Arkansas 2023 Regular Session

Arkansas Senate Bill SB297 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		Stricken language would be deleted from and underlined language would be added to present law.
2		-	Act 309 of the Regular Session
3	2		ANS231 03-06-2023 13:43:57 ANS231
4	3
5	4		State of Arkansas As Engrossed: S3/6/23 1
6	5		94th General Assembly A Bill 2
7	6		Regular Session, 2023 SENATE BILL 297 3
8	7		4
9	8		By: Senator J. Dismang 5
10	9		By: Representative Eaves 6
11	10		7
12	11		For An Act To Be Entitled 8
13	12		AN ACT TO AMEND THE ARKANSAS UNDERGROUND FACILITIES 9
14	13		DAMAGE PREVENTION AC T; TO DECLARE AN EME RGENCY; AND 10
15	14		FOR OTHER PURPOSES. 11
16	15		12
17	16		13
18	17		Subtitle 14
19	18		TO AMEND THE ARKANSAS UNDERGROUND 15
20	19		FACILITIES DAMAGE PREVENTION ACT; AND TO 16
21	20		DECLARE AN EMERGENCY. 17
22	21		18
23	22		19
24	23		BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20
25	24		21
26	25		SECTION 1. Arkansas Code § 14 -271-102 is amended to read as follows: 22
27	26		14-271-102. Definitions. 23
28	27		As used in this chapter , unless the context otherwise requires : 24
29	28		(1) “Approximate location of underground facilities” means a 25
30	29		strip of land at least three feet (3 ′) wide but not wider than the width of 26
31	30		the facility plus one and one -half feet (1½′) on either side of the facility; 27
32	31		(2) "Contract locator" means a per son contracted by an operator 28
33	32		specifically to determine the approximate location of underground facilities 29
34	33		that may exist within the area specified by a notification issued by the One 30
35	34		Call Center; 31
36	35		(3) “Damage” includes the substantial weakening of struc tural or 32
37	36		lateral support of underground facilities, the penetration or destruction of 33
38	37		any protective coating, housing, or other protective device of underground 34
39	38		facilities, the partial or complete severance of an underground facility, and 35
40	39		the rendering of any underground facility inaccessible; 36 As Engrossed: S3/6/23 SB297
41	40
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44	43
45	44		(3)(4) “Demolish” or “demolition” means any operation by which a 1
46	45		structure or mass of material is wrecked, razed, rendered, moved, or removed 2
47	46		by means of any powered tools, powered equipment, exclusive of transport ation 3
48	47		equipment, or discharge explosives; 4
49	48		(4)(5) “Excavate” or “excavation” means to dig, compress, or 5
50	49		remove earth, rock, or other materials in or on the ground by use of 6
51	50		mechanized equipment, tools manipulated only by human or animal power, or 7
52	51		blasting, including without limitation augering, boring, backfilling, 8
53	52		drilling, grading, pile -driving, plowing in, pulling in, trenching, 9
54	53		tunneling, dredging, and plowing; 10
55	54		(5)(6) "Excavator" means a person that engages in demolition or 11
56	55		excavation; 12
57	56		(7) "Extraordinary circumstances" means: 13
58	57		(A) Floods, snow, ice storms, tornadoes, earthquakes, or 14
59	58		other natural disasters; or 15
60	59		(B) Cybersecurity events involving the One Call Center's 16
61	60		system or the operator's system; 17
62	61		(8) "Infrastructure project" means a telecommunications, fiber 18
63	62		network, gas, water, sewer, or power and electric buildout that focuses on 19
64	63		the development and placement of extensive underground facilities to support 20
65	64		services provided by the facilities; 21
66	65		(9)(A) “Mechanized equipment” means eq uipment operated by means 22
67	66		of mechanical power, including trenchers, bulldozers, power shovels, augers, 23
68	67		backhoes, scrapers, drills, cable and pipe plows, and other equipment used 24
69	68		for plowing in or pulling in cable or pipe . 25
70	69		(B) "Mechanized equipment" doe s not include specialized 26
71	70		equipment that is specifically designed to excavate without damaging 27
72	71		underground facilities, including without limitation equipment that excavates 28
73	72		using pressurized water or air coupled with a vacuum system ; 29
74	73		(6)(10) “Member operator” means any operator that is a member of 30
75	74		the One Call Center; 31
76	75		(7)(11) “One Call Center” means a center operated by an 32
77	76		organization which has as one of its purposes to receive notification of 33
78	77		planned excavation and demolition in a specified area fro m excavators and to 34
79	78		disseminate such notification of planned excavation or demolition to 35
80	79		operators who are members of the center One Call Center; 36 As Engrossed: S3/6/23 SB297
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84	83
85	84		(8)(12) “Operator” means any person that owns or operates an 1
86	85		underground facility; 2
87	86		(9)(13) “Person” means any individual, any corporation, 3
88	87		partnership, association, improvement district, property owners' association, 4
89	88		property developer, public agency, or any other entity organized under the 5
90	89		laws of any state or any subdivision or instrumentality of a state, and any 6
91	90		employee, agent, or legal representative thereof; 7
92	91		(10)(14) “Preengineered project” means a public project wherein 8
93	92		the public agency responsible for the project, as part of its engineering and 9
94	93		contract procedures, holds a formal meeting prior to before the commencement 10
95	94		of any construction work on the project in which all persons determined by 11
96	95		the public agency to have underground facilities located within the 12
97	96		construction area of the project are invited to attend and given an 13
98	97		opportunity to verify or inform the public agency of the location of their 14
99	98		underground facilities, if any, within the construction area and wherein the 15
100	99		location of all known underground facilities are located or noted on the 16
101	100		engineering drawing and specifications for the proje ct; 17
102	101		(11)(15) “Public agency” means the state or any board, 18
103	102		commission, or agency of the state and any city, town, county, subdivision 19
104	103		thereof, or other governmental entity; 20
105	104		(12)(16) “Right-of-way” means any area along which an 21
106	105		underground facility is located; 22
107	106		(13)(A)(17)(A) “Underground facility” means any line, system, 23
108	107		and appurtenance or facility that is: 24
109	108		(i) Located beneath the ground surface or beneath 25
110	109		structures, streets, roads, alleys, sidewalks, or other public rights -of-way; 26
111	110		and 27
112	111		(ii) Used for producing, storing, conveying, 28
113	112		transmitting, or distributing communications, data, electricity, gas, heat, 29
114	113		water, steam, chemicals, television or radio transmissions or sign als, or 30
115	114		sewage. 31
116	115		(B) “Underground facility” does not include: 32
117	116		(i) Privately owned service lines: 33
118	117		(a) Used solely for the purpose of 34
119	118		transporting communications, data, electricity, gas, heat, water, steam, 35
120	119		chemicals, television or radio transm issions or signals, or sewage for the 36 As Engrossed: S3/6/23 SB297
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124	123
125	124		operation of a residence or business; and 1
126	125		(b) Wholly located on or beneath private 2
127	126		property; or 3
128	127		(ii) Residential or agricultural underground 4
129	128		irrigation systems; 5
130	129		(14)(18)(A) “Underground pipeline facilitie s” means any 6
131	130		underground pipeline facility used to transport natural gas or hazardous 7
132	131		liquids. 8
133	132		(B) However, this definition "Underground pipeline 9
134	133		facilities" does not apply to persons, including operator's master meters, 10
135	134		whose primary activity does not include the production, transportation, or 11
136	135		marketing of gas or hazardous liquids or to master -metered systems whose 12
137	136		underground facilities do not cross property other than their own or are not 13
138	137		located under public rights -of-way; and 14
139	138		(15)(19) “Working day” means every day, except Saturday, Sunday, 15
140	139		and national and legal state holidays. 16
141	140		17
142	141		SECTION 2. Arkansas Code § 14 -271-104 is amended to read as follows: 18
143	142		14-271-104. Penalties — Civil remedies. 19
144	143		(a)(1) A person who violates this chapter may be required to undergo 20
145	144		training in underground facilities damage prevention according to a training 21
146	145		program developed and administered by the One Call Center. 22
147	146		(2)(A) Except as provided in subdivision (a)(2)(a)(3) of this 23
148	147		section, any person who damages an underground facility and violates any 24
149	148		provisions of this chapter shall be subject to a civil penalty not to exceed 25
150	149		two thousand five hundred dollars ($2,500) for each violation or mandatory 26
151	150		training in underground facilities damage prevention, as follows: 27
152	151		(i)(a) For a first violation in a twelve -month 28
153	152		period, the person shall be ordered to undergo the training under subdivision 29
154	153		(a)(1) of this section. 30
155	154		(b) For subsequent violations of this 31
156	155		subchapter, within a twelve -month period, the maximum penalty amount under 32
157	156		the penalty structure of this subsection (a) shall not exceed fifty thousand 33
158	157		dollars ($50,000); 34
159	158		(ii) For a second violation in a twelve -month 35
160	159		period, the person shall be ordered to pay a civil penalty in an amount up to 36 As Engrossed: S3/6/23 SB297
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164	163
165	164		five thousand dollars ($5,000) for each violation; and 1
166	165		(iii) For three (3) or more violations in a twelve -2
167	166		month period, the person shall be ordered to pay a civil penalty in an amount 3
168	167		up to ten thousand dollars ($10,000) for each violation . 4
169	168		(B) Any person who has violated this chapter and had been 5
170	169		ordered to undergo mandatory training in underground facilities damage 6
171	170		prevention under subdivision (a)(1) of this section shall be subject to a 7
172	171		civil penalty of up to two thousand five hundred dollars ($2,500) for each 8
173	172		violation if the person fails to complete any of the training required within 9
174	173		one hundred twenty (120) days from the entry of the order or settlement. 10
175	174		(2)(3) Operators of underground pipeline facilities and 11
176	175		excavators shall, upon violation of any applicable requirements of 49 C.F.R. 12
177	176		Part 198, Subpart C, or 49 U.S.C. § 60114(b), concerning marking facilities; 13
178	177		49 U.S.C. § 60114(d), concerning applicability to excavat ors; or 49 U.S.C. § 14
179	178		60118(a), concerning general waivers, as in effect on February 2013 January 15
180	179		2023, unless excepted under § 14 -271-109, and damage to an interstate or 16
181	180		intrastate natural gas pipeline facility or an interstate or intrastate 17
182	181		hazardous liquid pipeline facility, shall be subject to civil penalties in an 18
183	182		amount not to exceed two (2) times the amount of property damage to the 19
184	183		interstate or intrastate natural gas pipeline facility or an interstate or 20
185	184		intrastate hazardous liquid pipeline facility up to a maximum of two hundred 21
186	185		thousand dollars ($200,000) two hundred fifty-seven thousand six hundr ed 22
187	186		sixty-four dollars ($257,664) for each violation for each day that the 23
188	187		violation persists, except that the maximum civil penalty shall not exceed 24
189	188		two million dollars ($2,000,000) two million two hundred fifty -seven thousand 25
190	189		six hundred sixty-four dollars ($2,257,664) for any related series of 26
191	190		violations. 27
192	191		(b)(1)(A) Actions to enforce or recover the penalties provided for in 28
193	192		this section shall be brought by the Attorney General, the county prosecutor, 29
194	193		or the city attorney, at the request of any person, based upon information 30
195	194		received from an operator, excavator, or from any other source, in the 31
196	195		circuit court in the county in which the cause , or some part thereof, arose 32
197	196		occurred or in which the defendant has its principal place of business or 33
198	197		resides. 34
199	198		(B)(i) The Attorney General, the county prosecutor, or the 35
200	199		city attorney may settle with a person who violates this chapter for no more 36 As Engrossed: S3/6/23 SB297
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204	203
205	204		than the maximum civil penalty the violator would be liable for under the 1
206	205		penalty structure under subsection (a) of thi s section. 2
207	206		(ii) A settlement under subdivision (b)(1)(B)(i) of 3
208	207		this section shall include a requirement that the violator complete mandatory 4
209	208		training in underground facilities damage prevention. 5
210	209		(2) All penalties recovered in any such an action shall be paid 6
211	210		into the general fund of the state, county, or municipality that prosecutes 7
212	211		the action. 8
213	212		(c) The Attorney General, the county prosecutor, or the city attorney 9
214	213		shall, at the request of any person, shall bring an action in a court of 10
215	214		competent jurisdiction to enjoin any a violation of 49 C.F.R. Part 198, 11
216	215		Subpart C, as it existed on January 1, 2023, committed by operators of 12
217	216		underground pipeline facilities and excavators. 13
218	217		(d) Nothing in this chapter shall be construed to This chapter does 14
219	218		not modify or repeal existing laws pertaining to the tort liability of local 15
220	219		governments and their employees. 16
221	220		(e) This chapter does not affect any civil remedies for personal 17
222	221		injury or property damage, including underground facilities, except as 18
223	222		otherwise specifically provided for in this chapter. 19
224	223		(f) This section shall does not apply to: 20
225	224		(1) The State Highway Commission; 21
226	225		(2) The Arkansas Department of Transportation; 22
227	226		(3) An officer or employee of the commission or the Arkansas 23
228	227		Department of Transportation; 24
229	228		(4) A county judge; or 25
230	229		(5) A county road department. 26
231	230		(g)(1) The Attorney General shall produce a quarterly report and 27
232	231		provide the report to the Legislative Council, the One Call Center, and the 28
233	232		Office of Pipeline Safety of the Arkansas Public Service Commission. 29
234	233		(2) The report required under subdivision (g)(1) of this section 30
235	234		shall include: 31
236	235		(A) The number of complaints submitted; 32
237	236		(B) The number of the submitted complaints that were 33
238	237		settled or prosecuted; and 34
239	238		(C) The amount of fines collected under this section 35
240	239		during the previous quarter. 36 As Engrossed: S3/6/23 SB297
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245	244		1
246	245		SECTION 3. Arkansas Code § 14 -271-109(a), concerning the notice 2
247	246		requirements to the One Call Center under the Arkansas Underground Facilities 3
248	247		Damage Prevention Act, is amended to read as follows: 4
249	248		(a) Compliance with notice requirements of § 14 -271-112 is not 5
250	249		required for: 6
251	250		(1) The moving of earth that is not on a right -of-way or within 7
252	251		an easement of an operator using specialized equipment that is specifi cally 8
253	252		designed to excavate without damaging underground facilities, including 9
254	253		without limitation equipment that excavates using pressurized water or air 10
255	254		coupled with a vacuum system or by tools manipulated only by human or animal 11
256	255		power; 12
257	256		(2) The moving of earth by an operator that is on a right -of-way 13
258	257		or within an easement of the operator using specialized equipment that is 14
259	258		specifically designed to excavate without damaging underground facilities, 15
260	259		including without limitation equipment that excavates usin g pressurized water 16
261	260		or air coupled with a vacuum system or by tools only manipulated by human 17
262	261		power and exclusively for the purposes of system maintenance and leak 18
263	262		detection; 19
264	263		(3) Any agricultural purposes, including any form of cultivation 20
265	264		for agricultural purposes, digging for postholes on private property, 21
266	265		construction and maintenance of farm ponds, land clearing, or other normal 22
267	266		agricultural purposes that are not on a right -of-way of an operator; 23
268	267		(4) The opening of a grave in a cemetery that is not on a right-24
269	268		of-way of an operator; or 25
270	269		(5) Routine road work and general maintenance as performed in 26
271	270		the right-of-way by state or county maintenance departments, but excluding 27
272	271		any work or maintenance involving any demolition or excavation. 28
273	272		29
274	273		SECTION 4. Arkansas Code § 14-271-110 is amended to read as follows: 30
275	274		14-271-110. Notifying operators of underground facilities — 31
276	275		Identification of location. 32
277	276		(a)(1) Within four (4) working hours after receiving notification of 33
278	277		intent to from an excavator that inte nds to excavate or demolish within an 34
279	278		area marked in white , the One Call Center shall in turn notify all member 35
280	279		operators of underground facilities in the affected area of the proposed 36 As Engrossed: S3/6/23 SB297
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284	283
285	284		activity. 1
286	285		(2)(A)(i) Unless otherwise agreed to in writing between the 2
287	286		excavators excavator and the operator or contract locator, within two (2) 3
288	287		working days after notification from the One Call Center, starting the 4
289	288		working day after the notification of intent to excavate is received, the 5
290	289		operator or contract locator shall identify the approximate location of the 6
291	290		facilities by field-marking on the surface by paint, dye, stakes, or any 7
292	291		other clearly visible marking which designates the horizontal course of the 8
293	292		facilities. 9
294	293		(ii) For the purpose of measuring w orking days, the 10
295	294		working day starts at 7:00 a.m. on each business day. 11
296	295		(B) If the operator has no facilities in the area, the 12
297	296		operator shall so inform the person proposing the activity, either by 13
298	297		contacting that person or by leaving such information at the site. 14
299	298		(3) When an underground facility is being located, the operator 15
300	299		shall furnish the excavator information which that identifies the approximate 16
301	300		center line, approximate or estimated depth, when known, and dimensions of 17
302	301		the underground facility. 18
303	302		(4)(A) The operator shall provide an electronic positive 19
304	303		response to the One Call Center before the expiration of the time provided in 20
305	304		subdivision (a)(2)(A) of this section. 21
306	305		(B) The response required under subdivision (a)(4)(A) of 22
307	306		this section shall indicate whether or not and to what extent the operator is 23
308	307		able to provide the information required by subdivision (a)(2)(A) of this 24
309	308		section to respond to the notice from the excavator. 25
310	309		(5)(A) When excavating within the approximate location of an 26
311	310		underground facility, the excavator shall uncover the facility using a method 27
312	311		approved by the operator. 28
313	312		(B) No power-driven tools or Mechanized equipment shall 29
314	313		not be used without the express approval of the operator. 30
315	314		(C) The excavator shall confirm th rough the One Call 31
316	315		Center's electronic positive response system before excavation or demolition 32
317	316		that all operators have responded and that all facilities that may be 33
318	317		affected by the proposed excavation or demolition have been marked. 34
319	318		(D) The excavator may begin excavation or demolition 35
320	319		before the specified waiting period only if the excavator has confirmed that 36 As Engrossed: S3/6/23 SB297
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324	323
325	324		all operators have responded with an appropriate electronic positive 1
326	325		response. 2
327	326		(E) If the operator declares extraordinary circumstances, 3
328	327		the excavator shall not carry out excavation or demolishion until after the 4
329	328		time and date that the operator has provided in the operator's response. 5
330	329		(6)(A) If extraordinary circumstances prevent the operator from 6
331	330		marking the location of the facilities with in the time specified in this 7
332	331		subsection, then the operator shall notify the excavator directly or through 8
333	332		the One Call Center. 9
334	333		(B) If providing the notification under subdivision 10
335	334		(a)(6)(A) of this section, the operator shall state the date and time wh en 11
336	335		the location will be marked. 12
337	336		(b) Subject to the provisions of § 14-271-112(b) governing the 13
338	337		duration of a locate request, when infrastructure projects are delayed or are 14
339	338		lengthy in time and location, the operator and the excavator shall establish 15
340	339		and maintain coordination regarding location, marking, and identification of 16
341	340		the facilities until all excavation or demolition is completed. 17
342	341		18
343	342		SECTION 5. Arkansas Code § 14 -271-112(c), concerning the notice to be 19
344	343		provided to the One Call Center, is amended to read as follows: 20
345	344		(c)(1) The written or telephonic notice of intent required by 21
346	345		subsection (b) of this section shall : 22
347	346		(A) contain Contain the name of the person notifying the 23
348	347		One Call Center, the name, address, and telephone number of the person 24
349	348		responsible for the excavation or demolition, the starting date, anticipated 25
350	349		duration and type of excavation or demolition operation to be conducted, the 26
351	350		specific location of the proposed excavation or demolition, and whether or 27
352	351		not explosives are anticipated to be used; and 28
353	352		(B)(i) Be provided by an individual or entity carrying out 29
354	353		the excavation or demolition . 30
355	354		(ii) The responsibility to provide the notice under 31
356	355		subsection (b) of this section shall not be delegated to another by contract 32
357	356		or otherwise. 33
358	357		(iii) If multiple entities are carrying out 34
359	358		excavation or demolition, then each entity is responsible for providing 35
360	359		notice individually. 36 As Engrossed: S3/6/23 SB297
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365	364		1
366	365		SECTION 6. EMERGENCY CLAUSE. It is found and determined by the 2
367	366		General Assembly of the State of Arkansas that it is in the best interest of 3
368	367		the citizens of this state to protect underground facilities in Arkansas from 4
369	368		damage and to enhance safety; that the enhanced notifications and penalties 5
370	369		in this act will make Arkansas citizens safer; and that this act is 6
371	370		immediately necessary because this act will increase public health and safety 7
372	371		in Arkansas by helping to prevent underground facilities from being hit and 8
373	372		damaged at such a high rate. Therefore, an emergency is declared to exist, 9
374	373		and this act being immediately necessary for the preservation of the public 10
375	374		peace, health, and safety shall become effective on: 11
376	375		(1) The date of its approval by the Governor; 12
377	376		(2) If the bill is neither approved nor vetoed by the Governor, 13
378	377		the expiration of the period of time du ring which the Governor may veto the 14
379	378		bill; or 15
380	379		(3) If the bill is vetoed by the Governor and the veto is 16
381	380		overridden, the date the last house overrides the veto. 17
382	381		18
383	382		/s/J. Dismang 19
384	383		20
385	384		21
386		-	~~APPROVED: 3/16/23~~ 22
	385	+	22
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