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367.4901 Legislative declaration — Short title for KRS 367.4901 to 367.4917.

The General Assembly finds that the objective of underground facility damage prevention and the resulting benefits of public and workplace safety and protection of consumer services require an effective underground damage prevention procedure. KRS 367.4901 to 367.4917, which may be cited as the “Underground Facility Damage Prevention Act of 1994,” are created to provide for this procedure and accomplish this objective.

 367.4903 Definitions for KRS 367.4903 to 367.4917.

As used in KRS 367.4903 to 367.4917:

(1) “Underground facility” means an underground line or system used for producing, storing, conveying, transmitting, or distributing telecommunications, electricity, gas, petroleum, petroleum products, cable television, hazardous liquids, water, steam, or sewerage, including storm drainage;

(2) “Damage” means weakening of structural or lateral support or penetration of a facility coating, housing, or other protective device. It also means the partial or complete dislocation or severance of underground facilities or rendering any underground facility permanently inaccessible by the placement of a permanent structure having one (1) or more stories;

(3) “Demolition” means any operation by which a structure or mass of material is wrecked, razed, moved, or removed by means of mechanized equipment, or discharge of explosives;

(4) “Excavator” means any entity or individual, other than those exempted by KRS 367.4915, engaged in excavation, demolition, or timber harvesting using mechanized equipment;

(5) “Operator” means any entity or individual owning or operating underground facilities to serve the public, but does not include any entity or individual owning or operating underground storage tanks that are subject to Subchapter 60 of KRS Chapter 224;

(6) “Excavation” means any activity that results in the movement, placement, probing, boring, or removal of earth, rock, or other material in or on the ground by the use of any tools or equipment, by the discharge of explosives, or by the harvesting of timber using mechanized equipment. Forms of excavating include but are not limited to auguring, backfilling, digging, ditching, drilling, driving, grading, piling, pulling-in, ripping, scraping, trenching, and tunneling. Driving wooden stakes by use of hand tools to a depth of six (6) inches or less below existing grade shall not constitute excavation;

(7) “Emergency” means there exists substantial likelihood that loss of life or property, the inability to restore interrupted utility service, an imminent danger to health or the environment, or the blockage of public transportation facilities will result before procedures required under KRS 367.4909 to 367.4913 can be completed;

(8) “Protection notification center” means an operator-provided notification center through which an excavator can contact the operator to enable the operator to provide the excavator with the approximate location of underground facilities;

(9) “Kentucky Contact Center” means Kentucky Underground Protection, Inc., organized as a nonprofit corporation and a multimember protection notification center providing a single telephone contact number and designated by the Kentucky Public Service Commission to be the sole recipient of 811 dialed calls through which an excavator may contact all Kentucky Contact Center members and all affected member operators may receive information to enable them to provide the excavator with the approximate location of underground facilities;

(10) “Routine road maintenance” means preservation, including road repairs and resurfacing, and the replacement of signs, posts, and guardrails at the exact same location when no additional penetration of existing grade is necessary, but does not include road construction, installation of signs, posts, and guardrails, or any activity that requires penetration of existing grade;

(11) “Approximate location,” when referring to an underground facility, means:

(a) For underground metallic facilities and underground nonmetallic facilities with metallic tracer wire, a distance not to exceed the combined width of the underground facility plus twenty-four (24) inches measured from the outer edge of each side of the underground facility; or

(b) For unmapped or untonable facilities, the underground facility shall be located as accurately as possible from field location records and shall require notification from the operator of the inability to accurately locate the facility;

(12) “Working day” means every day, except Saturday, Sunday, and holidays established by federal or state statute. For purposes of measuring any period of time prescribed or allowed under the Underground Facility Damage Prevention Act of 1994, a working day shall commence at 12:01 a.m. eastern time and end at 12 midnight eastern time excluding the day the locate request was made;

(13) “Nonintrusive excavating” means excavation using hand tools or equipment that uses air or water pressure as the direct means to break up soil for removal by hand tools or vacuum excavation;

(14) “Mechanized equipment” means mechanical power equipment, including trenchers, bulldozers, power shovels, augers, backhoes, scrapers, drills, cable and pipe plows, skidders, and yarders;

(15) “Normal excavation locate request” means a notification made to a protection notification center where a request for locating utility facilities is processed;

(16) “Emergency locate request” means a notification made to a protection notification center by an excavator to alert facility owners or operators of the need to begin immediate excavation in response to an emergency;

(17) “Design information request” means a notification made to a protection notification center by a person providing professional services and making a request in preparation for bidding, preconstruction engineering, or other advance planning efforts. A design information request may not be used for excavation purposes;

(18) “Large project request” means an area of excavation occurring on or after July 1, 2016, measuring more than two thousand (2,000) feet in length. Multiple excavation notifications in an area may be considered together in determining if the excavations are part of a large project;

(19) “Commission” means the Kentucky Public Service Commission;

(20) “Person” means an individual, an entity, a foreign entity, or other legal or commercial entity;

(21) “Positive response” means an automated or written communication system provided by each protection notification center for all locate requests the center receives pursuant to Section 2 of this Act that allows excavators, locators, operators, and other interested parties to determine the status of locating an underground facility and requires response and verification by operators and excavators to comply with their respective requirements of the Underground Facility Damage Prevention Act of 1994;

(22) “Unique identification number” or “locate request number” means a unique number that any protection notification center or operator pursuant to Section 4 of this Act has assigned to a locate request for excavation;

(23) “Locator” means any entity or individual that locates lines or facilities for an operator;

(24) “Second notice” means a notice that is made by an excavator to a notification center when an operator has failed to comply with the positive response requirements under subsection (5) of Section 2 of this Act;

(25) “Tolerance zone” means a strip of land at least four (4) feet wide but not wider than the width of the underground facility plus two (2) feet on either side of the outer limits of the facility;

(26) “Untonable facility” means an underground facility that cannot be located from the surface using locating methods which meet industry standards and that requires additional efforts and extended time;

(27) “Work site contact” means an individual that will be present at the excavation site when the excavation will occur; and

(28) “Fiber-to-the-premises” means a service that provides network connectivity between a location and a subscriber using fiber.

367.4905 Permit not relieving person from complying with provisions of KRS 367.4905 to 367.4917.

A permit issued pursuant to law authorizing excavation or demolition work shall not relieve a person from the responsibility for complying with KRS 367.4905 to 367.4917.

367.4907 Responsibility of persons engaging in nonemergency and emergency work.

Every person who engages in nonemergency timber harvesting using mechanized equipment, excavation, or demolition work shall conform to KRS 367.4905 to 367.4917. Compliance with excavator and operator notification requirements of KRS 367.4905 to 367.4917 shall not be required of authorized persons responding to emergency situations. However, these persons shall take every reasonable precaution to protect the public safety and underground facilities of others. 

367.4909 Operator to provide protection notification center access to excavators — Kentucky Contact Center — Report of excavation damage — Rejection of design information request — Color coding for temporary underground facility markers — Operator’s inability to comply due to extraordinary circumstances — Underground facilities installed after January 1, 2013.

(1) Each operator shall provide protection notification center access to excavators. 

(2) Voluntary operator membership in the Kentucky Contact Center shall satisfy the requirement of subsection (1) of this section.

(3) Each operator member of the Kentucky Contact Center shall provide and update as needed to the Kentucky Contact Center the general location of its underground facilities, the operator identity and business address, and emergency notification telephone numbers.

(4) Each operator shall report to the commission excavation damage to an underground facility used in the transportation of gas or hazardous liquid within thirty (30) calendar days of being informed of the damage. Each report of excavation damage shall be made by electronic mail or as otherwise prescribed by the commission.

(5) An operator shall respond to facility locate requests and provide a positive responseas follows:

(a) To a normal excavation locate request,within two (2) working days after receiving notification from an excavator or any time prior to the scheduled excavation start date if agreed upon as provided in subsection (7) of Section 5 of this Act, excluding large project requests, design information requests, emergency locate requests, and unmapped or untonable facilities;

(b) To an emergency locate request,as quickly as possible but not to exceed forty-eight (48) hours after receiving notification from an excavator;

(c) To a design information request,within ten (10) working days after receiving notification from the person making the request;

(d) To a large project request, within two (2) working days the operator shall notify the excavator that an excavation area has been determined to be a large project, and the operator shall respond to the requestwithin five (5) working days from the later of receiving notification from an excavator or prior tothe scheduled excavation start date for that location if agreed upon as provided in subsection (7) of Section 5 of this Act;

(e) To an unmapped or untonable facility request, within two (2) working days the operator shall notify the excavator that an excavation area has been determined to be an unmapped or untonable project, and the operator shall respond to the request within five (5) working days for a normal locate request or eight (8) working days for a large project request from the later  of receiving notification from an excavator or prior to the scheduled excavation start date if agreed upon as provided in subsection (7) of Section 5 of this Act; and

(f) To a fiber-to-the-premises broadband deployment excavation request, in locations not already served by fiber-to-the-premises, within four (4) working days.

(6) Within one (1) working day after receiving a second notice request from an excavator pursuant to subsection (12) of Section 3 of this Act, an operator shall locate its facility and update the positive response system.

(7) An operator shall, after receiving an emergency locate request, a normal excavation locate request, an unmapped or untonable locate request, or a large project request as provided in subsection (5) of this section:

(a) Inform the excavator of the approximate location and description of any of the operator’s underground facilities that may be damaged or pose a safety concern because of excavation or demolition;

(b) Unless permanent facility markers are provided, provide temporary markings to inform the excavator of the ownership and approximate location of the underground facility; and

(c) Provide a positive response to the requesting party.

(8) Upon receiving a design information request, an operator shall contact the person making the request within the time period specified in subsection (5) of this section. The operator shall:

(a) Designate with temporary underground facility markers the location of all underground facilities owned by the operator within the area of the design information request as defined in KRS 367.4903;

(b) Provide to the person making the design information request a description of all underground facilities owned by the operator in the area of the design information request and the location of the facilities, which may include drawings marked with a scale, dimensions, and reference points for underground utilities already built in the area or other facility records that are maintained by the operator; or

(c) Allow the person making the design information request or an authorized person to inspect the drawings or other records for all underground facilities with the proposed area of excavation at a location that is acceptable to the operator.

(9) An operator may reject a design information request and not be held in violation of subsection (6) of this section based upon security considerations or if producing the information will place the operator at a competitive disadvantage, pending the operator obtaining additional information confirming the legitimacy of the notice. The operator shall notify the person making the design information request and may request additional information.

(10) Temporary underground facility markers shall consist of paint, chalk, flags, stakes, or any combination thereof and shall conform to the following standards of the American Public Works Association uniform color code:

(a) Electric power distribution and transmission Safety Red

(b) Municipal electric systems Safety Red

(c) Gas distribution and transmission High visibility safety yellow

(d) Oil distribution and transmission High visibility safety yellow

(e) Dangerous materials, product lines High visibility safety yellow

(f) Telecommunication systems and cable television Safety alert orange

(g) Temporary survey markings Safety pink

(h) Police and fire communications Safety alert orange

(i) Water systems Safety precaution blue

(j) Sewer and storm drainage systems Safety green

(k) Proposed excavation or construction boundaries White

(l) Reclaimed water, slurry, and irrigation facilities Purple

(m) Fiber optic and critical telecommunication Safety alert orange

(11) If extraordinary circumstances exist, an operator shall notify the excavator of the operator’s inability to comply with this section. Notification under this subsection shall temporarily relieve the operator of complying with subsections (5) and (6) of this section until the operator can recover from the extraordinary circumstances.Extraordinary circumstances include weather that makes it impossible for any combination of facility markers identified in subsection (10) of this section to be used, extreme weather conditions, force majeure, disasters, or civil unrest that make timely response difficult or impossible.

(12) All underground facilities installed after January 1, 2013, shall include a means to accurately identify and locate the underground facilities from the surface. This subsection does not apply to the repair of existing facilities.

367.4911 Excavator or person responsible for excavation to notify operator of work schedule — Responsibilities of excavator.

(1) (a) Each excavator, or person responsible for an excavation, planning excavation,or demolition work shall, not less than two (2) full working days nor more than ten (10) full working days prior to commencing work, unless a future start date is agreed upon as provided in subsection (7) of Section 5 of this Act, notify each affected operator’s designated protection notification center of the excavator’s intended work and work schedule.

(b) The two (2) full working days provided for in paragraph (a) of this subsection have elapsed if all affected operators have notified the person.

(2) Locate requests are valid for twenty-one (21) calendar days from the day of the initial request.

(3) Each excavator shall provide each applicable protection notification center with adequate information regarding:

(a) Name and phone number of the excavator or person requesting the underground facility locate;

(b) Approximate location and type of work being performed by the excavator, including if the request involves a fiber-to-the-premises broadband deployment excavation;

(c) Name and phone number of work site contact;

(d) Estimated start date and start time of excavation; and

(e)The excavation or demolition site location or locations, each of which shall not exceed five thousand (5,000) feet in length unless the excavator and operator agree to a larger area, the city or community, county and street address, including the nearest cross street.

(4) If more than one (1) excavator will operate at the same site, each excavator shall notify the protection notification centers individually. Notification by an excavator will serve as notification for any of that excavator’s employees. Failure by an excavator to notify the protection notification center does not relieve individual employees of responsibility.

(5) The excavator shall inform and provide to excavation or demolition site employees: 

(a) The underground facility location provided by each operator;

(b) Any related safety information provided by each operator; and

(c) The locate request identification number assigned by each protection notification center.

(6) The excavator shall protect and preserve temporary underground facility markers until the scheduled excavation or demolition is completed.

(7) If, after the response time provided by KRS 367.4909(5), the excavator finds evidence of an unmarked underground facility at the site, he shall immediately notify a protection notification center. When an excavator has complied with subsection (1) of this section and evidence of an unmarked underground facility is uncovered, the operator shall have six (6) business hours to identify the underground facility.

(8) The excavator shall contact the protection notification center to request remarking two (2) working days in advance of the expiration of each twenty-one (21) day period while excavation or demolition continues or if:

(a) The markings of any underground facility have been removed or are no longer visible; or

(b) The excavator has changed the work plan or location previously filed. 

(9) (a) Each excavator who conducts or is responsible for any excavation or demolition that results in underground facility damage shall cease excavation or demolition activities and notify all affected operators of the location and nature of the underground facility damage.

(b) If the underground facility damage causes concern for public or workplace safety, the excavator shall notify appropriate public safety agencies of the location and nature of the safety concern.

(c) If the underground facility damage results in the escape of any flammable, toxic, or corrosive gas or liquid, the excavator shall cease excavation or demolition activities and immediately report to the appropriate authorities by calling the 911 emergency telephone number.

(10) When excavation or demolition is necessary within the tolerance zone, the excavator shall hand-dig or use nonintrusive means to avoid damage to the underground facility, except that mechanized equipment may be used:

(a) To remove the pavement or other manmade hard surface if used during the initial penetration only to the depth necessary and if an individual other than the equipment operator visually monitors the excavation activity;

(b) To remove indigenous rock if used during the initial penetration only to the extent necessary, if an individual other than the equipment operator visually monitors the excavation activity, and if the excavation is planned to avoid damage to the underground facility. However, if the underground facility contains flammable, toxic, corrosive, or hazardous products, the excavator shall notify the facility owner of the excavator’s intent prior to removing indigenous rock;

(c) To remove materials that are more than twelve (12) inches in any direction from the outer edge of the located facility if the excavator visually identifies the precise location of the underground facility or visually confirms that no facility is present within the depth of the excavation, if an individual other than the equipment operator visually monitors the excavation activity, and if the excavation is planned to avoid damage to the underground facility; and

(d) To place shores into an existing excavation or remove shores from an existing excavation.

(11) Upon request by an operator or when the proposed excavation location cannot be accurately identified, an excavator shall mark the boundaries of the location to be excavated using the procedure set forth in subsection (10)(k) of Section 2 of this Act. After marking the boundaries, the excavator shall contact the protection notification center or centers. The requirements of subsections (5) to (11) of Section 2 of this Act are reestablished upon the operator receiving notification of this marking from the protection notification center or centers. This marking shall not alter, or relieve the excavator from complying with, the requirements of KRS 367.4905 to 367.4917.

(12) If an operator has failed to give a positive response within the timeframes provided in subsection (5) of Section 2 of this Act, the excavator shall submit a second notice to the protection notification center. If one (1) working day after receiving a second notice request as provided in subsection (6) of Section 2 of this  Act, the operator has still failed to give a positive response, an excavator that has fully complied with this section shall not be deemed liable for any damages to an underground facility that would have been located if the operator had complied with the operator’s duties under Section 2 of this Act, except for damages to a  person or an underground facility due to negligence or intentional misconduct of an excavator. This subsection shall not apply to any underground facility used to transport gas or hazardous liquid subject to the federal pipeline safety laws, 49 U.S.C. secs. 60101 et seq.

367.4913 Duties of protection notification center — Board of directors of Kentucky Contact Center — Kentucky Contact Center to serve all counties.

(1) All protection notification centers shall:

(a) Provide locate request services during working days and provide an emergency contact number for incidents occurring outside the working day;

(b) Provide a positive response system for excavators, locators, operators, and other interested parties to determine the status of locating an underground facility;

(c) Provide any excavation request with an identification number and the names of the facility owners or operators who will be notified for each locate request;

(d) Promptly after receiving an excavation or demolition work notification from an excavator, provide to each of its affected operator members the excavator information required by KRS 367.4911(3);

(e) Maintain a list of all its operator members, their business addressesand their business and emergency telephone numbers and provide this information in accordance with KRS 64.012 with the county clerk of each county where the operator member has underground facilities. The county clerk shall provide this information upon request for the actual cost of providing a copy, to be paid by the requesting party to the county clerk. The county clerk shall assume no liability associated with the receipt of this information from the protection notification center or for subsequent provision of this same information to the requesting party;

(f) Make the operator members information list available to any person for inspection at its place of business without charge or provide a copy of the list to any person for any county upon request for a fee not to exceed the actual cost of providing a copy;

(g) Define and adopt policies and procedures for processing design information requests;

(h) Provide the person making a design information request a list of identified operators that will receive notification and notify those operators;

(i) Maintain the following information provided by excavators for all requests to locate facilities for at least five (5) years from the date of the request:

1. Name and phone number of the excavator or person requesting the underground facility locate;

2. Location and type of work being performed by the excavator;

3. Name and phone number of work site contact;

4. Name, address, and phone number of underground facility operators; and

5. Estimated start date and start time of excavation;

(j) Provide contact information for the protection notification center on its Web site or pursuant to paragraph (e) of this subsection; and

(k) Provide public awareness education and damage prevention programs in the manner and amount determined by each protection notification center.

(2) The Kentucky Contact Center shall be governed by a board of directors are elected by the membership. Board seats shall be composed of no more than twenty-one (21) voting members and six (6) nonvoting members andmay be filled by representatives of the following:

(a) A natural gas provider;

(b) An electric provider;

(c) A telecommunications provider;

(d) A water/sewer provider;

(e) An interstate pipeline operator;

(f) A municipal utility operator;

(g) A commercial excavator;

(h) An oil and gas operator; and 

(j) At least one (1) but not more than six (6) advisory, nonvoting members representing the following:

1. Public Service Commission;

2. Kentucky Transportation Cabinet;

3. Home Builders Association of Kentucky;

4. National Electric Contractors Association;

5. Associated General Contractors of Kentucky; or

6. Kentucky Association of Master Contractors.

(3) Nonvoting members shall be elected by a majority of the voting members and shall serve for one (1) year terms which expire on December 31. Nonvoting members are eligible for reappointment by a majority of the voting members.

(4)The Kentucky Contact Center’s board of directors shall establish the method to calculate the cost of service provided by the center.

 (5) The Kentucky Contact Center shall serve all Kentucky counties.

367.4915 Activities exempt from KRS 367.4905 to 367.4917.

The requirements of KRS 367.4905 to 367.4917 shall not apply to the following:

(1) Excavation by an operator on its own easement except where that easement is crossed by another operator’s facilities;

(2) Routine road maintenance or railroad maintenance or repairs;

(3) Tilling of soil for agricultural purposes;

(4) Excavators excavating on private property, using nonmechanized equipment, if there is no encroachment on any operator’s right-of-way or easement;

(5) The opening of a grave in a cemetery;

 (6) A solid waste disposal site which is properly permitted;

 (7) Coal mining operations which are currently regulated under KRS Chapter 350;

 (8) A utility operator or utility operator subcontractor performing emergency work as defined in KRS 367.4903;

(9) Leak migration testing using metal probes inserted by hand by an authorized representative of the operator; or

(10) Any nonintrusive excavating performed by an operator or his subcontractor to locate the operator’s underground facilities in response to a notice of excavation from the notification center, if all reasonable precautions have been taken to protect the underground facilities. 

367.4917 Penalties — Payment and apportionment of fines — Enforcement by Public Service Commission — Administrative regulations.

(1) An excavator who fails to comply with any provision of KRS 367.4911, or an operator who fails to comply with any provision of KRS 367.4909 may be subject to a civil penaltyof 

two hundredfifty dollars ($250) for the first violation, no more than one thousand dollars ($1,000) for the second violation and no more than three thousand dollars ($3,000) for the third and any subsequent violation. A violation shall be considered a first violation under this subsection if more than three hundred sixty-five (365) days have elapsed since the last incident attributable to a person in violation of Section 2 or Section 3 of this Act. If a person commits a violation in the course and scope of employment, the penalties shall be imposed on the employer.

(2) A protection notification center that fails to comply with any provision of KRS 367.4913 shall be subject to a civil penalty of one thousand dollars ($1,000) for each violation.

(3) A person that knowingly provides false notice to a utility notification center of an emergency as defined in KRS 367.4903 shall be subject to a civil penalty of one thousand dollars ($1,000) for each violation.

(4) Any person who violates any provision of the Underground Facility Damage Prevention Act of 1994, KRS 367.4901 to 367.4917, that involves damage to a facility containing any flammable, toxic, corrosive, or hazardous material or results in the release of any flammable, toxic, corrosive, or hazardous material shall be subject to a civil penalty, in addition to the civil penalty in subsection (1) of this section,not to exceed one thousand dollars ($1,000) for each violation. The penalties of this subsection are not in conflict with and are in addition to civil damages for personal injury or property damage.

(5) (a) Except as provided in subsection (6) of this section, all civil penalties recovered for a violation of this section shall be paid to the general fund of the state, county, city, or fire protection agency which issued the citation.

(b) In the event that more than one (1) government agency was involved, the court shall direct an apportionment of the civil penalties.

(c) Failure to comply with the provisions of the Underground Facility Damage Prevention Act of 1994, KRS 367.4901 to 367.4917, may be determined at the conclusion of an investigation and shall be based on evidence available to state, county, or city officials, law enforcement, or fire protection agencies which issue the citation.

(6) The commission shall have statewide authority to enforce and assess civil penalties provided for in this section and to seek injunctive relief for any violation that results in damage to an underground facility used to transport gas or hazardous liquid subject to the federal pipeline safety laws, 49 U.S.C. secs. 60101 et seq. Once the commission initiates an investigation or undertakes an enforcement action against a person for an alleged violation, no other state, county, city, or fire protection agency shall initiate or continue any enforcement action against the person for the same alleged violation. Any action to recover penalties assessed pursuant to this subsection shall be brought in the Franklin Circuit Court. All penalties recovered by the commission shall be paid into the State Treasury and credited to the account of the commission.

(7) The commission shall make available on its Web site a written agreement form for an operator and an excavator to agree to a date or series of dates by which time the locate request must be completed if different from those dates established in Section 2 of this Act. The form shall contain but is not limited to the parties’ names, the locate request number, the date requested, and the location. The parties shall make the executed agreement form available upon request of the commission.

(8) The commission may promulgate administrative regulations in accordance with KRS Chapter 13A to enforce the Underground Facility Damage Prevention Act of 1994. The commission shall exercise its authority under the Underground Facility Damage Prevention Act of 1994 in accordance with the rules and procedures set forth in KRS Chapter 278 and all applicable administrative regulations promulgated by the commission.