BILL ANALYSIS C.S.H.B. 620 By: Carter 04-28-95 Committee Report (Substituted) BACKGROUND Currently, a person who excavates in Texas is not required to determine if any underground facilities are beneath the proposed excavation site. Furthermore, an excavator is not required to report any damage they may cause. Statistics show that excavation work is responsible for 45 percent of pipeline failures, making third-party damage or outside-force damages the leading cause of all ruptures. Furthermore, more than 250,000 Texans each year lose total service/or access to long distance service due to underground facilities that are cut by excavators who fail to call for information. A half-inch fiber optic cable cut can disrupt service to thousands of citizens and cut off whole communities or sections of communities from vital 9-1-1 service. Nearly 200,000 Texans lose access to 911 service each year due to cable cuts. Although several one-call centers offer notification services in Texas today, lines continue to be cut and critical services are interrupted. These cuts occur because excavators are not required to call before they dig and when they do call one of these notification centers, the center only notifies underground facility operators who have joined their system. Texas is one of only two states that has not passed some form of one-call legislation. PURPOSE This legislation would create a statewide notification system which would be accessed by a single 1-800 number. Entities that own underground facilities would be required to participate in the system and persons excavating in Texas would be required to call the 1-800 number prior to digging. Furthermore, excavators would be required to report damage they may cause. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Title SECTION 2. Defines "Corporation," "damage," "excavation," "excavator," "exploration and production underground facility," "legal holiday," "mechanized equipment," notification system," "operator," "person," "secured facility," underground facility." SECTION 3. Lists underground facilities that are not subject to this Act. SECTION 4. Provides that having a permit or permission from a property owner to dig does not affect an excavator's duty to comply with this Act. SECTION 5. Establishes the Texas Underground Facility Notification Corporation. Provides for election of the Board of Directors and directs the Board to contract with a public or private entity to establish the "One-Call" notification system. Provides for weighted voting after January 1, 1997. Details the process, by which, the Board will select a vendor to operate the notification center. Specifies that a 2/3 vote is required to approve bid specifications and to award the contract. SECTION 6. Provides that underground facility owners join the Underground Facility Notification Corporation and provide maps or other identifiers of the underground facilities they own. Specifies that the corporation may not require an operator to conduct a survey of the operator's underground facilities. SECTION 7. Specifies that each operator shall pay an initial entry fee of $50 and that the notification system shall charge each operator for a call made to the system that affects the operator. Requires a 2/3 vote of the Board to establish the cost per call. Establishes a $1.25 cap on the cost of the cal. Requires a 3/4 vote of the Board to exceed the $1.25 cap. SECTION 8. Provides that a person is considered to have complied with this Act when they contact the notification center within the time limits prescribed by the Act. SECTION 9. States that a person who intends to excavate must notify the notification system not earlier than the 14th day before the date of excavation or later than 48 hours before the time of excavation. Specifies the information required in the notice. SECTION 10. Provides for precautions to avoid damage to facilities. SECTION 11. Provides that in emergency situations an excavator may begin excavation immediately. SECTION 12. Lists certain instances in which a person is not required to call the notification center. SECTION 13. Specifies the duties of the notification system. Provides that the notification center shall provide to the excavator the name of each entity that owns an underground facility where they intend to dig. Provides that the notification center must operate a statewide toll-free number, operate 24 hours a day and maintain a $5 million liability insurance policy. SECTION 14. Provides that not later than 48 hours after receiving notice that an excavator intends to dig on or near an underground operator's facility, the operator shall locate and mark the approximate location of its underground facilities, if the operator believes that locating and marking the location is necessary. SECTION 15. Provides that the deadline imposed upon underground facility operators to locate and mark their facilities does not apply if the operator experiences extraordinary circumstances, such as an act of God, a tornado, a hurricane, an ice storm, a severe flood, a war, or a riot. SECTION 16. Specifies that if excavation damage occurs, the excavator shall, if they know whose facility has been damaged, immediately contact the underground facility operator. If the excavator is not certain of the operator's identity, the excavator shall contact the notification system. SECTION 17. Provides that an underground operator may file an action in court to enjoin excavation conducted in violation of this Act. SECTION 18. Provides for civil penalties for excavators that violate this Act. Specifies how fine revenues shall be divided. SECTION 19. Provides for the election of the Board of Directors of the Texas Underground Facility Notification Corporation and for staggering the terms of the members. SECTION 20. Effective Date. SECTION 21. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute: Adds a definition of "exploration and production underground facility" and clarifies the exception for exploration and production underground facilities to be included in this Act. Limits board service to one employee of a member operator and changes Board member to Director. Adds language to require a 2/3 vote of the Board to set the bid specifications and to award the contract. Provides for a 2/3 vote to set the initial cost per call and a 3/4 vote to exceed the $1.25 cap on cost per call. Provides for weighted voting after the first year. Provides that the notification center may not require an operator to conduct surveys of their underground facilities. Requires an excavator to provide detailed information to the notification center on the location of the excavation. Requires that when damage occurs, the excavator shall notify the facility owner directly if the excavator knows whose line has been hit. If the excavator does not know who owns the damaged facility, the excavator shall contact the notification center. Clarifies that an excavator may presume, unless otherwise notified, that the marking of an underground facility is within 18 inches of either side of the underground facility. Adds war or riot to extraordinary circumstances for purposes of waiving the requirement of line location. Removes language that stated that this Act does not effect any other civil remedies. Farmers and ranchers are only required to call when excavating deeper than 18 inches and they are digging in an underground facility easement or right-of-way. Also, removes farmers and ranchers from the penalty section. Adds an exemption for persons excavating less than 12 inches in depth. Provides that excavations related to railroad maintenance are exempt so long as the excavation does not go beyond 18 inches and is within 15 feet of either side of the middle of the track. Provides that the counties' portion of the civil fine revenue shall be deposited in the counties' general fund. A county that performs road and bridge activities is exempt from calling if the excavation does not exceed 12 inches and is not conducted in an underground facility easement or right-of-way. Provides that an excavator may dig before the 48 hour time requirement if the excavator has written permission from each underground facility owner who has facilities that are affected. Provides that underground facilities that serve only a cemetery and are located solely on the cemetery's property are not required to participate in the system. SUMMARY OF COMMITTEE ACTION H.B. 620 was considered by the committee in a public hearing on March 14, 1995. The following persons testified for the bill: Mel Kimbrel, representing MCI Telecommunications Corporation; Chris LLiteras, representing Southwestern Bell Telephone Company; Peter Slot, representing himself; Ronald Knight, representing himself and GTE; Allan Dees, representing himself and Texaco E&D Inc.; Patrick Nugent, representing the Texas Natural Gas Pipeline Association; Ellen Weaver, representing Lone Star Gas Company; Richard Hyde, representing Panhandle Eastern Corporation; Gary Smith, representing Lone Star Gas Company; Patrick Mullens, representing Phillips Petroleum Company; Ben Sebree, representing Texas Mid-Continent Oil and Gas Association; Larry Shamp, representing Shell Pipe Line Corporation, Shell Western EXP, and TMOGA; Doug Bryant, representing AT&T. The following persons testified against the bill: Bill Powers, represnting the Texas Farm Bureau; Jim Allison, representing County Judges and Commissioners Association of Texas; Christi Craddick, representing Texas and Southwestern Cattleraisers Association; Sheryl Nelson Cole, representing the Texas Municipal League. The following person testified on the bill: Mary McDaniel, representing the Texas Railroad Commission; Phil Becker, representing Associated General Contractors of Texas. The bill was referred to the subcommittee on "One Call". H.B. 620 was considered by the subcommittee on "One Call" in a public hearing on April 3, 1995. The subcommittee considered seven amendments to the bill. Six of those amendments were adopted without objection. One amendment was left pending. The bill was left pending. H.B. 620 was considered by the subcommittee on "One Call" in a public hearing on April 12, 1995. The following persons testified for the bill: Lee Marrs, representing Texas Excavation Safety System; Richard Hyde, representing Panhandle Corporation; Allan Dees, representing Texaco E&P Inc. The following persons testified against the bill: Jim Allison, representing County Judges and Commissioners Association of Texas; Ed Small, representing Texas & Southwestern Cattle Raisers. The subcommittee considered amendments #7, 8, and 9 to the bill. Amendments #7 and #8 were adopted without objection. Amendment #9 was adopted by a record vote of 2 ayes, 0 nays, 0 pnv, 1 absent. The subcommittee reconsidered the vote by which amendment #4 had been adopted in the April 3, 1995 meeting. The motion to reconsider passed by a record vote of 2 ayes, 0 nays, 0 pnv, 1 absent. The motion to adopt Amendment #4 then failed by a record vote of 0 ayes, 2 nays, 0 pnv, and 1 absent. The bill was reported favorably as amended to the full committee by a record vote of 2 ayes, 0 nays, 0 pnv, and 1 absent. After being recalled from subcommittee, the bill was considered by the committee in a formal meeting on April 25, 1995. The committee considered a complete substitute for the bill. The substitute was adopted without objection. The bill was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 5 ayes, 2 nays, 1 pnv, 1 absent.