Session of 2000
By Committee on Governmental Organization and Elections

  9             AN  ACT amending the Kansas underground utility damage prevention
10             act; amending K.S.A. 1999 Supp. 66-1802, 66-1805, 66-1811 and 66-
11             1812 and repealing the existing section.
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1999 Supp. 66-1802 is hereby amended to read as
15       follows: 66-1802. As used in this act:
16             (a) ``Damage'' means any impact or contact with an underground fa-
17       cility, its appurtenances or its protective coating, or any weakening of the
18       support for the facility or protective housing which requires repair.
19             (b) ``Emergency'' means any condition constituting a clear and pres-
20       ent danger to life, health or property, or a customer service outage.
21             (c) ``Excavation'' means any operation in which earth, rock or other
22       material below the surface is moved or otherwise displaced by any means,
23       except tilling the soil, or railroad or road and ditch maintenance that does
24       not change the existing railroad grade, road grade and/or ditch flowline,
25       or operations related to exploration and production of crude oil or natural
26       gas, or both.
27             (d) ``Excavator'' means any person who engages directly in excavation
28       activities within the state of Kansas, but shall not include any occupant
29       of a dwelling who: (1) Uses such dwelling as a primary residence; and (2)
30       excavates on the premises of such dwelling.
31             (e) ``Facility'' means any underground line, fiber-optic cable, system
32       or structure used for gathering, storing, conveying, transmitting or dis-
33       tributing gas, electricity, communication, cable television service, internet
34       service, crude oil, refined or processed petroleum, petroleum products
35       or hazardous liquids;. ``Facility'' shall not include, any production petro-
36       leum lead lines, salt water disposal lines or injection lines, which are
37       located on unplatted land or outside the corporate limits of any city.
38             (f) ``Marking'' means the use of stakes, paint or other clearly identi-
39       fiable materials to show the field location of underground facilities, in
40       accordance with the resolution adopted August, 1984, by the utility lo-
41       cation coordination council of the American public work association.
42             (g) ``Municipality'' means any city, county, municipal corporation,
43       public district or public authority located in whole or in part within this


  1       state which provides firefighting, law enforcement, ambulance, emer-
  2       gency medical or other emergency services.
  3             (h) ``Notification center'' means the statewide communication system
  4       operated by an organization which has as one of its purposes to receive
  5       notification of planned excavation in the state from excavators and to
  6       disseminate such notification of planned excavation to operators who are
  7       members and participants.
  8             (i) ``Operator'' means any person who owns or operates an under-
  9       ground facility, except for. ``Operator'' does not include any person who
10       is the owner of real property wherein is located underground facilities
11       for the purpose of furnishing services or materials only to such person or
12       occupants of such property. With respect to underground facilities used
13       for the purpose of furnishing water or gas only to persons owning or
14       occupying the real property where the facilities are located, ``operator''
15       means the operator of the distribution system connected to the facilities
16       if the facilities cross real property owned by any person other than the
17       owner of the real property to which the water or gas is delivered.
18             (j) ``Preengineered project'' means a public project or a project which
19       is approved by a public agency wherein the public agency responsible for
20       the project, as part of its engineering and contract procedures, holds a
21       meeting prior to the commencement of any construction work on such
22       project in which all persons, determined by the public agency to have
23       underground facilities located within the construction area of the project,
24       are invited to attend and given an opportunity to verify or inform the
25       public agency of the location of their underground facilities, if any, within
26       the construction area and where the location of all known and under-
27       ground facilities are duly located or noted on the engineering drawing as
28       specifications for the project.
29             (k) ``Permitted project'' means a project where a permit for the work
30       to be performed must be issued by a city, county, state or federal agency
31       and, as a prerequisite to receiving such permit, the applicant must locate
32       all underground facilities in the area of the work and in the vicinity of the
33       excavation and notify each owner of such underground facilities.
34             (l) ``Person'' means any individual, partnership, corporation, associa-
35       tion, franchise holder, state, city, county or any governmental subdivision
36       or instrumentality of a state and its employees, agents or legal
37       representatives.
38             (m) ``Tolerance zone'' means the area within 24 inches of the outside
39       dimensions in all horizontal directions of an underground facility.
40             (n) ``Working day'' means every day, except Saturday, Sunday or a
41       legally proclaimed local, state or federal holiday.
42             Sec.  2. K.S.A. 1999 Supp. 66-1805 is hereby amended to read as
43       follows: 66-1805. (a) This act recognizes the value of and encourages and


  1       authorizes the establishment of a single notification center. Each operator
  2       who, including the state or any subdivision or instrumentality of the state,
  3       which has an underground facility shall become a member of the notifi-
  4       cation center.
  5             (b) Upon the establishment of a notification center in compliance
  6       with this act, notification, as required by K.S.A. 1999 Supp. 66-1804, and
  7       amendments thereto, to operators shall be given by notifying the notifi-
  8       cation center by telephone at the toll free number. The content of such
  9       notification shall be as required by K.S.A. 1999 Supp. 66-1804, and
10       amendments thereto.
11             (c) Each operator who has an underground facility within the state
12       shall be afforded the opportunity to become a member of the notification
13       center on the same terms as the original members.
14             (d) A suitable record shall be maintained by the notification center
15       to document the receipt of notices from excavators as required by this
16       act.
17             Sec.  3. K.S.A. 1999 Supp. 66-1811 is hereby amended to read as
18       follows: 66-1811. (a) In a civil action in a court of this state when it is
19       shown by competent evidence that personal injury, death or other dam-
20       ages, including damage to any underground facilities, occurred as a result
21       of a violation of this act, there shall be a rebuttable presumption of neg-
22       ligence on the part of the violator.
23             (b) The provisions of subsection (a) shall not apply in a civil action
24       for damages to underground facilities if the operator whose underground
25       facilities are damaged fails to participate in the notification center.
26             (c) In no event shall the excavator be responsible for any damage to
27       underground facilities if such damage was caused by the failure of the
28       operator to correctly and properly mark the location of the tolerance zone
29       of the damaged facility.
30             (d) Nothing in this act is intended to limit or modify the provisions
31       of:
32             (1) K.S.A. 60-258a, and amendments thereto; or
33             (2) the national electrical safety code, which would otherwise be
34       applicable.
35             Sec.  4. K.S.A. 1999 Supp. 66-1812 is hereby amended to read as
36       follows: 66-1812. (a) In addition to any other remedy provided by law,
37       any person to whom this act applies, who violates any of the provisions
38       contained in this act, shall be subject to civil penalties and injunctive relief
39       as set out in K.S.A. 66-1,151, and amendments thereto.
40             (b) In addition to any other remedy provided by law, violation of this
41       act by an excavator shall render the excavator liable to the aggrieved
42       operator for the payment of a civil penalty, recoverable in an individual
43       action, an amount equal to the operator's actual damages or $2,000 for


  1       each day of violation, whichever is greater. In such action, the operator
  2       may recover costs and reasonable attorney fees.
  3             (c) In addition to any other remedy provided by law, violation of this
  4       act by an operator shall render the operator liable to the aggrieved ex-
  5       cavator for the payment of a civil penalty, recoverable in an individual
  6       action, an amount equal to the excavator's actual damages or $500 for
  7       each day of violation, whichever is greater. In such action, the excavator
  8       may recover costs and reasonable attorney fees. 
  9       Sec.  5. K.S.A. 1999 Supp. 66-1802, 66-1805, 66-1811 and 66-1812
10       are hereby repealed.
11        Sec.  6. This act shall take effect and be in force from and after its
12       publication in the statute book.