Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas 1
94th General Assembly A Bill 2
Regular Session, 2023 SENATE BILL 297 3
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By: Senator J. Dismang 5
By: Representative Eaves 6
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For An Act To Be Entitled 8
AN ACT TO AMEND THE ARKANSAS UNDERGROUND FACILITIES 9
DAMAGE PREVENTION AC T; TO DECLARE AN EME RGENCY; AND 10
FOR OTHER PURPOSES. 11
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Subtitle 14
TO AMEND THE ARKANSAS UNDERGROUND 15
FACILITIES DAMAGE PREVENTION ACT; AND TO 16
DECLARE AN EMERGENCY. 17
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20
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SECTION 1. Arkansas Code § 14 -271-102 is amended to read as follows: 22
14-271-102. Definitions. 23
As used in this chapter , unless the context otherwise requires : 24
(1) “Approximate locatio n of underground facilities” means a 25
strip of land at least three feet (3 ′) wide but not wider than the width of 26
the facility plus one and one -half feet (1½′) on either side of the facility; 27
(2) "Contract locator" means a person contracted by an operato r 28
specifically to determine the approximate location of underground facilities 29
that may exist within the area specified by a notification issued by the One 30
Call Center; 31
(3) “Damage” includes the substantial weakening of structural or 32
lateral support of underground facilities, the penetration or destruction of 33
any protective coating, housing, or other protective device of underground 34
facilities, the partial or complete severance of an underground facility, and 35
the rendering of any underground facility ina ccessible; 36 SB297
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(3)(4) “Demolish” or “demolition” means any operation by which a 1
structure or mass of material is wrecked, razed, rendered, moved, or removed 2
by means of any powered tools, powered equipment, exclusive of transportation 3
equipment, or discharg e explosives; 4
(4)(5) “Excavate” or “excavation” means to dig, compress, or 5
remove earth, rock, or other materials in or on the ground by use of 6
mechanized equipment, tools manipulated only by human or animal power, or 7
blasting, including without limitat ion augering, boring, backfilling, 8
drilling, grading, pile -driving, plowing in, pulling in, trenching, 9
tunneling, and plowing; 10
(5)(6) "Excavator" means a person that engages in demolition or 11
excavation; 12
(7) "Extraordinary circumstances" means: 13
(A) Floods, snow, ice storms, tornadoes, earthquakes, or 14
other natural disasters; or 15
(B) Cybersecurity events involving the One Call Center's 16
system or the operator's system; 17
(8) "Infrastructure project" means a telecommunications, fiber 18
network, gas, water, sewer, or power and electric buildout that focuses on 19
the development and placement of extensive underground facilities to support 20
services provided by the facilities; 21
(9)(A) “Mechanized equipment” means equipment operated by means 22
of mechanical power, including trenchers, bulldozers, power shovels, augers, 23
backhoes, scrapers, drills, cable and pipe plows, and other equipment used 24
for plowing in or pulling in cable or pipe . 25
(B) "Mechanized equipment" does not include specialized 26
equipment that is specifically designed to excavate without damaging 27
underground facilities, including without limitation equipment that excavates 28
using pressurized water or air coupled with a vacuum system ; 29
(6)(10) “Member operator” means any operator that is a mem ber of 30
the One Call Center; 31
(7)(11) “One Call Center” means a center operated by an 32
organization which has as one of its purposes to receive notification of 33
planned excavation and demolition in a specified area from excavators and to 34
disseminate such notification of planned excavation or d emolition to 35
operators who are members of the center One Call Center; 36 SB297
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(8)(12) “Operator” means any person that owns or operates an 1
underground facility; 2
(9)(13) “Person” means any individual, any corporation, 3
partnership, association, improvement dis trict, property owners' association, 4
property developer, public agency, or any other entity organized under the 5
laws of any state or any subdivision or instrumentality of a state, and any 6
employee, agent, or legal representative thereof; 7
(10)(14) “Preengineered project” means a public project wherein 8
the public agency responsible for the project, as part of its engineering and 9
contract procedures, holds a formal meeting prior to before the commencement 10
of any construction work on the project in which all persons determined by 11
the public agency to have underground facilities located within the 12
construction area of the project are invited to attend and given an 13
opportunity to verify or inform the public agency of the location of their 14
underground facilities , if any, within the construction area and wherein the 15
location of all known underground facilities are located or noted on the 16
engineering drawing and specifications for the project; 17
(11)(15) “Public agency” means the state or any board, 18
commission, or agency of the state and any city, town, county, subdivision 19
thereof, or other governmental entity; 20
(12)(16) “Right-of-way” means any area along which an 21
underground facility is located; 22
(13)(A)(17)(A) “Underground facility” means any line, system, 23
and appurtenance or facility that is: 24
(i) Located beneath the ground surface or beneath 25
structures, streets, roads, alleys, sidewalks, or other public rights -of-way; 26
and 27
(ii) Used for producing, storing, conveying, 28
transmitting, or distributing communications, data, electricity, gas, heat, 29
water, steam, chemicals, television or radio transmissions or signals, or 30
sewage. 31
(B) “Underground facility” does not include: 32
(i) Privately owned service lines: 33
(a) Used solely for the purpose of 34
transporting communications, data, electricity, gas, heat, water, steam, 35
chemicals, television or radio transmissions or signals, or sewage for the 36 SB297
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operation of a residence or business; and 1
(b) Wholly located on or beneath private 2
property; or 3
(ii) Residential or agricultural underground 4
irrigation systems; 5
(14)(18)(A) “Underground pipeline facilities” means any 6
underground pipeline facility used to transport natural gas or hazardou s 7
liquids. 8
(B) However, this definition "Underground pipeline 9
facilities" does not apply to persons, including operator's master meters, 10
whose primary activity does not include the production, transportation, or 11
marketing of gas or hazardous liquids or to master-metered systems whose 12
underground facilities do not cross property other than their own or are not 13
located under public rights -of-way; and 14
(15)(19) “Working day” means every day, except Saturday, Sunday, 15
and national and legal state holidays. 16
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SECTION 2. Arkansas Code § 14 -271-104 is amended to read as follows: 18
14-271-104. Penalties — Civil remedies. 19
(a)(1) A person who violates this chapter may be required to undergo 20
training in underground facilities damage prevention according to a training 21
program developed and administered by the One Call Center. 22
(2)(A) Except as provided in subdivision (a)(2)(a)(3) of this 23
section, any person who damages an underground facility and violates any 24
provisions of this chapter shall be subject to a c ivil penalty not to exceed 25
two thousand five hundred dollars ($2,500) for each violation or mandatory 26
training in underground facilities damage prevention, as follows: 27
(i)(a) For a first violation in a twelve -month 28
period, the person shall be ordered to undergo the training under subdivision 29
(a)(1) of this section. 30
(b) For subsequent violations of this 31
subchapter, within a twelve -month period, the maximum penalty amount under 32
the penalty structure of this subsection (a) shall not exceed fifty tho usand 33
dollars ($50,000); 34
(ii) For a second violation in a twelve -month 35
period, the person shall be ordered to pay a civil penalty in an amount up to 36 SB297
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five thousand dollars ($5,000) for each violation; and 1
(iii) For three (3) or more violations in a twelve-2
month period, the person shall be ordered to pay a civil penalty in an amount 3
up to ten thousand dollars ($10,000) for each violation . 4
(B) Any person who has violated this chapter and had been 5
ordered to undergo mandatory training in undergrou nd facilities damage 6
prevention under subdivision (a)(1) of this section shall be subject to a 7
civil penalty of up to two thousand five hundred dollars ($2,500) for each 8
violation if the person fails to complete any of the training required within 9
one hundred twenty (120) days from the entry of the order or settlement. 10
(2)(3) Operators of underground pipeline facilities and 11
excavators shall, upon violation of any applicable requirements of 49 C.F.R. 12
Part 198, Subpart C, or 49 U.S.C. § 60114(b), concernin g marking facilities; 13
49 U.S.C. § 60114(d), concerning applicability to excavators; or 49 U.S.C. § 14
60118(a), concerning general waivers, as in effect on February 2013, unless 15
excepted under § 14-271-109, and damage to an interstate or intrastate 16
natural gas pipeline facility or an interstate or intrastate hazardous liquid 17
pipeline facility, shall be subject to civil penalties in an amount not to 18
exceed two (2) times the amount of property damage to the interstate or 19
intrastate natural gas pipeline facility or an interstate or intrastate 20
hazardous liquid pipeline facility up to a maximum of two hundred thousand 21
dollars ($200,000) for each violation for each day that the violation 22
persists, except that the maximum civil penalty shall not exceed two million 23
dollars ($2,000,000) for any related series of violations. 24
(b)(1)(A) Actions to enforce or recover the penalties provided for in 25
this section shall be brought by the Attorney General, the county prosecutor, 26
or the city attorney, at the request of any person , based upon information 27
received from an operator, excavator, or from any other source, in the 28
circuit court in the county in which the cause , or some part thereof, arose 29
occurred or in which the defendant has its principal place of business or 30
resides. 31
(B)(i) The Attorney General, the county prosecutor, or the 32
city attorney may settle with a person who violates this chapter for no more 33
than the maximum civil penalty the violator would be liable for under the 34
penalty structure under subsection (a) of t his section. 35
(ii) A settlement under subdivision (b)(1)(B)(i) of 36 SB297
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this section shall include a requirement that the violator complete mandatory 1
training in underground facilities damage prevention. 2
(2) All penalties recovered in any such an action shall be paid 3
into the general fund of the state, county, or municipality that prosecutes 4
the action. 5
(c) The Attorney General, the county prosecutor, or the city attorney 6
shall, at the request of any person, shall bring an action in a court of 7
competent jurisdiction to enjoin any a violation of 49 C.F.R. Part 198, 8
Subpart C, as it existed on January 1, 2023, committed by operators of 9
underground pipeline facilities and excavators. 10
(d) Nothing in this chapter shall be construed to This chapter does 11
not modify or repeal existing laws pertaining to the tort liability of local 12
governments and their employees. 13
(e) This chapter does not affect any civil remedies for personal 14
injury or property damage, including underground facilities, except as 15
otherwise specifically provided for in this chapter. 16
(f) This section shall does not apply to: 17
(1) The State Highway Commission; 18
(2) The Arkansas Department of Transportation; 19
(3) An officer or employee of the commission or the Arkansas 20
Department of Transportation; 21
(4) A county judge; or 22
(5) A county road department. 23
(g)(1) The Attorney General shall produce a quarterly report and 24
provide the report to the Legislative Council, the One Call Center, and the 25
Office of Pipeline Safety of the A rkansas Public Service Commission. 26
(2) The report required under subdivision (g)(1) of this section 27
shall include: 28
(A) The number of complaints submitted; 29
(B) The number of the submitted complaints that were 30
settled or prosecuted; and 31
(C) The amount of fines collected under this section 32
during the previous quarter. 33
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SECTION 3. Arkansas Code § 14 -271-109(a), concerning the notice 35
requirements to the One Call Center under the Arkansas Underground Facilities 36 SB297
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Damage Prevention Act, is amended t o read as follows: 1
(a) Compliance with notice requirements of § 14 -271-112 is not 2
required for: 3
(1) The moving of earth that is not on a right -of-way or within 4
an easement of an operator using specialized equipment that is specifically 5
designed to excavate without damaging underground facilities, including 6
without limitation equipment that excavates using pressurized water or air 7
coupled with a vacuum system or by tools manipulated only by human or animal 8
power; 9
(2) The moving of earth by an operato r that is on a right -of-way 10
or within an easement of the operator using specialized equipment that is 11
specifically designed to excavate without damaging underground facilities, 12
including without limitation equipment that excavates using pressurized water 13
or air coupled with a vacuum system or by tools only manipulated by human 14
power and exclusively for the purposes of system maintenance and leak 15
detection; 16
(3) Any agricultural purposes, including any form of cultivation 17
for agricultural purposes, digging for postholes on private property, 18
construction and maintenance of farm ponds, land clearing, or other normal 19
agricultural purposes that are not on a right -of-way of an operator; 20
(4) The opening of a grave in a cemetery that is not on a right -21
of-way of an operator; or 22
(5) Routine road work and general maintenance as performed in 23
the right-of-way by state or county maintenance departments, but excluding 24
any work or maintenance involving any demolition or excavation. 25
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SECTION 4. Arkansas Code § 14 -271-110 is amended to read as follows: 27
14-271-110. Notifying operators of underground facilities — 28
Identification of location. 29
(a)(1) Within four (4) working hours after receiving notification of 30
intent to from an excavator that intends to excavate or demolish within an 31
area marked in white , the One Call Center shall in turn notify all member 32
operators of underground facilities in the affected area of the proposed 33
activity. 34
(2)(A)(i) Unless otherwise agreed to in writing between the 35
excavators excavator and the operator or contract locator, within two (2) 36 SB297
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working days after notification from the One Call Center, starting the 1
working day after the notification of intent to excavate is received, the 2
operator or contract locator shall identify the approximate location of the 3
facilities by field-marking on the surface by paint, dye, stakes, or any 4
other clearly visible marking which designates the horizontal course of the 5
facilities. 6
(ii) For the purpose of measuring working days, the 7
working day starts at 7:00 a.m. on each business day. 8
(B) If the operator has no facilities in the area, the 9
operator shall so inform the person proposing the activity, either by 10
contacting that person or by leaving such information at the site. 11
(3) When an underground facility is being located, the operator 12
shall furnish the excavator information which that identifies the approximate 13
center line, approximate or estimated depth, when known, and dimensions of 14
the underground facility. 15
(4)(A) The operator shall provide an electronic positive 16
response to the One Call Center before the expiration of the time provided in 17
subdivision (a)(2)(A) of this section. 18
(B) The response required under subdivision (a)(4)(A) of 19
this section shall indicate wheth er or not and to what extent the operator is 20
able to provide the information required by subdivision (a)(2)(A) of this 21
section to respond to the notice from the excavator. 22
(5)(A) When excavating within the approximate location of an 23
underground facility , the excavator shall uncover the facility using a method 24
approved by the operator. 25
(B) No power-driven tools or Mechanized equipment shall 26
not be used without the express approval of the operator. 27
(C) The excavator shall confirm through the One Ca ll 28
Center's electronic positive response system before excavation or demolition 29
that all operators have responded and that all facilities that may be 30
affected by the proposed excavation or demolition have been marked. 31
(D) The excavator may begin excava tion or demolition 32
before the specified waiting period only if the excavator has confirmed that 33
all operators have responded with an appropriate electronic positive 34
response. 35
(E) If the operator declares extraordinary circumstances, 36 SB297
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the excavator shall not carry out excavation or demolishion until after the 1
time and date that the operator has provided in the operator's response. 2
(6)(A) If extraordinary circumstances prevent the operator from 3
marking the location of the facilities within the time spec ified in this 4
subsection, then the operator shall notify the excavator directly or through 5
the One Call Center. 6
(B) If providing the notification under subdivision 7
(a)(6)(A) of this section, the operator shall state the date and time when 8
the location will be marked. 9
(b) Subject to the provisions of § 14-271-112(b) governing the 10
duration of a locate request, when infrastructure projects are delayed or are 11
lengthy in time and location, the operator and the excavator shall establish 12
and maintain coordin ation regarding location, marking, and identification of 13
the facilities until all excavation or demolition is completed. 14
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SECTION 5. Arkansas Code § 14 -271-112(c), concerning the notice to be 16
provided to the One Call Center, is amended to read as follows : 17
(c)(1) The written or telephonic notice of intent required by 18
subsection (b) of this section shall : 19
(A) contain Contain the name of the person notifying the 20
One Call Center, the name, address, and telephone number of the person 21
responsible for the excavation or demolition, the starting date, anticipated 22
duration and type of excavation or demolition operation to be conducte d, the 23
specific location of the proposed excavation or demolition, and whether or 24
not explosives are anticipated to be used ; and 25
(B)(i) Be provided by an individual or entity carrying out 26
the excavation or demolition . 27
(ii) The responsibility to pr ovide the notice under 28
subsection (b) of this section shall not be delegated to another by contract 29
or otherwise. 30
(iii) If multiple entities are carrying out 31
excavation or demolition, then each entity is responsible for providing 32
notice individually. 33
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SECTION 6. EMERGENCY CLAUSE. It is found and determined by the 35
General Assembly of the State of Arkansas that it is in the best interest of 36 SB297
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the citizens of this state to protect underground facilities in Arkansas from 1
damage and to enhance safety; that the enhanced notifications and penalties 2
in this act will make Arkansas citizens safer; and that this act is 3
immediately necessary because this act will increase public health and safety 4
in Arkansas by helping to prevent underground facilities from being hit and 5
damaged at such a high rate. Therefore, an emergency is declared to exist, 6
and this act being immediately necessary for the preservation of the public 7
peace, health, and safety shall become effective on: 8
(1) The date of its approval by the Gove rnor; 9
(2) If the bill is neither approved nor vetoed by the Governor, 10
the expiration of the period of time during which the Governor may veto the 11
bill; or 12
(3) If the bill is vetoed by the Governor and the veto is 13
overridden, the date the last house overrides the veto. 14
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