49-23 One-Call Excavation Notice System

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CHAPTER 49-23ONE-CALL EXCAVATION NOTICE SYSTEM49-23-01. Definitions. As used in this chapter, unless the context otherwise requires:1."Abandoned" means no longer in service and physically disconnected from a portion of the facility or from any other facility that is in use or still carries services.2."Board" means the board of directors of the nonprofit corporation governing the notification center under section 49-23-03.3."Careful and prudent manner" means excavating within twenty-four inches [60.96 centimeters] of the outer edges of an underground facility located manually and marked by the owner or operator by stakes, paint, or other customary manner, and supporting and protecting the uncovered facility.4."Damage" means:a.Substantial weakening of structural or lateral support of an underground facility;b.Penetration, impairment, or destruction of any underground protective coating, housing, or other protective device; orc.Impact with or the partial or complete severance of an underground facility to the extent that the facility operator determines that repairs are required.5."Emergency" means a sudden, unexpected occurrence, involving a clear and imminent danger, and demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services.6."Emergency responder" means a fire department, a law enforcement officer, or other emergency rescue service.7."Excavation" means any operation in which earth, rock, or other materials in or below the ground is moved or otherwise displaced by means of hand or power tools, power equipment, or explosives and includes grading, trenching, digging, ditching, drilling, augering, tunneling, boring, scraping, and cable or pipe plowing and driving. The term does not include:a.Opening a grave in a cemetery.b.Plowing, cultivating, planting, harvesting, and similar operations in connection with agricultural activities, unless any of these activities disturbs the soil to a depth of eighteen inches [45.72 centimeters] or more.c.Gardening and landscaping unless it disturbs the soil to a depth of twelve inches [30.48 centimeters] or more.d.Normal maintenance of roads and streets if the maintenance does not change the original grade and does not involve the road ditch.e.Normal repair and maintenance of track and track bed by a railroad on its own right of way.8."Excavator" means a person who conducts excavation.9."Holiday" means New Year's Day, Martin Luther King Day, Presidents' Day, Good Friday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans'Page No. 1Day, Thanksgiving Day, and Christmas Day. When a holiday falls on a Saturday, it is observed on the preceding Friday as if the Friday were the holiday, and when a holiday falls on a Sunday, it is observed on the following Monday as if the Monday were the actual holiday.10."Local governmental unit" means a county, township, or city.11."Locate" means an operator's markings of an underground facility.12."Nonprofit corporation" means a corporation established under chapter 10-33.13."Notification center" means a center that receives notice from an excavator of planned excavation or any other request for location and transmits this notice to a participating operator.14."Operator" means a person who owns or operates an underground facility, including a master meter operator with underground facilities, or a state or local governmental entity.The department of transportation is considered an operator for thedepartment's facilities buried on the department's rights of way. A person is not considered an operator solely because the person is an owner or tenant of real property where underground facilities are located if the underground facilities are used exclusively to furnish services or commodities on that property.15."Underground facility" means an underground line, facility, system, and its appurtenancesusedtoproduce,store,convey,transmit,ordistributecommunications, data, electricity, power, television signals, heat, gas, oil, petroleum products, water, steam, sewage, hazardous liquids, and other similar substances. Privately owned and operated underground facilities which do not extend beyond the boundary of the private property are excluded.16."Unexpected occurrence" includes a fire, flood, earthquake or other soil or geologic movement, riot, accident, damage to a subsurface installation requiring immediate repair, or sabotage.17."Water" includes potable water, wastewater, and storm water.49-23-02.Notice to excavators and underground facility operators.A localgovernmental entity that issues permits for an activity involving excavation shall display an excavator's and operator's notice at the location where permits are obtained. An excavator's and operator's notice and a copy of this chapter must be furnished to each person obtaining a permit for excavation. The notification center shall prescribe an excavator's and operator's notice. The notice must inform excavators and operators of their obligation to comply with this chapter. The center shall furnish to local governmental units:1.A copy of the notice and this chapter;2.A copy of the display required under this section; and3.The telephone number and mailing address of the notification center.49-23-03. Notification center - Participation - Establishment.1.An operator shall participate in and share in the costs of the statewide notification center operated by a vendor selected under this section.2.An excavator licensed under this chapter shall participate in and share in the costs of a statewide notification center on a per-call basis.An operator, installing theoperator's own facilities, may not be charged as an excavator.Page No. 23.An operator shall participate in and share the costs of the one-call excavation notice system by:a.Submitting the information required by the notification center to allow the center to notify the operator of excavation activity;b.Updating the information provided to the notification center on a timely basis;c.Installing and paying for equipment reasonably requested by the notification center to facilitate receipt of notice of excavation from the center;d.Paying the costs charged by the notification center on a timely basis; ande.Receiving and responding to excavation notices, including emergency notices.4.A nonprofit corporation shall govern the notification center. The initial incorporators of the corporation may solicit bids for any services provided for the operation of the center.The corporation shall provide advance notice of the first organizationalmeeting by publication in qualified legal newspapers and in appropriate trade journals and by written notice to all appropriate trade associations.a.Thenonprofitcorporationmustbeincorporatedbyseventeeninitialincorporators, with one member representing the house of representatives and one member representing the senate appointed by the legislative management, one member representing telecommunications companies offering local exchange service to fewer than fifty thousand subscribers, one member representing telecommunications companies offering local exchange service to fifty thousand or more subscribers, one member representing rural water systems, one member representing rural electric cooperatives, one member representing investor-owned electric utilities, one member representing investor-owned natural gas utilities, one member representing cable television systems, one member representing cities with a population of fewer than five thousand, one member representing cities with a population of at least five thousand, one member representing counties, one member representing underground interstate carriers of gas, one member representing interstate carriers of petroleum, one member representing interstate carriers of telecommunications services, one member representing contractors who perform excavation services, and one member representing the production sector of the American petroleum institute.The initial incorporators mustrepresent and be designated by operators, excavators, and other persons eligible to participate in the center. The legislative members are entitled to the same compensation and expenses as provided for members of committees of the legislative management. The legislative council shall pay the compensation for the legislative members.b.The initial incorporators shall establish, before August 1, 1996, a board of directors of the nonprofit corporation which consists of eight members representing the participants in the center.The board shall establish acompetitive bidding procedure to select a vendor to provide the notification service, establish a procedure by which members of the center share the costs of the center on a fair, reasonable, and nondiscriminatory basis, and do all other things necessary to implement the purpose of the center. Any agreement between the center and a vendor for the notification service may be modified from time to time by the board, and any agreement shall be reviewed by the board at least once every three years, with an opportunity to receive new bids, if desired, by the board. An operator may submit a bid and be selected to contract to provide the notification center service.Page No. 3c.Members of the board and any of its agents are immune from any liability of any kind based on any acts or omissions in the course of the performance of responsibilities in an official capacity except for bodily injury arising out of accidents caused by or contributed to by the negligence of the board member or agent.d.The board shall aid the state's attorneys of the various counties in the enforcement of this chapter and the prosecution of any violations. The board may institute a civil action for an injunction to enjoin violations of this chapter without proof that anyone suffered actual damages.e.The notification center must be in operation by March 1, 1998.49-23-04. Excavation.1.Except in an emergency, an excavator shall contact the notification center and provide an excavation or location notice at least forty-eight hours before beginning any excavation, excluding Saturdays, Sundays, and holidays, unless otherwise agreed to between the excavator and operator. If an operator determines more time is necessary for location, the operator may request a twenty-four-hour extension of the excavation or location notice by notifying the notification center. The notification center shall notify the excavator of the extension. An excavation begins the first time excavation occurs in an area that was not previously identified by the excavator in an excavation notice. The notice must contain:a.The name, address, and telephone number of the person making the notification;b.The name, address, and telephone number of the excavator;c.The date and time when excavation is scheduled to begin;d.The depth of planned excavation;e.The type and extent of excavation being planned, including whether the excavation involves tunneling or horizontal boring;f.Whether the use of explosives is anticipated and any other information as may be required by the notification center; andg.The location of the excavation by any one or more of the following means:(1)A specific street address;(2)A reference to a platted lot number of record; or(3)A specific quarter section by section number, range, township, and county.In this case, the location shall be further described bycoordinates measured in feet from the nearest one-fourth corner or section corner.2.The notification center shall:a.Provide a toll-free telephone number and assign an inquiry identification number to each excavation notice and retain a record of all excavation notices received for at least six years.Page No. 4b.Immediately transmit the information contained in an excavation notice to every operator that has an underground facility in the area of the proposed excavation.c.Inform the persons giving notice of an intent to engage in an excavation activity the names of participating operators of underground facilities to whom the notice will be given.d.Establish procedures for assuring positive response from the affected operator in all emergency excavation notices.3.a.An operator, within forty-eight hours, or any extension of that period, after receiving an excavation notice from the center, excluding Saturdays, Sundays, and holidays, unless otherwise agreed to between the excavator and operator, shall locate and mark or otherwise provide the approximate horizontal location of the underground facilities of the operator.b.For purposes of this section, the approximate horizontal location of the underground facilities is a strip of land two feet [60.96 centimeters] on either side of the underground facilities.This subdivision does not apply to anunderground facility to convey water.c.When an operator cannot establish the exact location of the underground facility to convey water, the operator shall mark the location as accurately as possible and the excavator may proceed with caution.When excavationoperations approach the estimated location of the underground facility to convey water, the exact location of the facility must be determined by safe and acceptable means. The uncovered facility must be supported and protected to prevent damage.d.Markers used to designate the approximate location of underground facilities must follow the current color code standard used by the American public works association.e.If the operator cannot complete marking of the excavation area before the excavation commencement time stated in the excavation notice, the operator shall promptly contact the excavator.f.After facilities are located by an operator, an excavator shall notify the notification center if:(1)The excavator postpones the excavation commencement time stated in the excavation notice by more than forty-eight hours, or any extension of that period, or cancels the excavation;(2)The markings have been obliterated or obscured;(3)Weather conditions have impeded visibility of the markings;(4)The site shows evidence of recent excavation; or(5)The excavator has other reason to believe the markings are incorrect or missing.g.An excavator may not use a location more than ten days, or any extension of that period, after the planned excavation date unless the excavator has made previous arrangements with the operators affected.Page No. 5h.If in the course of excavation the excavator is unable to locate the underground facility or discovers that the operator of the underground facility has incorrectly located the underground facility, the excavator shall promptly notify the operator or, if unknown, the one-call notification center.i.A facility owner, excavator, or other person may not present or presume that an underground facility is abandoned, or treat an underground facility as abandoned, unless the facility has been verified as abandoned by reference to installation records or by testing.The notification center shall establish amethod of providing personnel from a facility owner qualified to safely inspect and verify whether a facility is abandoned or inactive if necessary. An inactive facility must be considered active for purposes of this section.4.If an excavation is being made in a time of emergency, all reasonable precautions must be taken to protect the underground facilities. In an emergency, the excavator shall give notification in compliance with this chapter, as soon as practical, that an emergency exists. As soon as practical, each operator shall provide all location information that is reasonably available to the excavator.49-23-05.Precautions to avoid damage.To avoid damage to and minimizeinterference with underground facilities in and near the construction area, an excavator shall:1.Maintain a clearance between an underground facility and the cutting edge or point of any mechanized equipment, considering the known limit of control of the cutting edge or point to avoid damage to the facility.2.Provide support in a manner approved by the operator for underground facilities in and near the construction area, including backfill operations to protect the facilities. Backfill must be of a material equal to or better in both quality and quantity to the existing backfill.3.Assume ownership of materials used to mark the facility and when possible remove all tangible marking materials used to mark the facility.4.Assume the cost of excavation to expose the facility unless otherwise indicated by owner of facility.5.Conduct the excavation in a careful and prudent manner.6.Properly manage spoil material to prevent shifting or falling material that could damage belowground facilities.49-23-06. Damage to facilities - Penalty.1.a.If any damage occurs to an underground facility or its protective covering, the excavator shall notify the operator as soon as reasonably possible. When the operator receives a damage notice, the operator shall dispatch, as soon as reasonably possible, personnel to the damage area to investigate.If thedamage endangers life, health, or property, the excavator responsible for the work shall take immediate action to protect the public and property and to minimize the hazard until arrival of the operator's personnel or until emergency responders have arrived and taken charge of the damaged area.b.An excavator shall delay backfilling in the immediate area of the damaged underground facilities until the damage has been investigated by the operator, unless the operator authorizes otherwise.The repair of damage must beperformed by the operator or by qualified personnel authorized by the operator.Page No. 6c.An excavator who knowingly damages an underground facility and who does not notify the operator as soon as reasonably possible or who backfills in violation of subdivision b is guilty of a class A misdemeanor.2.a.If an excavator fails to comply with this chapter or damages an underground facility, the excavator is liable for all damages caused by the failure to comply with this chapter and for all damages to the facilities and must reimburse the operator for the cost of repair and restoration, loss of product, and interruption of service occurring because of the damage or injury to the facilities, together with reasonable costs and expenses of suit, including reasonable attorney's fees.b.Reimbursement to the operator under this subsection is not required if the damage to the underground facility was caused by the sole negligence of the operator or the operator failed to comply with sections 49-23-03 and 49-23-04.49-23-07. Effect on local ordinances. A person with a permit for excavation from thestate or a local governmental unit is subject to this chapter. This chapter does not affect or impair local ordinances, charters, or other provisions of law requiring permits to be obtained before excavating.Page No. 7Document Outlinechapter 49-23 one-call excavation notice system

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49-23 One-Call Excavation Notice System