Underground Utility Damage Prevention

Kansas Underground Utility Damage Prevention Act: Excavator and Utility Operator Obligations

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This unofficial version of excavator and operator obligations provides a "user friendly" version of Kansas law as it pertains to the Kansas Underground Utility Damage Prevention Act. It is a combination of the requirements of Kansas statutes and regulations that pertain to the Act. Official copies of the statutes, (K.S.A. 66-1801 et seq.), and the regulations, (K.A.R. 82-14-1 through 82-14-5), can be accessed through www.kansas.gov. A copy also is available on the KCC damage prevention web page.

The italicized text are excerpts from the Kansas regulations.

The non-italicized text are excerpts from Kansas statutes.

At times, KCC Staff has modified the original text in order to better fit the context of this document.

Definitions.

"Backreaming" means the process of enlarging the diameter of a bore by pulling a specially designed tool through the bore from the bore exit point back to the bore entry point.

"Commission" means the state corporation commission of Kansas.

"Damage" means any impact or contact with an underground facility, its appurtenances or its protective coating, or any weakening of the support for the facility or protective housing which requires repair.

"Drill head" means the mechanical device connected to the drill pipe that is used to initiate the excavation in a directional boring operation. This term is sometimes referred to as the drill bit.

"Emergency" means any condition constituting a clear and present danger to life, health or property, or a customer service outage.

"Excavation" means any operation in which earth, rock or other material below the surface is moved or otherwise displaced by any means, except tilling the soil for normal agricultural purposes, or railroad or road and ditch maintenance that does not change the existing railroad grade, road grade and/or ditch flowline, or operations related to exploration and production of crude oil or natural gas, or both.

"Excavation scheduled start date" means the start date stated in the notice of intent of excavation filed by the excavator pursuant to K.S.A. 66-1804(d) and amendments thereto.

"Excavation site" means the area where excavation is to occur.

"Excavator" means any person who engages directly in excavation activities within the state of Kansas, but shall not include any occupant of a dwelling who:

Uses such dwelling as a primary residence; and
excavates on the premises of such dwelling.

"Facility" means any underground line, system or structure used for gathering, storing, conveying, transmitting or distributing gas, electricity, communication, crude oil, refined or processed petroleum, petroleum products or hazardous liquids; facility shall not include, any production petroleum lead lines, salt water disposal lines or injection lines, which are not located on platted land or inside the corporate limits of any city.

"Locatable facility" means facilities for which the tolerance zone can be determined by the operator using generally accepted practices such as as-built construction drawings, system maps, probes, locator devices or any other type of proven technology for locating.

"Locate ball" means an electronic marker device that is buried with the facility and is used to enhance signal reflection to a facility detection device.

"Marking" means the use of stakes, paint, flags or other clearly identifiable materials to show the field location of underground facilities, in accordance with the rules and regulations promulgated by the state corporation commission in the administration and enforcement of this act.

"Meet on site" means a meeting between an operator and an excavator that occurs at the excavation site in order for the excavator to provide an accurate description of the excavation site.

"Municipality" means any city, county, municipal corporation, public district or public authority located in whole or in part within this state which provides firefighting, law enforcement, ambulance, emergency medical or other emergency services.

"Notification center" means the statewide communication system operated by an organization which has as one of its purposes to receive and record notification of planned excavation in the state from excavators and to disseminate such notification of planned excavation to operators who are members and participants.

"Notice of intent of excavation" means the written notification required by K.S.A. 66-1804 and amendments thereto.

"Operator" means any person who owns or operates an underground facility, except for any person who is the owner of real property wherein is located underground facilities for the purpose of furnishing services or materials only to such person or occupants of such property.

"Preengineered project" means a public project or a project which is approved by a public agency wherein the public agency 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 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 where the location of all known and underground facilities are duly located or noted on the engineering drawing as specifications for the project.

"Permitted project" means a project where a permit for the work to be performed must be issued by a city, county, state or federal agency and, as a prerequisite to receiving such permit, the applicant must locate all underground facilities in the area of the work and in the vicinity of the excavation and notify each owner of such underground facilities.

"Person" means any individual, partnership, corporation, association, franchise holder, state, city, county or any governmental subdivision or instrumentality of a state and its employees, agents or legal representatives.

"Production petroleum lead line" means an underground facility used for production, gathering or processing on the lease or unit, or for delivery of hydrocarbon gas and/or liquids to an associated tank battery, separator or sales facility. Production petroleum lead lines shall include underground lines associated with lease fuel and saltwater disposal and injection.

"Platted land" means a tract or parcel of land which has been subdivided into lots of less than five acres for the purpose of building developments, including housing developments, and for which a surveyor's plat has been filed of record in the office of the register of deeds in the county where the land is located.

"Pullback operation" means the installation of facilities in a directional bore by pulling the facility from the bore exit point back to the bore entry point.

"Pullback device" means the apparatus used to connect drilling tools to the facility being installed in a directional bore.

"Tolerance zone" means the area within 24 inches of the outside dimensions in all horizontal directions of an underground facility.

"Reasonable care" means the precautions taken by an excavator to conduct an excavation in a careful and prudent manner. Reasonable care shall include the following:

Providing for proper support and backfill around all existing underground facilities;

using nonintrusive means, as necessary, to expose the existing facility in order to visually determine that there will be no conflict between the facility and the proposed excavation path when the path is within the tolerance zone of the existing facility;

exposing the existing facility at intervals as often as necessary to avoid damage when the proposed excavation path is parallel to and within the tolerance zone of an existing facility; and

maintaining the visibility of the markings that indicate the location of underground utilities throughout the excavation period.

"Trenchless excavation" means any excavation performed in a manner that does not allow the excavator to visually observe the placement of the new facility. This term shall include underground boring, tunneling, horizontal auguring, directional drilling, plowing, and geoprobing.

"Update" means an additional request from the excavator to extend the time period of the request for intent to excavate beyond the 15 calendar day duration of the request.

"Whitelining" means the act of marking by the excavator the route or boundary of the proposed excavation site with white paint, white stakes or white flags.

"Working day" means every day, Monday through Friday beginning at 12:01 a.m., except for the following officially recognized holidays: New Year's day, Memorial day, Independence day, Labor day, Thanksgiving day, the day after Thanksgiving and Christmas.

EXCAVATOR'S OBLIGATIONS

General

An excavator shall not engage in excavation near the location of any underground facility without first having ascertained, in the manner prescribed in this section, a location of all underground facilities in the proposed area of the excavation.

Unless all facilities notified by the notification center have provided a response to the excavator, excavation shall not begin at any excavation site before the excavation scheduled start date.

After the excavation scheduled start date, an excavator shall exercise such reasonable care as may be necessary for the protection of any underground facility in and near the construction area when working in close proximity to any such underground facility.

In the case of an emergency which involves danger to life, health or property or which requires immediate correction in order to continue the operation of an industrial plant or to assure the continuity of public utility service, excavation, maintenance or repairs may be made without using explosives, if notice and advice thereof, whether in writing or otherwise are given to the operator or notification center as soon as reasonably possible.

Notice of intent of excavation.

Notification or intent to excavate shall be given to operators by notifying the notification center by telephone at the toll free number or by other communication methods approved by the notification center.

Except in the case of an emergency, an excavator shall serve notice of intent of excavation at least two full working days, but not more than 15 calendar days before the scheduled excavation start date, on each operator having underground facilities located in the proposed area of excavation.

The notice of intent to excavate or any subsequent updates shall be valid for 15 calendar days after the excavation start date and such notice shall only describe an area in which the proposed excavation reasonably can be completed within the 15 calendar days.

No person shall make repeated requests for remarking unless the request is due to circumstances not reasonably within the control of such person.

Any person providing a misrepresentation of an emergency excavation may be subject to the penalties set out in K.S.A. 2001 Supp. 66-1812, and amendments thereto.

The notice of intent of excavation shall contain:

the name, address and telephone number of the person filing the notice of intent;
the name of the excavator;

the name and telephone number of the individual who will be representing the excavator at the excavation site;

the date the excavation activity is to commence; and
the type of excavation being planned.

Each description of the excavation site shall include the following:

The street address, if available, the specific location of the proposed excavation site at the street address; and

an accurate description of the proposed excavation site using any available designations, including the closest street, road, or intersection, and any additional information requested by the notification center.

If the excavation site is outside the boundaries of any city or if a street address is not available, the description of the excavation site shall include one of the following:

An accurate description of the excavation site using any available designations, including driving directions from the closest named street, road, or intersection;

the specific legal description, including the quarter section; or

the longitude and latitude coordinates.

On Site Meetings and Whiteline Requests

If a meet on site is requested by the excavator, the excavation scheduled start date shall be no earlier than the fifth working day after the date on which the notice of intent of excavation was given to the notification center, unless otherwise agreed between the parties.

If the excavator requests a meet on site as part of the description of the proposed excavation site given to the notification center, the excavator shall document the meet on site and any subsequent meetings regarding facility locations with a record noting the name and company affiliation for the representative of the excavator and the representative of the operator that attend the meeting. The excavator shall keep this record for at least three years. This documentation shall include the following:

Verification that the description of the excavation site is understood by both parties;

the agreed-upon excavation scheduled start date;

the date and time of the meet on site; and

the name and company affiliation of each attendee of the meet on site.

The person filing the notice of intent to excavate shall, at the request of the operator, whiteline the proposed excavation site when the description of the excavation location cannot be described with sufficient detail to enable the operator to ascertain the location of the proposed excavation.

If the operator requests that the excavator whiteline the excavation site, the operator shall have two working days after the whitelining is completed to provide the location of the tolerance zone.

Excavator Obligations and Liability when Damages Occur

If any contact with or damage to any underground facility or the facility's associated tracer wire or locate ball occurs, the excavator shall immediately inform the operator.

If the protective covering of an electrical line is penetrated or dangerous gases or fluids are escaping from a broken line, the excavator immediately shall:

inform emergency personnel of the municipality in which such electrical short or broken line is located; and
take any other action as may be reasonably necessary to protect persons and property and to minimize hazards until arrival of the operator's personnel or emergency first responders.

If the operator notifies the excavator that it has no underground facilities in the area of the planned excavation, fails to respond or improperly marks the tolerance zone for the facilities, the excavator may proceed and shall not be liable to the operator for any direct or indirect damages resulting from contact with the operator's facilities, except that nothing in this act shall be construed to hold any excavator harmless from liability to the operator in those cases of gross negligence or willful and wanton conduct.

In no event shall the excavator be responsible for any damage to underground facilities if such damage was caused by the failure of the operator to correctly and properly mark the location of the tolerance zone of the damaged facility.

For economic damages in any civil court of this state, failure of an operator to inform the excavator within two working days of the tolerance zone of the underground facilities of the operator in the manner required shall not give rise to a cause of action on the part of the excavator against an operator, except in cases of inaccurate marking of the tolerance zone, gross negligence or willful and wanton conduct on the part of the operator.

Trenchless Excavation Training Requirements

Each excavator using trenchless excavation techniques shall develop and implement operating guidelines for trenchless excavation techniques. At a minimum, the guidelines shall require the following:

Training in the requirements of the Kansas underground utility damage prevention act;

training in the use of nonintrusive methods of excavation used if there is an indication of a conflict between the tolerance zone of an existing facility and the proposed excavation path;

calibration procedures for the locator and sonde if this equipment is used by the excavator;

recordkeeping procedures for measurements taken while boring;

training in the necessary precautions to be taken in monitoring a horizontal drilling tool when backreaming or performing a pullback operation that crosses within the tolerance zone of an existing facility;

training in the maintenance of appropriate clearance from existing facilities during the excavation operation and during the placement of new underground facilities;

for horizontal directional drilling operations, a requirement to visually check the drill head and pullback device as they pass through potholes, entrances, and exit pits; and

emergency procedures for unplanned utility strikes.

Excavator's Option for Pre-Engineeered and Permitted Projects

A request for locates for a preengineered project or a permitted project is valid from the excavation start date until completion of the project. Preengineered or permitted projects are not required to limit the description of the excavation site to an area in which the proposed excavation reasonably can be completed within the 15 calendar days.

If an excavator wishes to conduct an excavation as a permitted project, the permit obtained by the excavator shall have been issued by a federal, state, or municipal governmental entity and shall have been issued contingent on the excavator's having met the following requirements:

Notified all operators with facilities in the vicinity of the excavation of the intent to excavate as a permitted project;

visually verified the presence of the facility markings at the excavation site; and

Served notice of intent of excavation at least two full working days, but not more than 15 calendar days before the scheduled excavation start date, on each operator having underground facilities located in the proposed area of excavation.

An excavator shall not claim preengineered project status unless the public agency responsible for the project performed the following before allowing excavation:

identified all operators that have underground facilities located within the excavation site;

requested that the operators that have underground facilities located within the excavation site to verify the location of their underground facilities, if any, within the excavation site;

required the location of all known underground facilities to be noted on updated engineering drawings as specifications for the project;

notified all operators that have underground facilities located within the excavation site of the project of any changes to the engineering drawings that could affect the safety of existing facilities; and

Served notice of intent of excavation at least two full working days, but not more than 15 calendar days before the scheduled excavation start date, on each operator having underground facilities located in the proposed area of excavation.

Identification of location of facilities; duties of operator;

General

Each operator who has an underground facility shall become a member of the notification center

Each operator shall perform the following:

File and maintain maps of the operator's underground facilities or a map showing the operator's service area with the notification center; and

file and maintain, with the notification center, the operator's telephone contact number that can be accessed on a 24-hour-per-day basis.

Except in cases of emergencies or separate agreements between the parties, each operator shall perform one of the following within the two working days before the excavation scheduled start date assigned by the notification center:

Inform the excavator of the location of the operator's underground facilities in the area described in the notice of intent of excavation; or

notify the excavator that the operator has no facilities in the area described in the notice of intent of excavation.

If the excavator notifies the notification center, within two working days after the initial identification of the tolerance zone by the operator, that the identifiers have been improperly removed or altered, the operator shall make a reasonable effort to reidentify the tolerance zone within one working day after the operator receives actual notice from the notification center.

Upon receiving notice from an operator that damage to its underground facility has occurred, the operator immediately shall dispatch personnel to the location to provide necessary temporary or permanent repair of the damage.

All facilities installed by an operator after January 1, 2003, shall be locatable.

Marking Requirements

The requirement to inform the excavator of the facility location shall be met by marking the location of the operator's facility and identifying the name of the operator with flags, paint, or any other method by which the location of the facility is marked in a clearly visible manner.

If an operator receives a request to locate its facilities for an emergency condition, such operator shall make a reasonable effort to identify the location of its facility within two hours of receiving notification or before excavation is scheduled to begin, whichever is later.

In marking the location of its facilities, each operator shall use the following colors to indicate the type of facility:

Facility Type	Color
Electric power distribution lines and transmission lines	Safety red
Gas distribution and transmission lines	Safety yellow
hazardous liquid distribution and transmission lines	Safety yellow
Telephone, telegraph, and fiber optic system lines	Safety orange
cable television lines; alarm lines; and signal lines	Safety orange

If the facility has any outside dimension that is eight inches or larger, the operator shall mark its facility so that the outside dimensions of the facility can be easily determined by the excavator.

If the facility has any outside dimension that is smaller than eight inches, the operator shall mark its facility so that the location of the facility can be easily determined by the excavator.

If the operator has no facilities in the area described in the notice of intent of excavation, the operator shall perform one of the following:

Mark the excavation site in a manner indicating that the operator has no facilities at that site; or

contact the excavator by telephone, facsimile, or any other means of communication.

Two documented attempts by the operator to reach an excavator by telephone during normal business hours shall constitute compliance with this paragraph.

Meet on Site and Whitelining: Obligations of Operator

If the notice of intent of excavation contains a request for a meet on site, the operator shall meet with the excavator at a mutually agreed-upon time within two working days after the day on which the notice of intent of excavation was given.

After attending a meet on site, the operator shall inform the excavator of the tolerance zone of the operator's facilities in the area of the planned excavation within two working days before the excavation scheduled start date that was agreed to at the meet on site.

Any operator may request that the excavator whiteline the proposed excavation site only if the description of the excavation site does not provide an accurate description of the excavation site.

If the operator requests that the excavator use whitelining at the excavation site, the operator shall document the whitelining request and any subsequent meetings regarding the facility location for that excavation site. The operator shall maintain records of the whitelining documentation for six months after the excavation scheduled start date. The documentation shall include the following:

A record signed by the operator stating the name of the excavator contacted for the request for whitelining;

verification that both parties understand the description of the excavation site;

the agreed-upon excavation scheduled start date;

the date and time of the request for whitelining; and

the name and company affiliation of each person contacted about the request for whitelining.

Reporting of Damages to Corporation Commission

Each operator that received more than 2,000 requests for facility locations in the preceding calendar year shall file a damage summary report at least semiannually with the Kansas corporation commission. The report shall include information on each incident of facility damage resulting from excavation activity that was discovered by the operator during that period. For each incident, at a minimum the following data, if known, shall be included in the report:

The type of operator;

the type of excavator;

the type of excavation equipment;

the city or county, or both, in which the damage occurred;

the type of facility that was damaged;

the date of damage, specifying the month and year;

the type of locator;

the existence of a valid notice of intent of excavation; and

the primary cause of the damage.

The damage summary report for the first six months of the calendar year shall be due on or before August 1 of the same calendar year. The damage summary report for the last six months of the calendar year shall be due on or before February 1 of the next calendar year. No semiannual report shall be due for a period if any portion of the period falls within the six months immediately following the effective date of this regulation.

Obligations of the Notification Center

The notification center shall provide prompt notice to each affected member of any proposed excavation.

Each operator who has an underground facility within the state shall be afforded the opportunity to become a member of the notification center on the same terms as the original members.

Notice shall be provided to each affected operator of any excavation site for which the location has been requested if the affected operator is a member of the notification center and has facilities recorded with the notification center in the area of the proposed excavation site.

A record of receipts for each notice of intent of excavation shall be maintained for four years, including an audio record of each notice of intent of excavation and a written or electronic version of the notification sent to each operator that is a member.

A copy of the record documenting the notice of intent of excavation shall be provided to the commission or to the person giving the notice of intent of excavation, upon request.

A quality control program shall be established and maintained. The program shall ensure that the employees receiving and recording the notices of intent of excavation are adequately trained.

KCC Staff Investigation Procedures

After investigation, if the commission staff believes that there has been a violation or violations of the Kansas underground utility damage prevention act and the commission staff determines that penalties or remedial action is necessary to correct the violation or violations, the commission staff shall serve a notice of probable noncompliance on the person or persons against whom a violation is alleged. Service may be made by registered mail or hand delivery.

Any notice of probable noncompliance issued under this regulation may include the following:

A statement of the provisions of the statutes, regulations, or commission orders that the respondent is alleged to have violated and a statement of the evidence upon which the allegations are based;

a copy of this regulation; and

any proposed remedial action requested by the commission staff.

Within 30 days of receipt of a notice of probable noncompliance, the recipient shall respond by mail in at least one of the following ways:

submit written explanations, a statement of general denial, or other materials contesting the allegations;

submit a signed agreement to the terms of the noncompliance findings; or

submit a signed acceptance of any remedial action proposed by the commission staff in the notice of noncompliance, if the respondent agrees to undertake the remedial action.

The commission staff may amend a notice of probable noncompliance at any time before issuance of a show cause order. If an amendment includes any new material allegations of fact or if the staff proposes an increased civil penalty amount or additional remedial action, the respondent shall have 30 days from service of the amendment to respond.

Unless good cause is shown or a consent agreement is executed by the commission staff and the respondent before the expiration of the 30-day time limit, the failure of a party to mail a timely response to a notice of probable noncompliance shall constitute an admission to all factual allegations made by the commission staff and may be used against the respondent in a show cause proceeding.

At any time before an order is issued assessing penalties or requiring remedial action or before a hearing, the commission staff and the respondent may agree to dispose of the case by joint execution of a consent agreement. The consent agreement may allow for a smaller penalty than otherwise required. The consent agreement may also allow for nonmonetary remedial penalties. Upon joint execution, the consent agreement shall become effective when the commission issues an order approving the consent agreement.

Each consent agreement shall include the following:

An admission by the respondent of all jurisdictional facts;

an express waiver of any further procedural steps and of the right to seek judicial review or otherwise challenge or contest the validity of the commission's show cause order;

an acknowledgment that the notice of probable noncompliance may be used to construe the terms of the order approving the consent agreement; and

a statement of the actions required of the respondent and the time by which the actions shall be completed.

If any violation resulting in a notice of probable noncompliance is not settled with a consent agreement, a show cause proceeding may be initiated by the commission no sooner than 30 days after the respondent has been served with a notice of probable noncompliance.

The respondent shall respond to a show cause order within 30 days of service of the order by filing an answer with the commission conforming to the requirements of K.A.R. 82-1-218 and K.A.R. 82-1-219. The respondent's failure to respond within 30 days shall be considered an admission of noncompliance, unless good cause is shown.

The respondent may request a hearing to challenge the allegations set forth in the show cause order by filing a motion with the commission within 30 days of the issuance of a show cause order.

An order may be issued by the commission to open a formal investigation docket regarding any potential noncompliance with the Kansas underground utility damage prevention act, and amendments thereto, or any regulations or orders pursuant to that act. If the commission finds evidence that any party to the investigation docket was not in compliance, a show cause order may be issued by the commission. If a show cause order is issued during the course of a formal investigation, the staff shall not be required to issue a notice of probable noncompliance.