JWW C.S.H.B. 2295 75(R)BILL ANALYSIS PUBLIC SAFETY C.S.H.B. 2295 By: Oakley 3-24-97 Committee Report (Substituted) BACKGROUND Currently, a person or business that 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. Underground utilities report large product/service losses each year from accidental damage to service lines. These same utilities point to the lack of a single, centralized system for verifying the location of buried service lines as a probable reason for the large amount of service line damage in Texas. The term "one-call system" has come to symbolize a utility protection program that enables citizens and businesses alike to verify the location of underground utility lines with a single call made prior to digging. Texas is one of two states that does not have a one-call system. Statistics show that excavation work is responsible for 45% of pipeline failures, making thirdparty damage or outside force damages the leading cause of all ruptures. Furthermore, more than 250,000 Texans each year lose total phone 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 from vital 911 service. Nearly 200,000 Texans lose access to 911 service each year due to cable cuts. Texas leads the nation in FCC reportable telephone cable cuts with 20% of all outages nation wide.. Other underground utilities suffer similar losses each year in terms of service/product lost. Although several dial-before-you-dig centers offer notification services in Texas today, these are region-wide centers, and lack information regarding the location of many utility lines. As a result, lines continue to be cut and critical services interrupted, especially in highly populated areas. These cuts occur because excavators are not required to call before they dig. In addition, when excavators do call one of these notifications centers, the center only notifies underground facility operators who have joined their system. PURPOSE As proposed, HB 2295 is a safety bill requiring an excavator to make one telephone call before beginning excavation. The call will generate notification of the intended excavation to underground facility operators. The underground facility operator notification provides the underground facility operator with an opportunity to mark his underground facilities. The underground facility markings will, in turn, allow the excavation to be made without damage to any underground facility, without interruption of utility service, and without danger to the excavator and the general public caused by underground facility damage. 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 The short title of the bill is the Underground Facility Damage Prevention and Safety Act. SECTION 2 The definition section includes the general categorization of underground facilities into electric, gas, petroleum, steam, and telecommunications facilities (Class A underground facilities) and water, slurry, and steam facilities (Class B underground facilities). SECTION 3 Underground facilities exempted from the bill are listed. SECTION 4 A building permit or other license does not exempt an excavator from complying with this bill. SECTION 5 The Texas Underground Facility Notification Corporation is created as a non profit, general oversight organization. Membership on the board of directors is representative of all categories of underground facility operators and is through gubernatorial appointment. SECTION 6 There is no fee charged to an excavator when he makes his one call to a notification center. A notification center that notifies another notification center can charge the notification center receiving the notification no more than $1.25 per notification. A notification center may petition the corporation to increase the maximum charge, but must present evidence that costs exceed the maximum charge. SECTION 7 An operator of a Class A underground facility must join a notification center. An operator of a Class B underground facility can elect to join a notification center and will be treated as a Class A underground facility.. SECTION 8 Within two hours after a notification center receives a notice of excavation, the notification center must notify its underground facility operator members with underground facilities in the area of the excavation as well as all other notification centers with members in the area of the proposed excavation. SECTION 9 At least forty-eight hours before an excavation begins, the excavator is to make one telephone call to a notification center advising the notification center of the intended excavation. If excavation has not begun before the 15th day following notification, the person making the original call must contact the notification center again. If excavation has not been completed with in thirty days, excavator must contact notification center by telephone to indicate that excavation has not been completed. SECTION 10 The duties of the Texas Underground Facility Notification Corporation are listed including the establishment of a toll-free telephone number and a call router designed to route calls to the appropriate notification center. The determination of the cost sharing of the toll-free telephone number and the call router by the notification centers will be made by the corporation. SECTION 11 An excavator meets the requirements of the bill by notifying a notification center at least forty-eight hours prior to beginning the excavation. SECTION 12 The bill does not apply to an emergency excavation that is necessary to respond to a situation that endangers life, health, or property or a situation in which the public need for service compels immediate action. SECTION 13 Other exceptions to the duty of an excavator to call a notification center prior to beginning an excavation are listed in this section. SECTION 14 Once an operator is notified by a notification center of an excavation that will occur at or near an underground facility, the operator is to mark the facility using accepted industry marking colors if the operator believes that locating and marking the location is necessary. SECTION 15 The duty of an operator in the event of an extraordinary circumstance such as an act of God or a work stoppage is described in this section. SECTION 16 Precautions an excavator is to use when excavating near a marked underground facility are detailed in this section. SECTION 17 In the event excavation damage does occur, the section lists actions that an excavator is to follow. SECTION 18 An operator may seek to enjoin excavation conducted or anticipated to be conducted in violation of this Act. SECTION 19 Civil penalties are prescribed for failure to comply with the bill. SECTION 20 Any existing notification complying with this Act may continue to operate if in operation by the effective date. SECTION 21 This section states the initial terms of the directors appointed by the Governor under Section 5 of this Act. SECTION 22 Effective Date: September 1, 1997. States the schedule for the application of Sections under this Act. SECTION 23 Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 2 (1) formerly subsection (a). (2) formerly subsection (b). Sections 1-6 are renumbered as A-F. (3) formerly subsection (a). Sections 1-3 are renumbered as A-C. (4-10) formerly subsections (d-j). (11) formerly subsection (k). Deletes subsection (l). (12)(A)(B)(i)(ii) formerly (m)(1)(2)(A)(B). (ii) replaces "the" to "this", in reference to "state." (12)(C) formerly (m)(3). (i) combines former subsections (A-C). (ii) adds "the name of a" to "contact person." (iii) replaces "Section 8(h)" with "Section 8(g)." (12)(C)(iv) formerly (m)(3)(F) replaces "it" with "notification center." (13-14) formerly subsection (n-o). (15) formerly subsection (p), adds "that" between "gates" and "are" and replaces "a person" with " an individual." (16) formerly subsection (q). SECTION 3 Subsection (a)(5)(B) replaces "in" with "within." (C) replaces "in" with "within" and replaces "or" with "and." (b) adds "by doing so" to indicate that voluntary registration assumes compliance with all Class A operators duties. SECTION 5 (b) editing changes move the "and" from then of (3) to the end of (4) and replaces the semicolon at the end of (4) with a period. (e)(6) places "telephone cooperative corporations" at the end of (6) rather than the beginning of the subsection. (11) replaces "the" with "this" in reference to this Act. (f) replaces "annually on" with "each" in reference to the term expiration for division directors. Removes reference to staggered terms for division directors of specific operator types. Term limits will continue to be staggered. SECTION 6 (a) the $50 dollar annual fee applies to Class A operators and must be paid before January 15th of each year. Fees will not be prorated. (b) replaces "pursuant" with "under" in reference to Section 9(a). (c) adds provision that notification centers may petition the corporation for an increase to the maximum charge. However, any notification center doing so must present proof that costs exceed the maximum charge. (d) removes "in no event shall" and adds "may not" in reference to charges notification centers might add to the maximum charge. SECTION 7 (c) replaces "nor" with "or." (d) states that a Class B underground facility that provides the information will be treated as a Class A underground facility. SECTION 8 (4) states that no later than May 15th each year, each notification center will pay to the corporation a portion of the cost for the statewide 800 number and the call router. The amount paid by the notification centers will be determined by the corporation. The previous version did not specify when payment would be made, or who would set the amount paid by the notification centers. (d) adds that the amount a notification center notifying another notification center under Section 8(c)(3) may recover an amount not to exceed the actual cost of providing the notice. (e) deletes subsection (e). The previous (f) becomes (e) and all subsequent subsections are renumbered accordingly. SECTION 9 (a) states that if excavation is not begun before the 15th day following notification, the person making the original notification must again contact the notification center. (b) within thirty days of last notification, excavator must notify the notification center by telephone that excavation has not been completed. SECTION 10 (a) adds "develop and implement processes to:" (1) changes section reference from "Section (2)(m)(3)" to "Section 2(12)(C)". (3) replaces reference to "800 telephone number" to "statewide toll-free telephone number." Adds that the corporation must use a call router that routes call to the appropriate notification center. (4) replaces "800" with "toll-free." (6) adds "before May 1 of each year" in reference to the cost sharing between the notification centers. (A) replaces "800" with "toll-free." (B) adds "of this Act." (9) removes reference to Section 8(e). (10) replaces "assess" with "recommend" in reference to a civil penalty against a notification center. (11) removes reference to subsection (10). (12) replaces "between" with "among" in reference to disputes among notification centers. (13)(b) replaces "800" with "toll-free." SECTION 11 (a) adds "a person required to provide notice under this Act" to the beginning of the subsection. SECTION 13 (3) adds this subsection stating that routine railroad maintenance within 15 feet of the midline of the track, that does not exceed 18 inches, will be exempt under this section. All subsequent subsection are renumbered accordingly. (4) removes reference to Section 23.51(2) of the Tax Code of Texas. Formerly subsection (3). (b) removes "or impose" in reference to civil remedies. SECTION 15 (b) removes requirement that operator provide an agreement in writing that a smaller safety clearance may be used in excavation. SECTION 20 This section is added. The previous Section 20 becomes Section 23 SECTION 21 This section is added. The former Section 21 is incorporated into Section 22. SECTION 22 This section is added.