SRC-MAX H.B. 2295 75(R)BILL ANALYSIS


Senate Research CenterH.B. 2295
By: Oakley (Cain)
State Affairs
5-18-97
Committee Report (Amended)


DIGEST 

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 made.  Underground utilities report large product and service
losses each year from accidental damage to service lines.  Some of 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" refers to 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 indicate 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 phone service or access to long distance service due to
underground facilities that are cut by excavators who fail to call for
information.   

Although several dial-before-you-dig centers offer notification services
in Texas today, there are concerns that these centers are rather
regionalized, and lack information regarding the location of many utility
lines.  Another concern is that even when excavators did call one of these
notification centers, the center only notifies underground facility
operators who have joined their system. 

H.B.  2295 would require an excavator to make one telephone call to a
notification center that is registered with the Texas Underground Facility
Notification Corporation, as created by this Act, before beginning
excavation.  The call to the notification center would generate
notification of the intended excavation to the proper underground facility
operators, which would give the facility operators an opportunity to mark
their underground facilities.  The underground facility markings would, 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.        

PURPOSE

As proposed, H.B. 2295 sets forth a statewide notification system designed
to prevent damage and increase safety with regard to underground
facilities and excavation operations.  In establishing this system, this
bill creates the Texas Underground Facility Notification Corporation. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. SHORT TITLE:  Underground Facility Damage Prevention and Safety
Act. 

SECTION 2. DEFINITIONS.  Defines "agricultural operations" "Class A
underground facility," "Class B underground facility," "corporation,"
"damage," "excavate" or "excavation," "excavator," "exploration and
production underground facility," "high speed data transmission," "legal
holiday,"  "mechanized equipment," "notification center," "operator,"
"person," "routine maintenance," "secured facility," underground
facility," and "Saturday notification." 

SECTION 3. EXEMPTIONS.  Provides that certain storage tanks, sumps, or
impoundment, or piping, as well as certain underground facilities are not
subject to this Act as underground facilities. Authorizes an operator of
an underground register facility that is exempted under this section to
voluntarily convert that facility to a Class A underground facility by
sending written communication form a competent authority of the operator
to the Texas Underground Facility Notification Corporation advising of the
status change.  Provides that the provisions of this Act are inapplicable
to certain contractors.  Provides that evacuation by an employee of the
Texas Department of Transportation on a segment of the state highway
system is not subject to this Act in certain situation.   

SECTION 4. COMPLIANCE BY PERMIT HOLDERS.  Provides that the fact that a
person has a legal permit, permission from the owner of the property or
the owner's licensee, or an easement to conduct excavation operations does
not affect the person's duty to comply with this Act.  Provides that
compliance with this Act does not affect a person's responsibility to
obtain a permit required by law.   

SECTION 5. TEXAS UNDERGROUND FACILITY NOTIFICATION CORPORATION. Provides
that the Texas Underground Facility Notification Corporation (corporation)
is created to provide statewide notification services under this Act.
Provides that the corporation is a public nonprofit corporation and has
all the powers and duties incident to a nonprofit corporation under the
Texas Non-Profit Corporation Act (Article 1396-1.01, et seq., V.T.C.S.),
except that the corporation is prohibited from making certain donations,
from merging or consolidating with another corporation, and from being
placed in receivership.  Provides that the corporation is subject to
Chapters 551 and 552, Government Code, with certain exceptions.  Requires
all expenses of the corporation to be paid from the income of the
corporation.  Sets forth provisions regarding liabilities of the
corporation.  Prohibits the corporation, except as provided by SECTION 6
of this Act, for any reason, from imposing an assessment, fee, or other
charge, including a charge for inputting the data, against an operator.
Provides that the corporation member operators are divided into divisions
according to type of operator and sets forth these divisions.  Requires
the governor to appoint from each division a representative to serve on
the board of directors of the corporation (board).  Provides that a member
operator that has operations that can be classified in more than one
division is entitled to participate in each applicable division.  Sets
forth provisions regarding board membership.  Sets forth provisions
regarding a vacancy on the board. Requires the board to elect from among
its directors a chair and vice chair.  Provides that the chair and vice
chair serve for a term of one year and authorizes the reelection of the
chair and vice chair.  Requires the corporation's bylaws to provide that
each division is entitled to one vote.   

SECTION 6. FEES AND RATES.  Requires a Class A facility operator to pay
the board an annual fee of $50 before a certain date.  Prohibits a fee
from being prorated. Requires the notification center, each time a
notification center receives a call from an excavator pursuant to SECTION
9(a), to pay the corporation $0.01.  Requires the $0.01 charge to be
waived for the remainder of any year in which the corporation receives
$500,000 under this subsection.  Requires the notification center to
charge a Class A underground facility operator not more than $1.25 for a
call made to the system that affects the operator.  Authorizes the board
to increase or decrease the maximum charge only on an affirmative vote of
at least two-thirds of the total number of votes entitled to be cast.
Authorizes a notification center to petition the corporation for an
increase in the maximum charge and is entitled to the increase on proof
that costs exceed the maximum charge.  Prohibits the notification center
from charging an operator any additional fee such as an initiation fee, a
membership fee, or a set-up fee. 

SECTION 7. DUTY OF AN OPERATOR.   Requires each operator of a Class A
underground facility, including a political subdivision of this state, to
participate in a notification center as a condition of doing business in
this state.  Requires each operator of a Class A underground facility to
provide certain information to the notification center.  Prohibits the
notification center from requiring an operator to conduct a survey of the
operator's underground facilities or alter the operator's existing sign
age.  Authorizes an operator of a Class B underground facility to
voluntarily  convert to a Class A underground facility operator by sending
written communication form a competent authority of the operator to the
Texas Underground Facility Notification Corporation advising of the status
change. 

SECTION 8. DUTY OF NOTIFICATION CENTER.  Requires the notification center
to advise the excavator of certain conditions that exist regarding the
proposed excavation area. Requires the notification center, not later than
two hours after the time the notification center receives a notice of
intent to excavate from an excavator, to provide via high speed data
transmission to every other affected notification center operating in the
state the SECTION 9(c) information received from the excavator.  Requires
the notification center, two hours after the time the notification center
receives a notice of intent to excavate from an excavator or from a
different notification center, to notify each member operator that may
have an underground facility in the vicinity of the proposed excavation.
Sets forth additional requirements regarding the duties of a notification
center.  Sets forth procedures regarding the recovering of costs.  Sets
forth provisions regarding the maintenance of records to document certain
information.  Prohibits a notification center from destroying certain
records. Requires a notification center, at all times, to maintain a
minimum of $5 million professional liability and errors and omissions
insurance to cover duties prescribed by this Act.  Prohibits the
notification center from disseminating, making available, or otherwise
distributing maps or information provided by an operator unless that
action is necessary to perform the notification center's specific
obligations under this Act. 

SECTION 9. DUTY OF AN EXCAVATOR.  Requires, except as provided by SECTIONS
12 and 13 of this Act, a person that intends to excavate to notify a
notification center not earlier than the 14th day before the day the
excavation is to begin or later than the 48th hour before the time the
excavation is to begin, excluding Saturdays, Sundays, and legal holidays.
Sets forth provisions regarding a Saturday notification.  Prohibits the
excavator from beginning excavation before the time the excavation is to
begin without the prior written agreement of each operator that has an
underground facility in the area to be excavated.  Requires the person to
again notify a notification center of the intended excavation in
accordance with this subsection if the person does not begin the
excavation within 15 days after notifying the notification center,
excluding Saturdays, Sundays, and legal holidays. Requires the notice
required under this section to include certain information. Requires the
operator, if the operator notifies the excavator that the operator wants
to have a representative present during the excavation, to contact the
excavator and advise the excavator of the operator's intent to be present
during excavation and confirm the start time of the excavation. Requires
the excavator, if the start time is changed by the excavator, to notify
the operator of the start time change.  Prohibits the excavator, once
notified by the operator of the intent to be present, from commencing at
an earlier time than the confirmed start time without the operator's
agreement.   

SECTION 10. DUTY OF THE TEXAS UNDERGROUND FACILITY NOTIFICATION
CORPORATION.  Sets forth the specific duties of the corporation.  Requires
the corporation to solicit proposals for the contract to establish and
operate the statewide toll-free number and the call router system by using
a request for proposals process that includes specifications that have
been approved by the board of directors in accordance with this Act.
Provides that the corporation is not required to award the contract to the
lowest offeror if the terms of another proposal would result in a lower
annual cost and are more advantageous to the corporation and its members.
Authorizes the corporation to reject all proposals if the corporation
finds that none of the proposals is acceptable. Sets forth procedures
applicable after the proposals are opened. 

SECTION 11. NOTIFICATION BY AN EXCAVATOR.  Provides that a person is
considered to have provided notification under this Act when a person
required to provide notice under this Act delivers the required
information and a notification center receives that information within the
time limits prescribed by this Act.    Authorizes a person to deliver
information required under this Act by any appropriate method, including
the use of any electronic means of data transfer. 

SECTION 12. EXCEPTION IN CASE OF EMERGENCY.  Provides that SECTION 9 of
this Act 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.
Authorizes the excavator to begin emergency excavation under Subsection
(a) of this section immediately and requires the excavator to take
reasonable precautions to protect underground  facilities.  Requires an
excavator, when an emergency exists, to notify a notification center as
promptly as reasonably possible. 

SECTION 13. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS.  Provides that SECTION
9 of this Act does not apply to certain operations.    

SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING.  Requires each Class A
underground facility operator contracted by the notification system, not
later than the 48th hour after the excavator gives to the notification
system notice of intent to excavate, excluding Saturdays, Sundays, and
legal holidays, or at such time mutually agreed to by the operator and the
excavator, to mark the approximate location of its underground facilities
at or near the site of the proposed excavation if the operator believes
that locating and marking the location is necessary.  Authorizes an
excavator, for the purposes of this section, to presume, unless the
operator advises the excavator otherwise, that the marking of an
approximate location of an underground facility is within 18 inches on
either side of the underground facility.  Requires an operator to refer to
the American Public Works Association color coding standards when marking.
Provide that an excavator who has fully complied with this Act may not be
liable for damage to an underground facility that was not marked in
accordance with this Act. 

SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY CIRCUMSTANCE.
Provides that the deadline prescribed by SECTION 14(a) of this Act does
not apply under certain conditions.  Requires the operator to notify a
notification center of the extraordinary circumstance and to include
certain information in the notification.  Requires the operator, in
addition to the notification required by Subsection (b) of this section,
to also notify each excavator that has a pending location request in the
location where an extraordinary circumstance is being experienced and to
include in the notification certain information.  Requires a notification
center to inform each excavator notifying the system under SECTION 9 of
this Act that the operator's location request activities are suspended
until the extraordinary circumstance has discontinued or has been
corrected within the affected location.  Provides that an excavator is
relieved from all provisions of this Act until such time as the operator
notifies the notification center that the operator has resumed location
request within the affected location.   

SECTION 16. PRECAUTIONS TO AVOID DAMAGE TO FACILITIES.  Sets forth the
responsibilities of the excavator regarding damage to facilities, in
addition to providing notice required by SECTION 9 of this Act.  Requires
an excavator to consider the known limit of control of the cutting edge or
point of a piece of mechanized equipment in determining the necessary
clearance that must be maintained with uncovered surfaces and paved
surfaces.  Requires the excavator, if the center line or outer edges of
the underground facility is marked, to use a certain clearance.  Provides
that an operator can agree in writing that a smaller clearance can safely
be used. Prohibits the operator from reasonably withholding an agreement
to use a smaller clearance if the clearance is reasonable.  Authorizes the
operator, in determining if the clearance is reasonable, to consider the
method of excavation to be used and the potential for damage, service,
interruption, and loss of revenue. 

SECTION 17. EXCAVATION DAMAGE.  Requires the excavator, if an excavation
operation results in damage to an underground facility, to immediately
contact the underground facility operator to report the damage.  Requires
the excavator, if the excavator is not certain of the operator's identity,
to contact a notification center to report the damage, and requires the
notification center to immediately notify all other affected notification
centers.  Requires each notification center upon receiving such
notification, to immediately contact each member operator that has
underground facilities in or near the area in which the damage occurred.
Authorizes only the operator or a person authorized by the operator to
perform repairs and the repairs must be made in an expeditious manner.
Requires an excavator to delay backfilling in the immediate area of the
damage until the damage is repaired unless the operator authorizes the
backfilling.  Requires the excavator, if damage endangers life, health, or
property because of the presence of flammable material, to keep sources of
ignition away.   

SECTION 18. INJUNCTION.  Authorizes an operator to file an action in a
district court for an injunction to enjoin excavation conducted or
anticipated to be conducted in violation of this Act.  Provides that venue
for a suit brought under this section is in a county in which all or part
of the excavation occurs. 

SECTION 19. CIVIL PENALTY.  Sets forth provisions regarding civil
penalties.  Sets forth provisions regarding the assessment of penalties.
Sets forth provisions regarding venue for a proceeding under this section.
Requires the appropriate county attorney or criminal district attorney to
bring the action to recover the civil penalty at the request of an
operator.  Requires 50 percent of the civil penalty collected under this
section to be transferred to the county treasurer of the county
prosecuting the action and 50 percent of the civil penalty collected under
this section to  be transferred  to the corporation.  Requires the county
treasurer to deposit all money received under this section in the general
fund of the county.  Requires the corporation to use the money received
under this section to develop public service announcements to educate the
public about the one-call notification system and its availability as
prescribed by SECTION 10(a)(7) of this Act.  Provides that except as
otherwise specifically provided in this Act, this section is not intended
to affect any civil remedies otherwise provided by law for personal injury
or for property damage, including any damage to an underground facility.   

SECTION 20. CRIMINAL PENALTY FOR REMOVAL; DAMAGE, OR CONCEALMENT OF MARKER
OR SIGN.  Provides that a person commits a Class B misdemeanor if the
person performs certain actions. 

SECTION 21. EXISTING NOTIFICATION CENTERS.  Authorizes a notification
center operating on the effective date of this Act to continue to operate
if the notification center complies with this Act.   

SECTION 22. INITIAL DIRECTORS.  (a)  Requires the governor to appoint the
initial directors under SECTION 5 of this Act before November 1, 1997. 

(b)  Outlines the terms of the directors appointed to represent the
division under certain sections of this Act. 

SECTION 23. FACILITY ON COUNTY OR MUNICIPAL ROAD.  (a)  Provides that
SECTION 16 of this Act does not apply to an evacuation by a county
employee on a county road or a municipal employee on a municipal road
except in certain circumstances. 

(b)  Provides that this Act does not affect any contractual or statutory
right of a county or municipality to require an operator ro relocate,
replace, or repair its underground facility. 

SECTION 24.  Effective date: September 1, 1997.  Sets forth provisions
regarding the application of this Act. 

SECTION 25. Provides that this Act does not affect any civil remedy for
personal injury or for property damage, including any damage to an
underground facility. 

SECTION 26. Emergency clause.





SUMMARY OF COMMITTEE CHANGES

Amendment 1. 

(1)  Section 8, subdivision (e), before "(d)(3)" insert "b(d)(2), or."

(2)  Section 2, add subdivision (18) as follows:

(18)  "Saturday notification" means a notice of intent to excavate
provided by an  excavator to a notification center on a Saturday before
11:59a.m." 

(3)  Section 24, subsection (6), before "19" strike "and" and after "19"
insert ",23." 


Amendment 2. 

(1)  Section 3, subdivision (b), strike "register" and replace with
"convert." 

(2)  Section 3, subdivision (b), strike "under this Act but by doing so
assumes the obligation to comply with all the duties of an operator of a
Class A underground facility under this Act" and replace with "to a Class
A underground facility by sending written communication form a competent
authority of the operator to the Texas Underground Facility Notification
Corporation advising of the status change." 

(3)  Section 6, subdivision (c), strike "an" and insert after "charge" and
before "operator"  the phrase "a Class A underground facility." 

(4)  Section 7, subdivision (d), strike "provide the information required
by this section.  A Class B underground facility that provides the
information shall be treated as a Class A underground facility under this
Act."  and replace with "convert to a Class A underground facility
operator by sending written communication from a competent authority of
the operator to the Texas Underground Facility Notification Corporation
advising of the status change." 

 (5)  Strike Section 10(a)(1), and substitute the following:

(1)  maintain a registration of:

(A)  notification centers as provided by Section 2(12)(C) of this Act:

(B)  operators who elect to convert facilities to Class A facilities under
Section 3(b) of this Act; or 

(C)  operators who elect to become Class A underground facility operators
under Section 7(d) of this Act. 

(6)  Section 14, subdivision (a), strike the "the" before "operator
contracted" and replace with "each Class A underground facility." 

Amendment 3.

Section 19, subsection (a), insert after the word "violates" the following:

"either Section 9 or Section 17 of"

Amendment 4.  

Section 3, add Subsection (d), as follows: 

"(c)  Evacuation by an employee of the Texas Department of Transportation
on a segment of the state highway system is not subject to this Act,
provided that such exemption is: 

(1)  less than 24 inches is depth; and

(2)  more than 10 feet form the right-of-way line."



 
Amendment 5.

Sections 9, deletes subsection (b) and renumbers remaining subsections
accordingly. 

Amendment 6.

Section 15, adds new Subsection (e), as follows:

"(e) An evacuation is relieved from all provisions of this Act until such
time as the operator notified the notification center that the operator
has resumed location request activities within the affected location." 

Amendment 7.

Section 3, strikes Subsection (a)(5), and replace with the following:

"(5) the portion of an exploration and production underground facility
that is located within the boundaries of the oil or gas field from which
the oil and gas is produced and that is not located in the boundaries of
an established easement or right-of-way granted for the benefit of a
governmental entity or a private entity if the easment of right-ofway is
granted for a public purpose; or." 

Amendment 8.  

Section 2, subsection 6, strike "depth of 12 or more inches." and replace
with "depth of 16 or more inches." 

Amendment 12.

Section 19, page 22, line 24, subdivision (c), strike "cause of action"
and replace with "proceeding." 

Amendment 13.

Section 23(a), strike "or an evacuation in a public right-of-way."