New Mexico Register / Volume XXXIII, Issue 15 / August 9, 2022
This is an amendment to 18.60.5 NMAC, Sections 7, 8,
12, 13, 15, 16, 17, 19 and 22, effective 8/9/2022.
18.60.5.7 DEFINITIONS: In addition to the definitions in Section 62-14-2
NMSA 1978, 18.60.2.7 NMAC and 18.60.4.7 NMAC, as used in this rule:
[A. access
information means a telephone number, a facsimile number, an email
address, and, if available, a web site address;
B. bid
locate means the marking of underground facilities at the request of a
project owner for the purpose of providing information to persons bidding on a project;
C. design
locate means the marking of
underground facilities at the request of a project owner or project
engineer for the purpose of providing information to persons designing a project;
D. emergency
locate means the marking of underground facilities at the request of a
person for an underground facility owner as soon as practical, ideally within 2
hours for the purpose of an emergency excavation;
E. excavation
locate means the marking of underground facilities for the purpose of
providing information at the request of an excavator planning to commence
excavation for the excavator's project;
F. holiday
means the day New Mexico state government observes New Year's Day, Martin
Luther King, Jr's, Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veteran's Day, Thanksgiving Day, President's Day, and Christmas Day;
G. mechanical
vacuum excavation is deemed an appropriate non-mechanical method of
excavating safely around underground facilities provided that the equipment has
been specifically designed and built for this purpose and is operated in
accordance with practices that provide appropriate levels of worker and public
safety and prevent damage to buried facilities.
H. non-member
UFO means a private underground facility owned by a homeowner and operated
and located on a residential property or not subject to the jurisdiction of the
commission;
I. project
owner or project engineer means
the owner of a project involving excavation or the person designated by the
owner to be in charge of the project involving excavation;
J. road
maintenance means routine grading and resurfacing of the earth and gravel
surface, but not the subbase, of a roadway for the purpose of maintaining the
surface condition of the road and includes recovery of material from a borrow
ditch but does not include road construction or reconstruction and shall entail
moving no more than four inches of earth; road maintenance does not include
street sweeping or road milling and resurfacing as long as the subsurface is
not disturbed;
K. underground
facility operator (UFO) means a person who operates an underground facility;
L. working
day means a 24 hour period excluding weekends and
holidays.]
A. Definitions beginning with “A”: access
information
means a telephone number, a facsimile number, an email address, and, if
available, a web site address;
B. Definitions beginning with “B”: bid
locate
means the marking of underground facilities at the request of a project owner
or
project engineer for the purpose of providing information to persons bidding on
a project;
C. Definitions
beginning with “C”: [RESERVED]
D. Definitions beginning with “D”: design locate means the marking of underground
facilities at the request of a project owner or project engineer for the
purpose of providing information to persons designing a project;
E. Definitions beginning with “E”:
(1) effective
date
excludes the day that advance notice is provided as may be required in this
rule, whereby the computed date shall begin at 12:01 a.m. after two full
working days;
(2) emergency locate means the marking of underground facilities at the
request of a person for an underground facility owner as soon as practical,
ideally within 2 hours for the purpose of an emergency excavation;
(3) excavation
locate means the marking of underground facilities for the purpose of
providing information at the request of an excavator planning to commence
excavation for the excavator's project;
F. Definitions beginning with “F”: [RESERVED]
G. Definitions beginning with “G”: [RESERVED]
H. Definitions beginning with “H”: holiday means the day New
Mexico state government observes New Year's Day, Martin Luther King, Jr's,
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's
Day, Thanksgiving Day, President's Day, and Christmas Day;
I. Definitions beginning with “I”: [RESERVED]
J. Definitions beginning with “J”: [RESERVED]
K. Definitions beginning with “K”: [RESERVED]
L. Definitions beginning with “L”: [RESERVED]
M. Definitions beginning with “M”: mechanical
vacuum excavation is deemed an appropriate non-mechanical method of
excavating safely around underground facilities provided that the equipment has
been specifically designed and built for this purpose and is operated in
accordance with practices that provide appropriate levels of worker and public
safety and prevent damage to buried facilities;
N. Definitions beginning with “N”: non-member
UFO
means a private underground facility owned by a homeowner and operated and
located on a residential property or not subject to the jurisdiction of the commission;
O. Definitions beginning with “O”: [RESERVED]
P. Definitions beginning with “P”:
(1) project engineer means the person
designated by the owner to be in responsible charge of the project involving
excavation, including the design thereof, and who is licensed in accordance
with Section 61-23 NMSA;
(2) project owner means the owner of a project involving excavation;
Q. Definitions beginning with “Q”: [RESERVED]
R. Definitions beginning with “R”: road
maintenance means
routine grading and resurfacing of the earth and gravel surface, but not the
subbase, of a roadway for the purpose of maintaining the surface condition of
the road and includes recovery of material from a borrow ditch but does not
include road construction or reconstruction and shall entail moving no more
than four inches of earth; road maintenance does not include street sweeping or
road milling and resurfacing as long as the subsurface is not disturbed;
S. Definitions beginning with “S”: [RESERVED]
T. Definitions beginning with “T”: [RESERVED]
U. Definitions beginning with “U”: underground
facility operator (UFO) means a person who operates an
underground facility;
V. Definitions beginning with “V”: [RESERVED]
W. Definitions beginning with “W”: working
day
means a full business day excluding weekends and holidays;
X. Definitions beginning with “X”: [RESERVED]
Y. Definitions beginning with “Y”: [RESERVED]
Z. Definitions beginning with “Z”: [RESERVED]
[18.60.5.7 NMAC - Rp,
18.60.5.7 NMAC, 1/15/2019; A 8/9/2022]
18.60.5.8 RESPONSIBILITIES
OF ONE-CALL NOTIFICATION SYSTEMS: A
one-call notification system shall:
A. provide
toll-free access;
B. provide to the
commission quarterly the name, contact person, and access information for each
member of the one-call notification system;
C. notify the
commission of the service area in which the one-call notification system operates;
D. have a written
coordination agreement with other one-call notification systems operating in New Mexico;
E. keep a record of
all locate requests, tickets, and clears for five years and make such records
available to the commission upon request;
F. provide monthly
reports to the commission, no later than the tenth of each month, with
the following information:
(1) average
wait time for answered calls for the previous month;
(2) number
of calls received for the previous month;
(3) number
of tickets generated for the previous month;
(4) number
of requests by type (regular, priority, emergency) for the previous month.
G. report any
changes in access information to the commission on or before the date the
information will change;
H. establish a
registry of non-member UFOs that voluntarily provide their contact and
underground facility information for excavation purposes;
I. establish a
positive response registry system; and
J. inform any
person who calls with a complaint that [he or she] they may file a complaint with the
commission's pipeline safety bureau, and provide the commission's pipeline
safety bureau access information, if the one-call system is unable to
satisfactorily resolve the matter.
K. processing
locate requests;
(1) A
one-call notification system may hold a locate request in suspension until it
is complete. The one-call notification
system shall contact an excavator, project owner, or project engineer
within three hours to request any missing information that prevents the
one-call notification system or non-member UFO from processing the request.
(2) A
one-call notification system shall process all complete locate requests within
three hours of receipt. A one-call
notification system shall deem locate requests received on a weekend or
holiday, or after 4:00 p.m. on a working day, to have been received at 7:00
a.m. on the next working day and shall deem locate requests received before
7:00 a.m. on a working day to have been received at 7:00 a.m. on that working
day.
(3) Upon
receipt of a complete conference or locate request, a one-call notification
system shall issue a ticket with a unique number to the requesting person as confirmation, and shall send a ticket to all members of the
system that have underground facilities in the excavation area, or notify the
members by telephone. A ticket shall
become effective at the date and time a one-call notification system issues a
ticket number; if the ticket is for a conference, the ticket shall be marked
"wide area conference," "bid conference," or "design
conference," as appropriate.
(4) Any
person may contact the one-call notification system and request confirmation of
damage reports, conferences, and locate requests.
[18.60.5.8 NMAC -
Rp, 18.60.5.8 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.12 DESIGN
AND BID LOCATE REQUESTS: A project
owner or project engineer shall request information regarding the location of
underground facilities for design projects or bids in accordance with either
Subsection A or B of this section, but may not switch
methods once having made an election unless the
existing utilities cannot be located by the UFO(s) in accordance with the
requirements of applicable laws.
A. Physical locates:
(1) A
project owner or project engineer may request a design or bid locate from
one-call notification systems and non-member UFOs.
(2) The
one-call notification system and non-member UFOs for the intended excavation
area shall issue a ticket marked "bid locate" or "design
locate" as appropriate.
(3) UFOs
shall physically mark or clear the location of underground facilities on
the site through a positive response system within two full
working days from the date of the ticket.
(4) If one or more underground
facilities have not been marked and positive response has not been provided, a project
owner or project engineer shall call the one-call notification system for
verification that advance notice was transmitted to the UFO and to provide
notice that the underground facilities have not been located or cleared via a
warning locate request. UFOs shall promptly respond to warning locate requests,
ideally within two hours.
[(4)] (5) Designers or bidders, as appropriate, shall
capture data from the site within 10 working days from the end of the two day marking period.
[(5)] (6) A project owner or project engineer shall not
request relocates or time extensions for a design or bid locate.
B. Conferences:
(1) A
project owner or project engineer may request a design or bid conference a
minimum of two working days prior to conference from the one-call notification
system and non-member UFOs for the intended excavation area and provide the
proposed date, time, and location for the conference.
(2) A
UFO shall contact the project owner or project engineer within two working days
of the issuance of the conference ticket and confirm the proposed conference
schedule, and if necessary, make arrangements to
reschedule the conference not to exceed five working days from the proposed
conference schedule on the conference ticket.
A UFO shall be physically represented at the scheduled design or bid
conference.
(3) The
one-call notification system for the intended excavation area shall process the
request as provided in Subsection K of 18.60.5.8 NMAC.
(4) UFOs
shall arrange to provide information to designers or bidders within a
reasonable time following the conference, but not to exceed 10 working days.
(5) A
project owner or project engineer and UFOs shall continue with utility
coordination until the design is complete or bid for the project has been
awarded and an excavator requests an excavation locate.
[18.60.5.12 NMAC -
Rp, 18.60.5.12 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.13 MARKING
EXCAVATION SITES:
A. Excavators: As provided under Subsection B of 18.60.5.10
NMAC, excavators shall mark all proposed excavation sites in accordance with
American public works association (APWA) standards to improve communication
between the excavator and UFO. In
assessing administrative penalties for violation of the Excavation Damage to
Pipelines and Underground Utility Lines Law, Section 62-14-1 et seq. NMSA 1978 and this rule, the
commission may consider whether and how well an excavator marked a proposed
excavation site. Pre-marking a site in
white indicates the actual excavation site (not limits of construction) and,
therefore, will supersede marking instructions provided on locate requests and
be used to determine alleged violations during staff investigations. When an excavator fails to pre-mark the
actual excavation site, UFOs shall mark per the spotting instructions provided
on the locate request and register a positive response indicating the site was
not pre-marked.
B. UFOs:
(1) A
UFO shall mark underground facilities for excavation purposes in accordance
with the APWA standards.
(2) A
UFO shall locate and mark its underground facilities within two full
working days from the effective date of the ticket in accordance with
Subsection A of 62-14-5 NMSA 1978.
(3) If
a UFO determines it does not have underground facilities within the proposed limits of
the excavation site, a UFO shall provide positive response to the one-call
notification's positive response registry system and may write
"clear" or "no underground facilities" and the UFO's name
at the site in the appropriate color.
(4) The
locate markings shall be valid for 15 working days from the end of the [two day marking] advance notice
period. For the
purpose of excavation, a working day begins on the work to begin date
and time stamped on the ticket and ends 15 working days from such date and
time.
(5) A
UFO shall provide appropriate positive response to the one-call notification's
positive response registry system for all advance notifications, including wide
area, design, bid, standard, and road maintenance locate requests or
conferences.
(6) If
a UFO fails to mark its underground facility in accordance with the requirements
of applicable laws, the UFO may be liable to the excavator, project owner,
and project engineer in accordance with Subsection C of 62-14-5 NMSA 1978.
[18.60.5.13 NMAC -
Rp, 18.60.5.13 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.15 EXCAVATION
PROCEDURES:
A. Pre-excavation: Before excavating, an excavator shall
determine whether all underground facilities have been marked.
(1) If
all underground facilities have been marked or cleared through a positive
response system and the [two working day] advance
notice marking period has expired, the excavator may begin excavating.
(2) If
one or more underground facilities have not been marked and positive response
has not been provided, an excavator shall, prior to commencing excavation, call
the one-call notification system for verification that advance notice was
transmitted to the UFO and to provide notice that the underground facilities
have not been located or cleared via a warning locate request. UFOs shall promptly respond to warning locate
requests ideally within two hours.
B. Excavation:
(1) If,
while excavating, an excavator observes evidence that an unmarked underground
facility may exist, the excavator shall, before excavating in the immediate
area of such evidence:
(a) make
a reasonable effort to identify and contact the UFO and wait until the UFO
marks or clears the immediate area of the evidence; the UFO shall mark or clear
the area within two hours of contact or as expeditiously as possible if the
excavation site is in a rural area;
(b) expose
the underground facility by non-mechanical means or mechanical vacuum
excavation methods.
(2) If
excavation activity encroaches within 18 inches either side of a marking made
by a UFO, an excavator shall, prior to excavating, expose the underground
facility by non-mechanical means or mechanical vacuum excavation methods.
(3) If
the exact subsurface location of the underground facility or utility cannot be
determined by non-mechanical means or mechanical vacuum excavation methods as
required in [Subparagraph (a) of Paragraph (1) and Paragraph (2) of this
Subsection above] Subparagraph (a) of Paragraph (1) and (2) of
Subsection B of 18.60.5.15 NMAC, the excavator shall contact the UFO
directly and UFO shall work with the excavator to locate and expose the actual
subsurface location of the underground facility or utility. If the UFO must resort to performing
excavation to locate the facility, the UFO shall perform such excavation within
five working days of notice from the excavator.
If requested, the local one-call notification center shall provide the
excavator with the contact telephone number of the UFO.
(4) If
excavation activity cannot proceed without obliterating all or some of the
markings made by a UFO, an excavator shall provide temporary offset marks or
stakes to retain the information regarding the location of each UFO's
underground facilities.
(5) The
requirement to provide positive response for a facility does not apply to the
homeowner of a residential property.
(6) The
commission encourages excavators to notify the UFO when excavation activity
will be within twenty-five feet of the actual utility marking provided or as
agreed upon by a right of way encroachment agreement or permit for
infrastructure identified by the UFO as critical (i.e., transmission and trunk
line pipelines, fiber optic, power, 911, etc.).
C. Temporary suspension of excavation
activity: If staff determines that
an excavation activity is not in compliance with the requirements of this rule,
and that continued noncompliance may result in injury to persons or damage to
property, staff may suspend the excavation activity until the excavation
activity is brought into compliance with the requirements of this rule and
excavation conditions are safe.
[18.60.5.15 NMAC -
Rp, 18.60.5.15 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.16 EMERGENCY EXCAVATION AND DAMAGE
REPORTING PROCEDURE:
This section applies whenever failure of or damage to underground facilities
or public infrastructure requires emergency excavation as defined in Subsection
E of Section 62-14-2 NMSA 1978 and excavation shall be promptly commenced,
ideally within 24 hours.
A. Excavators: An excavator who damages an underground
facility while excavating with mechanical or non-mechanical equipment
shall exercise prudence and shall:
(1) stop
excavating immediately;
(2) call
911 if appropriate and the operator of the damaged underground facility and 811
to report the damaged facility;
(3) secure the site
and direct people and traffic a safe distance away from the site of the damage;
(4) not
leave the scene until authorized by an emergency responder or the operator of
the damaged underground facility; an excavator may leave the scene without such
authorization only if the excavator has made reasonable, if unsuccessful,
efforts to contact the affected UFOs and has safely secured the site;
(5) not
resume work within an unsafe distance of the damage until authorized by the
operator of the damaged underground facility.
B. Operators of failed or damaged underground
facilities: The operator of a failed
or damaged underground facility shall exercise prudence and shall:
(1) immediately
respond to a report of damage or failure to its underground facilities and
travel to the site;
(2) prior
to traveling to the site or upon arrival, call the one-call notification system
for the excavation area to request an emergency locate;
(3) make
the site safe and get the emergency situation under control;
(4) locate
its own underground facilities as soon as practical, ideally within two hours;
(5) begin
remedial action to restore service as soon as practical, ideally within 24
hours; and
(6) obtain
a standard excavation locate ticket for repair work beyond resolution of the emergency situation.
C. Operators of failed or damaged public
infrastructure: The entity
responsible for the failed or damaged public infrastructure shall:
(1) call
the one-call notification system for the excavation area to request an
emergency locate;
(2) obtain
an excavation locate ticket for repair work beyond resolution of the emergency situation.
D. One-call notification system: A one-call notification system shall upon
request:
(1) issue
an emergency excavation notice which shall be valid until the emergency is
resolved, or for 48 hours, whichever is longer;
(2) issue
a notice of a reported damage to each affected UFO.
[18.60.5.16 NMAC -
Rp, 18.60.5.16 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.17 ABUSE
OF THE LAW: A person shall be deemed to have willfully
failed to comply with this rule or Chapter 62, Article 14 NMSA 1978 and shall
be subject to the penalties in Section 62-14-8 NMSA 1978 if the person:
A. requests a
locate for an area that cannot reasonably be excavated in 15 working days;
B. provides
misinformation or withholds information regarding the size of an excavation area;
C. requests locates
that unduly burden a one-call notification system or UFO;
D. requests a
locate for fraudulent reasons;
E. fails to process
locate requests within the requisite timeframe;
F. fails to mark, or
provide positive response for its underground facilities within the requisite timeframe;
G. fails to
determine if all underground facilities have been marked or cleared;
H. commences
excavation prior to the expiration of the [two day]
advance notice period;
I. obliterates
markings at an excavation site without providing temporary offset marks or stakes;
J. alters any
record relating to excavation activity;
K. fails to
pre-mark the actual intended excavation route or site(s) as required;
L. fails to report
or file a report of damage within requisite time frame; or
M. commits any other
act that the commission determines violates Chapter 62, Article 14 NMSA 1978 or
this rule.
[18.60.5.17 NMAC -
Rp, 18.60.5.17 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.19 ALTERNATIVE
DISPUTE RESOLUTION:
A. The commission
encourages owners and operators of underground facilities, project owners,
project engineers, and excavators to privately negotiate and settle
disputes arising from excavation damage to underground facilities
and
construction or design expenses related to improper underground facility
location.
B. In the event the
parties are unable to resolve such disputes privately, any owner or operator of
underground facilities, project owner, project engineer, or [any]
excavator may request mediation or arbitration from the commission.
C. Staff may
participate in mediation or arbitration proceedings.
D. In mediation and
arbitration proceedings, persons shall be represented in accordance with the
requirements of 18.60.4.11 NMAC.
[18.60.5.19 NMAC -
Rp, 18.60.5.19 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.22 WAIVER
OR VARIANCE FROM RULE REQUIREMENTS:
A. The commission
may, in its discretion, waive or vary any requirement of this rule whenever the
commission finds that such waiver or variance would be in the public interest.
B. An excavator, project
owner, project engineer, one-call notification system, or UFO that cannot
meet one or more of the requirements of this rule may petition the commission
for a waiver or variance. The petition
shall be in writing and shall include:
(1) a
list of those requirements which the excavator, project owner, project
engineer, one-call notification system, or UFO wishes to have waived or varied;
(2) an
explanation and description of the specific conditions which prevent the
requirement from being met; and,
(3) a
statement of steps already taken and to be taken, with projected time limits
for each step, in attempting to meet the requirements.
C. The commission
may order a hearing on the merits of the petition.
D. An excavator, project
owner, project engineer, one-call notification system, or UFO shall be
required to comply with requirements it has petitioned to have waived or varied
until the commission has issued an order on the merits of the petition, unless
the commission or its designee grants an interim waiver of or variance from one
of more of the requirements that are the subject of the petition.
[18.60.5.22 NMAC -
Rp, 18.60.5.22 NMAC, 1/15/2019; A, 8/9/2022]