The Law: State Law
CHAPTER 62, ARTICLE 14 NMSA 1978
(Known as the New Mexico Excavation Law)
The following information contains the wording of Chapter 62, Article
14 NMSA 1978, including the 2001 amendment. It has been structurally
altered to allow ease of reading and understanding. Please consult a
law library to obtain an exact copy of the statute.
AN ACT
Relating to pipelines and underground utility lines; amending statutes
providing for regulation of excavation near or of pipelines and underground
utility lines; increasing penalties.
62-14-1
Purpose and Intent
The purpose of Chapter 62, Article 14 NMSA 1978, is to prevent injury
to persons and damage to property from accidents resulting from damage
to pipelines, underground utility lines, cable television lines and
related facilities by excavating and blasting.
62-14-2
Definitions
For purposes of Chapter 62, Article 14 NMSA 1978:
A. "advance notice" means two working days;
B. "blasting" means the use of an explosive to excavate;
C. "cable television lines and related facilities" means
the facilities of any cable television system or closed-circuit coaxial
cable communications system or other similar transmission service used
in connection with any cable television system or other similar closed-circuit
coaxial cable communication system;
D. "commission" means the public regulation commission;
E. "emergency excavation" means an excavation that must
be performed due to circumstances beyond the excavator's control and
that affects public safety, health or welfare;
F. "excavate" means the movement or removal of earth using
mechanical excavating equipment or blasting and includes auguring, backfilling,
digging, ditching, drilling, grading, plowing in, pulling in, ripping,
scraping, trenching, tunneling and directional boring;
G. "excavator" means a person that excavates;
H. "means of location" means a mark such as a stake, a flag,
whiskers or paint that is conspicuous in nature and that is designed
to last at least ten working days if not disturbed;
I. "mechanical excavating equipment" means all equipment
powered by any motor, engine or hydraulic or pneumatic device used for
excavating and includes trenchers, bulldozers, back hoes, power shovels,
scrapers, draglines, clam shells, augers, drills, cable and pipe plows
or other plowing-in or pulling-in equipment;
J. "one call notification system" means a communication
system in which an operation center provides telephone services or other
reliable means of communication for the purpose of receiving excavation
notice information and distributing that information to owners and operators
of pipeline and other underground facilities;
K. "person" means the legal representative of or an individual,
partnership, corporation, joint venture, state, subdivision or instrumentality
of the state or an association;
L. "pipeline" means a pipeline or system of pipelines and
appurtenances for the transportation or movement of any oil or gas,
oil or gas products and byproducts, but does not include gathering
lines or systems operated exclusively for the gathering of oil or
gas, oil or gas products and their byproducts in any field or area,
lines or systems constituting a part of any tank farm, plant facilities
of any processing plant or underground storage projects unless it
is located within a municipality or in the boundaries of an established
easement or right of way or within the limits of any unincorporated
city, town or village or within any designated residential or commercial
area such as a subdivision, business or shopping center or community
development;
M. "reasonable efforts" means notifying the appropriate
one-call notification center or underground facility owner or operator
of planned excavation;
N. "underground facility" means any tangible property described
in Subsections C, L and O of this section that is underground, but does
not include residential sprinklers or low-voltage lighting; and
O. "underground utility line" means an underground conduit
or cable, including fiber optics, and related facilities for transportation
and delivery of electricity, telephonic or telegraphic communications
or water, sewer and fire protection lines.
62-14-3
Excavation
Every person who prepares engineering plans for excavation or who engages
in excavation shall:
A. determine the location of any underground facility in or near the
area where the excavation is to be conducted, including a request to
the owner or operator of the underground facility to locate the underground
facility pursuant to Section 62-14-5 NMSA 1978;
B. plan the excavation to avoid or minimize interference or damage
to underground facilities in or near the excavation area;
C. provide telephonic advance notice of the commencement, extent and
duration of the excavation work to the one-call-notification system
operating in the intended excavation area, or the owners of any existing
underground facility in and near the excavation area that are not
members of the local one-call notification center, in order to allow
the owners to locate, and mark the location of the underground facility
described in Section 62-14-5 NMSA 1978 prior to the commencement of
work in the excavation area and shall request reaffirmation of line
location every ten working days after the initial locate request;
D. prior to initial exposure of the underground facility, maintain
at least an estimated clearance of eighteen inches between existing
underground facilities for which the owners or operators have previously
identified the location and the cutting edge or point of any mechanical
excavating equipment utilized in the excavation and continue excavation
in a manner necessary to prevent damage;
E. provide such support for existing underground facilities in or
near the excavation area necessary to prevent damage to them;
F. backfill all excavations in a manner and with materials as may
be necessary to prevent damage to and provide reliable support during
and following backfilling activities for pre-existing underground facilities
in or near the excavation area;
G. immediately notify by telephone the owner of any underground facilities
which may have been damaged or dislocated during the excavation work;
and
H. not move or obliterate markings made pursuant to Chapter 62, Article
14 NMSA 1978, or fabricate markings in an unmarked location for the
purpose of concealing or avoiding liability for a violation of or
noncompliance with the provisions of Chapter 62, Article 14 NMSA 1978.
62-14-4
Emergency Excavation
Every person who engages in emergency excavation shall take all necessary
and reasonable precaution to avoid or minimize interference with or
damage to existing underground facilities in and near the construction
area and shall notify as promptly as possible the owners of underground
facilities located in and near the emergency excavation area. In the
event of any damage to or dislocation of any underground facility caused
by the emergency excavation work, the person responsible for the excavation
shall immediately notify the owner of the underground facility.
62-14-5
Marking of Facilities
A. Every person owning or operating an underground facility shall,
upon the request of a person intending to commence an excavation and
upon advance notice, locate and mark on the surface the actual horizontal
location, within twelve inches by some means of location, of the underground
facilities in or near the area of the excavation so as to enable the
person engaged in excavation work to locate the facilities in advance
of and during the excavation work.
B. If the owner or operator of the underground facility finds he
has no underground facilities in the proposed area of excavation,
the owner or operator shall contact the appropriate one-call notification
center or mark in the appropriate color code as specified in Section
62-14-5.1 NMSA 1978 the area as "Clear" or "No Underground
Facilities."
If the area is not marked "Clear" or "No Underground
Facilities," the excavator shall contact the one-call notification
system operating in the intended excavation area or the owners or
operators of any existing underground facility in and near the excavation
area that are not members of the local one-call notification center
in order to verify the area as "Clear" or "No Underground
Facilities."
C. If the owner or operator fails to correctly mark the underground
facility after being given advance notice and such failure to correctly
mark the facility results in additional costs to the person doing the
excavating, then the owner or operator shall reimburse the person engaging
in the excavation for the reasonable costs incurred.
D. An owner of an underground facility shall not move or obliterate
markings made pursuant to Chapter 62, Article 14, NMSA 1978, or fabricate
markings in an unmarked location for the purpose of concealing or
avoiding liability for a violation of or noncompliance with the provisions
of Chapter 62, Article 14 NMSA 1978.
62-14-5.1
Uniform Color Code for Location of Underground
Facilities
In marking the location of underground facilities, an owner or operator
shall use the following uniform color code:
A. blue for water;
B. green for sewer;
C. orange for communications/coaxial cable;
D. pink for survey;
E. purple for reclaimed water;
F. red for electric;
G. white for proposed excavation area; and
H. yellow for gas.
62-14-6
Liability for Damage to Underground Facilities
A. If any underground facility is damaged by any person who failed
to make reasonable efforts to determine its location as provided in
Chapter 62, Article 14 NMSA 1978, that person shall reimburse the owner
of the underground facility for the actual cost of damage to the underground
facility, including the cost of restoration of services. The person
engaging in the excavation may also be liable to the owner or operator
of the underground facility for the comparative negligence of the person
engaging in the excavation which results in damage to the facility for
an additional amount not to exceed three hundred thousand dollars ($300,000)
for each occurrence.
B. If any underground facility is damaged by any person who has made
reasonable efforts to determine its location and the damaged underground
facility was correctly located by the owner or operator of the underground
facility as provided in Section 62-14-5 NMSA 1978, then that person
causing the damage shall be liable to the owner or operator of the underground
facility for only the actual cost of damage to the underground facility,
including the cost of restoration of service.
C. If any underground facility is damaged by any person who has made
reasonable efforts to determine its location and damage to the underground
facility is caused by the failure of the owner or operator to correctly
locate that underground facility as provided in Section 62-14-5 NMSA
1978, then the person engaging in the excavation shall have no liability
for the damage to that facility.
D. It is not the intent of Chapter 62 Article 14 NMSA 1978 to impose
civil liability to any person beyond that provided in this section.
62-14-7
Liability for Negligence Notwithstanding Information Obtained
The act of obtaining or making reasonable efforts to obtain information
as required by Chapter 62, Article 14 NMSA 1978 shall not excuse any
person making any excavation from doing so in a careful and prudent
manner, nor shall it excuse such person from liability for any damage
or injury resulting from his negligence as limited in Section 62-14-6
NMSA 1978.
62-14-7.1
Pipeline One-Call Notification System
A. If a one-call system is operating in the region, an owner or operator of an underground facility subject to Chapter 62 , Article 14 NMSA 1978 shall be a member of a one-call notification system by April 15, 2008, unless earlier membership is required by federal law. A one-call notification system may
be for a region of the state or statewide in scope, unless federal law
provides otherwise.
B. Each one-call notification system shall be operated by:
(1) an owner or operator of pipeline facilities;
(2) a private contractor;
(3) a state or local government agency; or
(4) a person who is otherwise eligible under state law to operate
a one-call notification system.
C. If the one-call notification system is operated by owners or operators
of pipeline facilities, it shall be established as a nonprofit entity
governed by a board of directors that shall establish the operating
processes, procedures and technology needed for a one-call notification
system. The board shall further establish a procedure or formula to
determine the equitable share of each member for the costs of the one-call
notification system. The board may include representatives of excavators
or other persons deemed eligible to participate in the system who are
not owners or operators.
D. Excavators shall give advance notice to the one-call notification
system operating in the intended excavation area and provide information
established by rule of the commission, except when excavations are by
or for a person that:
(1) owns or leases or owns a mineral leasehold interest in the real
property on which the excavation occurs; and
(2) operates all underground facilities located in the intended excavation
area.
E. The one-call notification system shall promptly transmit excavation
notice information to owners or operators of pipeline facilities in
the intended excavation area.
F. After receiving advance notice, owners and operators of pipeline
facilities shall locate and mark their pipeline facilities in the intended
excavation area.
G. The one-call notification system shall provide a toll-free telephone
number or another comparable and reliable means of communication to
receive advance notice of excavation. Means of communication to distribute
excavation notice to owners or operators of pipeline facilities shall
be reliable and capable of coordination with one-call notification systems
operating in other regions of the state.
H. Operators of one-call notification systems shall notify the commission
of its members and the name and telephone number of the contact person
for each member and make available to the commission appropriate records
in investigations of alleged violations of Chapter 62, Article 14 NMSA
1978.
I. One-call notification systems and owners and operators of pipeline
facilities shall promote public awareness of the availability and operation
of one-call notification systems and work with state and local governmental
agencies charged with issuing excavation permits to provide information
concerning and promote awareness by excavators of one-call notification
systems.
J. The commission may prescribe reasonable maximum rates for the provision
of one-call services in New Mexico, provided that if the reasonableness of
such rates is contested in the manner provided by commission rule, the burden
of proof to show the unreasonableness of such rates shall be upon the person
contesting their reasonableness.
62-14-8
Penalties
In addition to any other liability imposed by law, an excavator,
after a formal hearing and upon a finding, who has failed to comply
with Subsection C of Section 62-14-3 NMSA 1978 is subject to an administrative
penalty of up to five thousand dollars ($5,000) for a first offense
as assessed by the commission. Thereafter, the commission may assess
an administrative penalty of up to a maximum of twenty-five thousand
dollars ($25,000) for subsequent violations of Subsection C of Section
62-14-3 NMSA 1978. In addition to any other penalty imposed by law,
an operator of underground pipeline facilities or underground utilities,
excavator or operator of a one-call notification system, after formal
hearing and upon a finding, who has willfully failed to comply with
Chapter 62, Article 14 NMSA 1978, and whose failure contributes to
the damage of any pipeline or underground utility line, shall be subject
to an administrative penalty of up to five thousand dollars ($5,000)
for a first offense as assessed by the commission. Thereafter, upon
finding that a violation of Chapter 62, Article 14 NMSA 1978, has
occurred, the commission may, upon consideration of the nature, circumstances,
gravity of the violation, history of prior violations, effect on public
health, safety or welfare and good faith on the part of the person
in attempting to remedy the cause of the violation, assess an administrative
penalty up to a maximum of twenty-five thousand dollars ($25,000)
per violation consistent with federal law. No offense occurring more
than five years prior to the current offense charged shall be considered
for any purpose. All actions to recover the penalties provided for
in this section shall be brought by the commission. All penalties
recovered in any such action shall be paid into the state
general fund.
62-14-9
Enforcement
If any person excavates or intends to excavate in violation of Chapter
62, Article 14 NMSA 1978, the commission or any interested or affected
owner or operator of an underground facility may file, in the district
court of the county in which the excavation is occurring or intended,
an action seeking to enjoin the excavation.
62-14-9.1
Alternative Dispute Resolution
The commission shall promulgate rules for voluntary alternative dispute
resolution procedures available to owners or operators, excavators and
other interested parties regarding disputes that cannot be resolved
through consultation and negotiation arising from damage to underground
facilities, including any cost of damage incurred by the owner or operator
or the excavator as a result of any delay in an excavation project while
an underground facility is restored, repaired or replaced. The alternative
dispute resolution procedure shall not affect civil penalties levied
pursuant to Section 62-14-8 NMSA 1978 or change the basis for civil
liability for damages.
62-14-10
Rule Making
The commission shall promulgate rules and regulations to implement
the provisions of Chapter 62, Article 14 NMSA 1978.
Complied by New Mexico One Call, Inc.
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