2016 North Dakota Century Code Title 49 Public Utilities Chapter 49-23 One-Call Excavation Notice System
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CHAPTER 49-23
ONE-CALL EXCAVATION NOTICE SYSTEM
49-23-01. 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; or
c. 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' Day,
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 showing the
approximate horizontal location, including all lines, line direction, intersections, tees,
and lateral facilities.
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
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entity. The department of transportation is considered an operator for the department'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.
"Tangible marking materials" means any material perceptible by touch used to mark
the location of an underground facility, including flags, stakes, poles, or other materials
inserted into or affixed to the ground. The term does not include paint, chalk, or other
liquid ink-based materials applied to the ground.
"Underground facility" means an underground line, pipeline, cable, facility, system, and
its appurtenances used to produce, store, convey, gather, transmit, or distribute
communications, data, electricity, power, television signals, heat, gas, oil, petroleum
products, carbon dioxide, 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.
"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.
"Water" includes potable water, wastewater, and storm water.
49-23-02. Notice to excavators and underground facility operators.
A local governmental 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; and
3. 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 the operator's
own facilities, may not be charged as an excavator.
3. 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; and
e. 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 organizational meeting
by publication in qualified legal newspapers and in appropriate trade journals and by
written notice to all appropriate trade associations.
a. The nonprofit corporation must be incorporated by seventeen initial incorporators,
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
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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 must represent 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.
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 a
competitive 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.
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.
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.
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;
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Whether the use of explosives is anticipated and any other information as may be
required by the notification center; and
g. 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;
(3) An identifiable roadway or roadway intersection; or
(4) A specific quarter section by section number, range, township, and county.
In this case, the location shall be further described by coordinates measured
in feet from the nearest one-fourth corner or section corner.
h. If the location of the excavation is too large or complex to be clearly and
adequately identified by description in the location request, the excavator shall
provide additional location information by one or more of the following means:
white marking, project staking, geographic information system shape file, detailed
drawing, map, or other appropriate means. An excavator may not be required to
provide additional location information if the excavator plans a meeting with the
affected operators at the location of the excavation before beginning any
excavation, or if the notice given under this section includes a specific street
address or reference to a platted lot number of record of the location of the
excavation.
i. A request for location is limited to the area to be excavated during the
twenty-one-day period following the location request.
j. An excavator may begin excavation in a location if the location period has passed
without notification of a requested extension or prior to the expiration of the
location period if the excavator has received notice that all facilities have been
located or cleared.
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.
b. 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.
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 an underground
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 excavation operations
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.
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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 twenty-one days, or any
extension of that period, after the planned excavation date unless the excavator
has made previous arrangements with the operators affected.
h. If excavation has not occurred within the initial twenty-one days of the locate, the
excavator shall request that the facility be relocated before excavating unless
other arrangements have been made with the underground facility owner. Upon
the third locate request at the same excavation site where no excavation has
occurred after the initial two locates, the excavator is responsible for reasonable
costs associated with relocating facilities in that location.
i. If a relocate request is made for an area which includes areas where excavation
has been completed, a request for relocate must be modified from the original
locate request to reflect only the area to be excavated during each subsequent
twenty-one-day period, otherwise the excavator is responsible for reasonable
costs associated with relocating facilities in the location.
j. 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.
k. 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 a method 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.
l. An underground facility owner shall make all new facilities locatable.
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 minimize interference 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.
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6.
Assume ownership of materials used to mark the facility, use reasonable efforts to
maintain markings during excavation, and remove all tangible marking materials used
to mark the facility upon completion of the excavation.
Assume the cost of excavation to expose the facility unless otherwise indicated by
owner of facility.
Conduct the excavation in a careful and prudent manner.
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 the damage
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 be
performed by the operator or by qualified personnel authorized by the operator.
c. 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 the state 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.
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