Brief ⁽¹⁾

HB 2521 would amend and supplement, effective January 1, 2002, various provisions of the Kansas Underground Utility Damage Prevention Act (One-Call law).

Existing Law (KSA 2000 Supp. 66-1801 et seq.)

The Kansas Underground Utility Damage Prevention Act (One-Call law) provides for the protection of buried utilities from damage associated with excavation activity near the facilities. It also provides for the safety of the excavator and general public by minimizing the chances of potentially deadly accidents with buried natural gas and electric lines. The primary goal of the law is to establish minimum requirements for excavators and for operators of buried utilities. These requirements set standard protocols for communication between excavators and utility operators while protecting the rights of both parties. The Act requires excavators to notify the utilities of the site in which they plan to dig. It also requires the utilities to provide marks on the surface of the ground that indicate the approximate location of their facilities. The utilities must provide these marks within two business days of receiving notification while the excavators must wait two business days before beginning excavation. (This explanation was extracted from Review of the Kansas Underground Utility Damage Prevention Act, prepared by the Kansas Corporation Commission, January 8, 2001.)

Amendments to the Law

The following provisions (not an exhaustive list) are proposed amendments in HB 2521:

• •Required Participating Facilities (Utilities). Under existing law, the facilities that are required to participate in One-Call include 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. The bill would add utilities transporting sewage, potable water, or other liquids. By adopting and filing a resolution with the Kansas Corporation Commission, a rural water district would be allowed to opt out of the One-Call system prior to January 1, 2002, and could subsequently opt in. However, if it elects to opt in, it must stay in (New Section 10).
• 
  
  
• •Facility Exemptions. Under existing law, facilities exempted from participation include: production petroleum lead lines, salt water disposal lines, or injection lines, which are located on unplatted land or outside corporate limits of the city. The bill would exempt from participation: storm water sewers installed before January 1, 2002; production petroleum lead lines which are used in the production of natural gas and are either located outside a public access right-of-way or, if within the right-of-way, are clearly marked; or other production petroleum lead lines which are located on unplatted land outside corporate limits of the city. (Production petroleum lead lines not meeting those conditions must be members of the One-Call system.) Under certain conditions, facilities used to convey communications or electricity to street lights or traffic control devices or which are used to provide utility service to public rest area facilities also are excluded. Finally, as previously noted, rural water districts may elect to be exempt from the act.
• 
  
  
• •Excavator Notification Requirements. The requirements governing excavator notification are outlined in several different statutes. The bill consolidates these requirements into one section (Section 3), and includes several clarifications to existing law, as well as several new requirements pertaining to, among other items: the contents of the notice of intent to excavate; the procedures to be followed by excavators in marking a proposed excavation site; specific conditions that require "reasonable care," defined in the bill, on the part of an excavator whose intent is to dig in an area in close proximity to an underground facility; and rules and regulations to be promulgated by the Kansas Corporation Commission concerning minimum guidelines for an excavator's use of trenchless excavation techniques.
• 
  
  

A notable policy difference between existing law and the bill is the time line governing the notice of intent. Under existing law, the excavator must serve notice at least two full working days but not more than 10 working days before beginning to dig. The bill would require the notice of intent to be given no later than two full working days ("working day" is defined) but no earlier than 15 calendar days before the digging is to begin. Another notable policy difference between the law and the bill is that, under existing law, excavators are allowed to make repeated locate requests before the work is scheduled to begin. That practice would be prohibited if the bill is enacted.

• •Liability for Damages. Under existing law, a rebuttable presumption of negligence applies to personal injury, death, or other damages, including damages to any underground facilities. However, operators cannot use this defense to try to recover damages from an excavator if the operator elects not to participate in the notification center. The liability of the excavator is removed if the operator has failed to correctly and properly mark the location of the tolerance zone of the damaged facility. Violations of the Act will be subject to civil penalties and injunctive relief. The bill includes similar provisions but removes references to "damage to any underground facilities." The apparent intent is to allow, as a basis for a rebuttable presumption of negligence defense, any damages suffered by excavators as a result of operator noncompliance. If the excavator exercises reasonable care and follows procedures set out in the bill, the excavator will not be liable for damages to an improperly marked facility. As provided for in existing law, violations of the Act would be subject to civil penalties and injunctive relief. In addition, the bill would authorize the Kansas Corporation Commission to adopt through rules and regulations a schedule of fines for common violations.
• 
  
  
• •Administration and Enforcement. Under existing law, the Kansas Corporation Commission is required to administer and enforce the Act. The bill would also require the Commission to adopt rules and regulations to that end.
• 
  
  
• •Requirements for Facility Operators. Under existing law, "operator" is defined as the owner or operator of an underground facility. (This definition does not apply to an owner of property on which the facility is located if the facility is used only to provide services or materials to that person or any occupants of that property.) Existing law makes no distinction in requirements governing different types of facility operators. In contrast, the bill does make that distinction by categorizing operators as either Tier 1 or Tier 2 operators. Tier 1 operators would include all utilities presently required to participate in the One-Call system. Tier 2 operators would include facilities that transport potable water, sewage, or storm sewers (built after January 1, 2002) and are presently not required to participate under existing law but would be required to do if the bill becomes law. (Rural water districts that elect to participate would be Tier 2 operators.)
• 
  
  

Tier 2 operators would have the option of becoming Tier 1 or Tier 2 members of the notification center. They would pay more for Tier 1 membership than for Tier 2 membership but, in exchange for higher membership fees, would receive additional services and protections. Three main differences between a Tier 1 and Tier 2 member are: (1) a Tier 2 member would not be required to mark its facilities at the proposed excavation site provided it lets the excavator know of its intent; (2) a Tier 2 member would not be required to file and maintain an accurate map of its underground facilities or service area; (3) a Tier 2 member would receive calls directly from excavators to locate facilities. (The notification center handles excavators' locate requests for Tier 1 members.)

Although requirements governing Tier 1 and Tier 2 operators would be similar in most respects, the greater flexibility afforded Tier 2 operators stems from the recognition that damaged water and sewer facilities, unlike other types of utility facilities, typically do not result in an immediate danger to life or property. Moreover, the majority of water and sewer facilities are operated by public entities with limited manpower or funds to perform all the facility locate requests required of a Tier 1 operator.

Background

HB 2521 is a product of the Underground Utility Damage Prevention Task Force. This Task Force was established pursuant to 2000 House Resolution 6011. This resolution required the Kansas Corporation Commission to conduct a review and study of the Kansas Underground Utility Damage Prevention Act, administered by the Commission, and use the U.S. Department of Transportation's Common Ground Study (August 1999) as a basis for the review and study. The Commission also was requested to review 14 specific charges dealing with the Act.

Proponents of the introduced version of the bill included: the Chief of Pipeline Safety, the Kansas Corporation Commission, two members of the Task Force, and a contractor. Written testimony in support of the bill was submitted by a spokesperson for Sprint. Opponents included: the Secretary of the Kansas Department of Transportation, a spokesperson for the League of Kansas Municipalities and two spokespersons for the Kansas Independent Oil and Gas Operators. Many amendments proposed by conferees were incorporated into the House Committee's version of the bill.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext.cgi