and national and legal state holidays.
(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.

14-271-103. Applicability
(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 §14-271-101 et seq., 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
(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
(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 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
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
(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
(a) 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. 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
(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
(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) 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. 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) When excavating within the approximate location of an underground facility, the excavator shall uncover the facility using a method approved by the operator. 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.
(c) For purposes of this section, the approximate location of underground facilities is defined as 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.

14-271-111. Color code for marking facility and excavation or demolition locations
(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
(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) 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. The notice of intent shall be delivered to the One Call Center. 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. 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) An adequate record of the notifications to the One Call Center shall be maintained by the One Call Center. A copy of the record shall be furnished to the persons giving notice of intent to excavate or demolish if requested. 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
(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
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
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.