Can an Arkansas excavator start digging if utilities haven't responded through One Call within the legal time frame?
Plain-English summary
Senator Mark Johnson asked the AG how Arkansas's revised dig-safety law (the Underground Facilities Damages Prevention Act, as amended by Act 309 of 2023) treats excavators when utility operators don't respond on time. The new law says an excavator must confirm through the One Call Center's electronic positive response system that all operators have responded and marked their facilities before digging. Johnson asked: can you dig anyway if the two-business-day locate deadline has come and gone with no response? The AG: no.
The rule. A.C.A. § 14-271-110(a)(5)(C) bars excavation or demolition until the electronic positive response system confirms all operators have responded. Section (a)(5)(D) creates one carve-out: an excavator can dig before the waiting period ends "only if the excavator has confirmed that all operators have responded with an appropriate electronic positive response." Both provisions condition digging on confirmation, not on the passage of time.
No substitutes for electronic confirmation. The AG specifically noted that some other states (South Carolina, Kansas, Louisiana) have liability-shield provisions that let an excavator proceed when an operator fails to respond. Arkansas does not. Verbal confirmation or visible ground markings are not substitutes for the electronic positive response.
Penalty exposure. Excavating without electronic confirmation violates the Act and triggers civil penalties under A.C.A. § 14-271-104. If the excavator damages an underground facility, civil liability also attaches.
The 20-day clock. A.C.A. § 14-271-112(b)(3)(B) requires re-initiation of the notice-to-dig process if 20 days elapse from the original notice without confirmation. So if confirmation drags on, the excavator's only remedy is to re-notice. There is no provision letting the excavator simply proceed.
Operator-side exposure. Operators who fail to respond and mark their facilities can also face civil penalties and liability if their failure causes damage to their underground facility. § 14-271-104(a)(3) authorizes operator-side civil penalties.
Side-deals allowed. Excavators and operators can agree in writing to a different time period for the response. § 14-271-110(a)(2)(A)(i). But that agreement still requires positive-response confirmation; it just sets the timeline.
What this means for you
Excavation contractors
Your operating rule under Act 309 of 2023 is: don't dig until you have electronic positive response confirmation from every potentially affected operator. The two-business-day standard is the operator's deadline, not your green light.
Practical workflow:
- Place your One Call notice at least 2 business days before planned excavation.
- Monitor the electronic positive response system for confirmation from each operator.
- If an operator misses the deadline, contact them directly. Document your contact attempts.
- If you cannot get confirmation within 20 days of your original notice, re-notice and start the clock over.
- Do not begin excavation without complete confirmation, even if your project is on a tight schedule.
If you face pressure from a client or general contractor to dig despite missing confirmation, push back and document. Civil penalties for unauthorized digging plus damage liability dwarf the cost of waiting.
Utility operators
Your obligation to respond and mark within two business days is enforceable, and your failure to respond can expose you to civil penalties and liability if the un-marked facility is damaged. Treat One Call response as a top-priority operations task.
If you cannot respond within two business days for legitimate reasons (workforce shortage, location difficulty), consider whether a written agreement under § 14-271-110(a)(2)(A)(i) with the excavator extends the timeline. Document that.
Construction attorneys
This opinion is a clear statement that Arkansas does not have a "no response, no liability" rule for excavators. Counsel should advise contractors to halt work pending confirmation, even when economic pressure mounts. The penalty exposure (civil penalties under § 14-271-104, plus damage liability) is substantial.
For operator clients, this opinion is a reminder that response failure has its own civil-penalty exposure under § 14-271-104(a)(3).
Municipal engineers and project managers
Build the One Call confirmation requirement into your project schedules. Don't let your project plan assume excavation can begin on day 3 just because the law requires a two-day operator response. If operators routinely miss deadlines in your area, build in slack or coordinate with them in advance.
Homeowners doing excavation
Yes, this applies to you too if you are excavating on your property. The "Call Before You Dig" or 811 system is mandatory. Don't dig before you have electronic confirmation from every operator who responded. If you damage a gas line, water main, or fiber cable, you are liable, and the violation of the dig-safety law removes most defenses.
Common questions
The operator marked the ground but didn't respond electronically. Can I dig?
No. The electronic positive response is the controlling confirmation under Arkansas law, even if visible markings are present. The opinion specifically rejects ground markings as a substitute.
It's been 5 days and one operator hasn't responded. What now?
Contact the operator directly. Document your contact attempts. If 20 days elapses from your original notice without confirmation, re-notice. You cannot simply dig.
My contract requires me to start by a specific date. Can I tell my client the One Call delay forces a schedule change?
Yes, and you should. The legal requirement to wait for confirmation is a matter of state law that contractually binds you. A reasonable client (and a reasonable schedule clause) accommodates statutory compliance.
The operator says "go ahead, I'll mark it later." Is that good enough?
No. Verbal authorization from the operator is not a substitute for electronic positive response. The statute requires the system confirmation.
I'm an emergency excavator (gas leak response, broken water main). Do these rules apply?
The Act has emergency-response provisions you should consult with counsel. Most emergency-response procedures still require some form of notice but with shortened timelines. Don't assume an emergency exception unless you have one in writing or by statute.
Can I sue the operator for the cost of waiting?
Possibly. Operators who fail to respond may be liable for damage to their facility (§ 14-271-104(a)(3)) and may face civil penalties. Whether their delay creates excavator damages (project delay costs) is a contract question, not a statutory one. Consult counsel.
Background and statutory framework
The Arkansas Underground Facilities Damages Prevention Act, A.C.A. § 14-271-101 et seq., is the state's "Call Before You Dig" framework. Act 309 of 2023 amended the Act to require electronic positive response system confirmation before excavation. The intent is to reduce damage to underground facilities (gas, water, sewer, electric, telecom, fiber).
The two-business-day standard for operator response is in § 14-271-110. The electronic confirmation requirement is in § 14-271-110(a)(5)(C); the carve-out for early digging only with confirmation is in (a)(5)(D). The 20-day re-notice rule is in § 14-271-112(b)(3)(B). Penalty authority for excavators (§ 14-271-104) and operators (§ 14-271-104(a)(3)) is parallel.
The AG specifically contrasted Arkansas's framework with three other states' more permissive rules:
- South Carolina (S.C. Code Ann. § 58-36-60): operator's failure to respond does not prohibit the excavator from proceeding, provided no visible facility indication.
- Kansas (Kan. Stat. Ann. § 66-1806): excavator can proceed if operator fails to respond, no liability to operator.
- Louisiana (La. Stat. Ann. § 40:1749.14): waiver of excavator liability for damage if operator failed to respond.
Arkansas's General Assembly chose not to include any of these carve-outs. The AG read that legislative choice as decisive.
Citations
- A.C.A. § 14-271-101 et seq. (Underground Facilities Damages Prevention Act)
- A.C.A. § 14-271-104 (excavator civil penalties)
- A.C.A. § 14-271-104(a)(3) (operator civil penalties)
- A.C.A. § 14-271-110 (operator response requirements)
- A.C.A. § 14-271-110(a)(2)(A)(i) (written agreement on response time)
- A.C.A. § 14-271-110(a)(5)(C) (electronic positive response confirmation)
- A.C.A. § 14-271-110(a)(5)(D) (early excavation with full confirmation)
- A.C.A. § 14-271-112 (notice procedures)
- A.C.A. § 14-271-112(b)(3)(B) (20-day re-notice rule)
- Act 309 of 2023 (Arkansas amendments)
- Comparative state statutes: S.C. Code Ann. § 58-36-60; Kan. Stat. Ann. § 66-1806; La. Stat. Ann. § 40:1749.14
Source
Original opinion text
Opinion No. 2023-056
September 7, 2023
The Honorable Mark Johnson
State Senator
Post Office Box 241022
Little Rock, Arkansas 72223
Dear Senator Johnson:
I am writing in response to your request for my opinion on questions concerning the
Arkansas Underground Facilities Damages Prevention Act ("the Act"), A.C.A. § 14-271-
101 et seq., as amended by Act 309 of 2023. Specifically, your questions concern the
following language in the Act:
The excavator shall confirm through the One Call Center's electronic
positive response system before excavation or demolition that all operators
have responded and that all facilities that may be affected by the proposed
excavation or demolition have been marked.
You have asked three questions, some of which I have paraphrased. And, because my
response to your first question also resolves your second question, I have combined my
response to these questions in Question 2 below.
1. Does Arkansas law require an entity to wait until it can verify that all affected
utilities have been located through the One Call Center's electronic positive
response system before it can start excavating, regardless of the legal requirement
that the utility be located within two working days?
a. If so, are there any exclusions or exemptions to this requirement?
b. Can a positive response, verbally or markings on the ground, serve as a
substitute for a confirmation through the One Call Center's electronic positive
response system?
2. Is an entity obligated to wait until it can confirm that said utility has been located
even if it has not been located within the legal time frame?
Brief answer: Before an entity begins excavating, it must verify through the One
Call Center's electronic positive response system. The law does not
authorize exceptions to this process.
3. If an entity, through no fault of its own, cannot confirm through any legal means
that the locate process has been completed and work crews have to stand down, is
there a remedy short of re-initiating the locate process?
Brief answer: No. Without completing the electronic positive response system
confirmation process, an excavator risks civil penalties and liability
if it damages an underground facility during excavation. But the
initial notice-to-dig process must restart if 20 days elapses from the
date of initial notice to the One Call Center.
DISCUSSION
Question 1: Does Arkansas law require an entity to wait until it can verify that all
affected utilities have been located through the One Call Center's electronic positive
response system before it can start excavating, regardless of the legal requirement that
the utility be located within two working days?
a. If so, are there any exclusions or exemptions to this requirement?
b. Can a positive response, verbally or markings on the ground, serve as a
substitute for a confirmation through the One Call Center's electronic
positive response system?
Question 2: Is an entity obligated to wait until it can confirm that said utility has been
located even if it has not been located within the legal time frame?
Under A.C.A. § 14-271-110(a)(5)(C), a person cannot dig without first confirming through
the "One Call Center" or "Arkansas 811" that all operators have responded and have
marked their underground facilities. And while that same statute permits someone to dig
before the positive response system confirmation waiting period ends, it does so "only if
the excavator has confirmed that all operators have responded with an appropriate
electronic positive response." Unlike similar statutes in other states that authorize or shield
from liability someone who continues to dig when the operator fails to respond or
cooperate, the Act does not. Arkansas law does not permit someone to start digging until
that person has received the required confirmation.
Question 3: If an entity, through no fault of its own, cannot confirm through any legal
means that the positive response system confirmation process has been completed and
work crews have to stand down, is there a remedy short of re-initiating the locate
process?
Someone who digs without first confirming through the One Call Center violates the Act.
Similarly, the operator's failure to respond and mark the location may also violate the Act
and expose the operator to civil penalties and liability if the operator's failure can be traced
to someone damaging the underground facility. Although excavators and operators may
agree in writing to a time period other than the two-day electronic-positive-response
deadline under § 14-271-110, the parties must restart the initial notice-to-dig process under
§ 14-271-112 when 20 days elapses from the date initial notice to dig was given or the
location markings are no longer visible.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General