CHAPTER 41 SENATE BILL No. 490 An  Act amending the Kansas underground utility damage prevention act; concerning cer-
tain regulations thereof; amending K.S.A. 2001 Supp. 66-1802, 66-1804, 66-1805, 66-
1806, 66-1807, 66-1809, 66-1810, 66-1811 and 66-1812 and repealing the existing sec-
tions.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2001 Supp. 66-1802 is hereby amended to read as
follows: 66-1802. As used in this act:

      (a) ``Damage'' means any impact or contact with an underground fa-
cility, its appurtenances or its protective coating, or any weakening of the
support for the facility or protective housing which requires repair.

      (b) ``Emergency'' means any condition constituting a clear and pres-
ent danger to life, health or property, or a customer service outage.

      (c) ``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.

      (d) ``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: (1) Uses such dwelling as a primary residence; and (2)
excavates on the premises of such dwelling.

      (e) ``Facility'' means any underground line, system or structure used
for gathering, storing, conveying, transmitting or distributing gas, elec-
tricity, communication, crude oil, refined or processed petroleum, petro-
leum products or hazardous liquids; facility shall not include, any pro-
duction petroleum lead lines, salt water disposal lines or injection lines,
which are located on unplatted land or outside not located on platted land
or inside the corporate limits of any city.

      (f) ``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.

      (f) (g) ``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 resolution adopted August, 1984, by the utility
location coordination council of the American public work association
rules and regulations promulgated by the state corporation commission
in the administration and enforcement of this act.

      (g) (h) ``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, emer-
gency medical or other emergency services.

      (h) (i) ``Notification center'' means the statewide communication sys-
tem 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.

      (i) (j) ``Operator'' means any person who owns or operates an under-
ground 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.

      (j) (k) ``Preengineered project'' means a public project or a project
which is approved by a public agency wherein the public agency respon-
sible 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 draw-
ing as specifications for the project.

      (k) (l) ``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.

      (l) (m) ``Person'' means any individual, partnership, corporation, as-
sociation, franchise holder, state, city, county or any governmental sub-
division or instrumentality of a state and its employees, agents or legal
representatives.

      (n) ``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.

      (o) ``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 sur-
veyor's plat has been filed of record in the office of the register of deeds
in the county where the land is located.

      (m) (p) ``Tolerance zone'' means the area within 24 inches of the
outside dimensions in all horizontal directions of an underground facility.

      (q) ``Update'' means an additional request from the excavator to ex-
tend the time period of the request for intent to excavate beyond the 15
calendar day duration of the request.

      (r) ``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.

      (n) (s) ``Working day'' means every day, except Saturday, Sunday or
a legally proclaimed local, state or federal holiday Monday through Friday
beginning at 12:01 a.m., except for the following officially recognized hol-
idays: New Year's day, Memorial day, Independence day, Labor day,
Thanksgiving day, the day after Thanksgiving and Christmas.

      Sec.  2. K.S.A. 2001 Supp. 66-1804 is hereby amended to read as
follows: 66-1804. (a) 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 10 working 15 calendar days before commencing the
excavation activity the scheduled excavation start date, on each operator
having underground facilities located in the proposed area of excavation.

      (b) 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 rea-
sonably can be completed within the 15 calendar days.

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

      (b) (d) 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 date the excavation activity is to commence
and the type of excavation being planned. The notice shall also contain
the specific location of the excavation if it is to take place within the
boundaries of a city or the specific quarter sections if outside the bound-
aries of any city.

      (e) The person filing the notice of intent to excavate shall, at the re-
quest of the operator, whiteline the proposed excavation site when the
excavation location cannot be described with sufficient detail to enable
the operator to ascertain the location of the proposed excavation.

      (c) (f) The provisions of this section shall not apply to a preengineered
project or a permitted project, except that the excavators shall be required
to give notification in accordance with this section prior to starting such
project.

      Sec.  3. K.S.A. 2001 Supp. 66-1805 is hereby amended to read as
follows: 66-1805. (a) This act recognizes the value of and encourages and
authorizes the establishment of a single notification center for the state
of Kansas. The notification center shall provide prompt notice to each
affected member of any proposed excavation. Each operator who has an
underground facility shall become a member of the notification center.

      (b) Upon the establishment of a notification center in compliance
with this act, Notification, as required by K.S.A. 2001 Supp. 66-1804, and
amendments thereto, to operators shall be given by notifying the notifi-
cation center by telephone at the toll free number or by other commu-
nication methods approved by the notification center. The content of such
notification shall be as required by K.S.A. 2001 Supp. 66-1804, and
amendments thereto.

      (c) 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.

      (d) A suitable record shall be maintained by the notification center
to document the receipt of notices from excavators as required by this
act.

      Sec.  4. K.S.A. 2001 Supp. 66-1806 is hereby amended to read as
follows: 66-1806. (a) Within two working days, beginning on the later of
the first working day after the excavator has filed notice of intent to ex-
cavate or the first day after the excavator has whitelined the excavation
site, an operator served with notice shall, in advance of the proposed
excavation, unless otherwise agreed between the parties, shall inform the
excavator of the tolerance zone of the underground facilities of the op-
erator in the area of the planned excavation by marking, flagging or other
acceptable method no sooner than two working days prior to planned
excavation.

      (b) If the operator has no underground facilities in the area of the
proposed excavation, such operator, before the excavation start date, shall
notify the excavator that it has no facilities in the area of proposed ex-
cavation by telephone, facsimile, marking the area all clear or by other
technology that may be developed for such purposes.

      (b) (c) 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.

      (c) (d) If the operator notifies the excavator that it has no under-
ground 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.

      (e) For economic damages in any civil court of this state, failure of
an operator to inform the excavator within two working days of the tol-
erance zone of the underground facilities of the operator in the manner
required by subsection (a) of K.S.A. 2001 Supp. 66-1806, and amendments
thereto, shall not give rise to a cause of action on the part of the excavator
against an operator, except that nothing in this act shall be construed to
hold any operator harmless from liability in those cases of inaccurate
marking of the tolerance zone, gross negligence or willful and wanton
conduct. Such failure may subject an operator to civil penalties as deter-
mined by the state corporation commission.

      (f) Any person claiming that an operator has failed to inform the
excavator within two working days of the tolerance zone of the under-
ground facilities of the operator shall file a complaint with the state cor-
poration commission requesting enforcement of subsection (a) within one
year of becoming aware of the violation.

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

      Sec.  5. K.S.A. 2001 Supp. 66-1807 is hereby amended to read as
follows: 66-1807. (a) 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.

      (b) If an operator receives a request to locate its facilities for an emer-
gency 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.

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

      Sec.  6. K.S.A. 2001 Supp. 66-1809 is hereby amended to read as
follows: 66-1809. (a) Upon receiving information as provided in K.S.A.
2001 Supp. 68-1806, and amendments thereto, an excavator shall exercise
such reasonable care as may be necessary for the protection of any un-
derground facility in and near the construction area when working in close
proximity to any such underground facility.

      (b) An excavator using a trenchless excavation technique shall meet
minimum operating guidelines as prescribed in rules and regulations de-
veloped and adopted by the state corporation commission in support of
this act.

      Sec.  7. K.S.A. 2001 Supp. 66-1810 is hereby amended to read as
follows: 66-1810. When any contact with or damage to any underground
facility occurs, the operator shall be informed immediately by the exca-
vator. Upon receiving such notice, the operator immediately shall dis-
patch personnel to the location to provide necessary temporary or per-
manent repair of the damage. 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 per-
sonnel or emergency first responders.

      Sec.  8. K.S.A. 2001 Supp. 66-1811 is hereby amended to read as
follows: 66-1811. (a) In a civil action in a court of this state when it is
shown by competent evidence that personal injury, death or other dam-
ages, including damage to any underground facilities, occurred as a result
of a violation of this act, there shall be a rebuttable presumption of neg-
ligence on the part of the violator.

      (b) The provisions of subsection (a) shall not apply if the operator
whose underground facilities are damaged fails to participate in the no-
tification center.

      (c) (b) 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.

      (d) (c) Nothing in this act is intended to limit or modify the provisions
of:

      (1) K.S.A. 60-258a, and amendments thereto; or

      (2) the national electrical safety code, which would otherwise be ap-
plicable.

      Sec.  9. K.S.A. 2001 Supp. 66-1812 is hereby amended to read as
follows: 66-1812. Any person to whom this act applies, who violates any
of the provisions contained in this act, shall be subject to civil penalties
and injunctive relief as set out in K.S.A. 66-1,151, and amendments
thereto, and any remedies established in rules and regulations promul-
gated by the state corporation commission in support of this act.

      Sec.  10. K.S.A. 2001 Supp. 66-1802, 66-1804, 66-1805, 66-1806, 66-
1807, 66-1809, 66-1810, 66-1811 and 66-1812 are hereby repealed.

      Sec.  11. This act shall take effect and be in force from and after
January 1, 2003 and its publication in the statute book.

Approved April 8, 2002.
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