By Oakley, Carter, Keel, et al. H.B. No. 2295
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to excavation operations that may damage underground
1-3 facilities; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. SHORT TITLE. This Act may be cited as the
1-6 Underground Facility Damage Prevention and Safety Act.
1-7 SECTION 2. DEFINITIONS. In this Act:
1-8 (1) "Agricultural operations" means activities
1-9 performed on land and described by Section 23.51(2), Tax Code.
1-10 (2) "Class A underground facility" means an
1-11 underground facility that is used to produce, store, convey,
1-12 transmit, or distribute:
1-13 (A) electrical energy;
1-14 (B) natural or synthetic gas;
1-15 (C) petroleum or petroleum products;
1-16 (D) steam;
1-17 (E) any form of telecommunications service,
1-18 including voice, data, video, or optical transmission, or cable
1-19 television service; or
1-20 (F) any other liquid, material, or product not
1-21 defined as a Class B underground facility.
1-22 (3) "Class B underground facility" means an
1-23 underground facility that is used to produce, store, convey,
1-24 transmit, or distribute:
2-1 (A) water;
2-2 (B) slurry; or
2-3 (C) sewage.
2-4 (4) "Corporation" means the Texas Underground Facility
2-5 Notification Corporation created by this Act.
2-6 (5) "Damage" means:
2-7 (A) the defacing, scraping, displacement,
2-8 penetration, destruction, or partial or complete severance of an
2-9 underground facility or of any protective coating, housing, or
2-10 other protective device of an underground facility;
2-11 (B) the weakening of structural or lateral
2-12 support of an underground facility; or
2-13 (C) the failure to properly replace the backfill
2-14 covering an underground facility.
2-15 (6) "Excavate" or "excavation" means to use explosives
2-16 or a motor, engine, hydraulic or pneumatically powered tool, or
2-17 other machine-powered equipment of any kind and includes auguring,
2-18 backfilling, boring, compressing, digging, ditching, drilling,
2-19 dragging, dredging, grading, mechanical probing, plowing-in,
2-20 pulling-in, ripping, scraping, trenching, and tunneling to remove
2-21 or otherwise disturb soil to a depth of 12 or more inches.
2-22 (7) "Excavator" means a person that excavates or
2-23 intends to excavate in this state.
2-24 (8) "Exploration and production underground facility"
2-25 means an underground facility used by a person producing gas or
2-26 oil, or both, for the production of that gas or oil, including
2-27 facilities used for field separation, treatment, gathering, or
3-1 storage of gas or oil.
3-2 (9) "High speed data transmission" means a method of
3-3 data transmission that does not include facsimile or voice
3-4 transmission.
3-5 (10) "Legal holiday" means a holiday specified as a
3-6 legal holiday by Subchapter B, Chapter 662, Government Code.
3-7 (11) "Mechanized equipment" means equipment operated
3-8 by mechanical power, including a trencher, bulldozer, power shovel,
3-9 auger, backhoe, scraper, drill, cable or pipe plow, and other
3-10 equipment used to plow in or pull in cable or pipe.
3-11 (12) "Notification center" means a legal entity that:
3-12 (A) operates a notification system capable of
3-13 serving excavators and operators statewide;
3-14 (B) is created to:
3-15 (i) receive notification of an intent to
3-16 excavate and of damage to an underground facility and disseminate
3-17 that information to member operators that may be affected by the
3-18 excavation or damage and to other notification centers operating in
3-19 this state; and
3-20 (ii) receive notification of an
3-21 extraordinary circumstance and disseminate that information to
3-22 member operators and to other notification centers operating in
3-23 this state; and
3-24 (C) registers the following information with the
3-25 corporation:
3-26 (i) its name, address, and telephone
3-27 number;
4-1 (ii) the name of a contact person;
4-2 (iii) a statement of compliance with
4-3 Section 8(h) of this Act; and
4-4 (iv) a listing of the counties in which it
4-5 operates.
4-6 (13) "Operator" means a person that operates an
4-7 underground facility.
4-8 (14) "Person" means an individual, corporation,
4-9 partnership, association, government or governmental subdivision or
4-10 agency, or other legal entity.
4-11 (15) "Routine maintenance" means operations, not to
4-12 exceed 24 inches in depth, within a road or drainage ditch
4-13 involving grading and removal or replacement of pavement and
4-14 structures.
4-15 (16) "Secured facility" means a parcel of land used
4-16 for commercial or industrial purposes that is surrounded entirely
4-17 by a fence or other means of preventing access, including a fence
4-18 with one or more gates that are locked at all times or monitored by
4-19 an individual who can prevent unauthorized access.
4-20 (17) "Underground facility" means a line, cable,
4-21 pipeline system, conduit, or structure that is located partially or
4-22 totally underground and that is used to produce, store, convey,
4-23 transmit, or distribute telecommunications, electricity, gas,
4-24 water, sewage, steam, or liquids such as petroleum, petroleum
4-25 products, or hazardous liquids.
4-26 SECTION 3. EXEMPTIONS. (a) The following are not subject
4-27 to this Act as underground facilities:
5-1 (1) an aboveground or underground storage tank, sump,
5-2 or impoundment or piping connected to an aboveground or underground
5-3 storage tank, sump, or impoundment located in the same tract of
5-4 land as the storage tank, sump, or impoundment;
5-5 (2) an underground facility operated by the owner of a
5-6 secured facility and located entirely within the secured facility;
5-7 (3) an underground facility that serves only the owner
5-8 of the underground facility or the owner's tenant and that is
5-9 located solely on the owner's property;
5-10 (4) piping within a well bore;
5-11 (5) the portion of an exploration and production
5-12 underground facility that is located within the boundaries of the
5-13 oil or gas field from which the oil and gas is produced and that is
5-14 not located:
5-15 (A) within a municipality;
5-16 (B) within the extraterritorial jurisdiction of
5-17 a municipality; or
5-18 (C) within the boundaries of an established
5-19 easement or right-of-way; and
5-20 (6) an underground facility that serves a cemetery and
5-21 is located solely on the cemetery's property.
5-22 (b) An operator of an underground facility that is exempted
5-23 under this section may voluntarily register that facility under
5-24 this Act but by doing so assumes the obligation to comply with all
5-25 the duties of an operator of a Class A underground facility under
5-26 this Act.
5-27 (c) The provisions of this Act are inapplicable to
6-1 contractors working in the public right-of-way pursuant to a
6-2 contract with the Texas Department of Transportation.
6-3 SECTION 4. COMPLIANCE BY PERMIT HOLDERS. (a) The fact that
6-4 a person has a legal permit, permission from the owner of the
6-5 property or the owner's licensee, or an easement to conduct
6-6 excavation operations does not affect the person's duty to comply
6-7 with this Act.
6-8 (b) Compliance with this Act does not affect a person's
6-9 responsibility to obtain a permit required by law.
6-10 SECTION 5. TEXAS UNDERGROUND FACILITY NOTIFICATION
6-11 CORPORATION. (a) The Texas Underground Facility Notification
6-12 Corporation is created to provide statewide notification services
6-13 under this Act.
6-14 (b) The corporation is a public nonprofit corporation and
6-15 has all the powers and duties incident to a nonprofit corporation
6-16 under the Texas Non-Profit Corporation Act (Article 1396-1.01, et
6-17 seq., Vernon's Texas Civil Statutes), except that the corporation:
6-18 (1) may not make donations for the public welfare or
6-19 for charitable, scientific, or educational purposes or in aid of
6-20 war activities;
6-21 (2) may not merge or consolidate with another
6-22 corporation;
6-23 (3) is not subject to voluntary or involuntary
6-24 dissolution; and
6-25 (4) may not be placed in receivership.
6-26 (c) The corporation is subject to Chapters 551 and 552,
6-27 Government Code, except that the corporation may not disseminate,
7-1 make available, or otherwise distribute service area map data or
7-2 information provided by an operator unless that action is necessary
7-3 to perform the corporation's specific obligations under this Act.
7-4 (d) All expenses of the corporation shall be paid from
7-5 income of the corporation. Liabilities created by the corporation
7-6 are not debts of the state, and the corporation may not secure any
7-7 liability with funds or assets of the state. Except as provided by
7-8 Section 6 of this Act, the corporation may not, for any reason,
7-9 impose an assessment, fee, or other charge, including a charge for
7-10 inputting data, against an operator.
7-11 (e) The corporation member operators are divided into
7-12 divisions according to type of operator. The divisions are:
7-13 (1) intrastate electric utilities;
7-14 (2) interstate electric utilities;
7-15 (3) electric cooperative corporations;
7-16 (4) local exchange telephone companies that have more
7-17 than 31,000 access lines in service in this state;
7-18 (5) interexchange telecommunications carriers;
7-19 (6) local exchange telephone companies that have
7-20 31,000 or fewer access lines in this state and telephone
7-21 cooperative corporations;
7-22 (7) gas distribution operators;
7-23 (8) intrastate gas transmission pipeline operators;
7-24 (9) interstate gas transmission pipeline operators;
7-25 (10) liquid pipeline operators;
7-26 (11) operators of Class B underground facilities that
7-27 elect to participate under this Act as a Class A facility;
8-1 (12) cable television companies that have fewer than
8-2 1,000 subscribers;
8-3 (13) cable television companies that have 1,000 or
8-4 more subscribers;
8-5 (14) political subdivisions with a population of less
8-6 than 25,000 that operate a Class A underground facility; and
8-7 (15) political subdivisions with a population of
8-8 25,000 or more that operate a Class A underground facility.
8-9 (f) The governor shall appoint from each division a
8-10 representative to serve on the board of directors of the
8-11 corporation. A member operator that has operations that can be
8-12 classified in more than one division is entitled to participate in
8-13 each applicable division. However, not more than one employee of
8-14 the operator may be appointed to serve on the board at any one
8-15 time. Board membership is voluntary and a director is not entitled
8-16 to receive compensation for serving on the board. Directors serve
8-17 staggered three-year terms, with the terms of five directors
8-18 expiring each August 31. A director serves until the director's
8-19 successor is appointed by the governor and assumes office. The
8-20 board may declare a director's office vacant if the director ceases
8-21 to be associated with an operator included in the division from
8-22 which the director was appointed. Not later than the 60th day
8-23 after the date a vacancy on the board is declared, the governor
8-24 shall appoint a person to fill the vacancy for the remainder of the
8-25 unexpired term.
8-26 (g) The board shall elect from among its directors a chair
8-27 and vice chair. The chair and vice chair serve for a term of one
9-1 year and may be re-elected.
9-2 (h) The corporation's bylaws must provide that each division
9-3 is entitled to one vote.
9-4 SECTION 6. FEES AND RATES. (a) Before January 15 of each
9-5 year, a Class A facility operator shall pay to the corporation a
9-6 fee of $50 for services to be performed by the corporation during
9-7 that calendar year. A fee for a part of a year may not be
9-8 prorated.
9-9 (b) Each time a notification center receives a call from an
9-10 excavator under Section 9(a) of this Act, the notification center
9-11 shall pay the corporation one cent. This charge shall be waived
9-12 for the remainder of any year in which the corporation receives
9-13 $500,000 under this subsection.
9-14 (c) The notification center shall charge an operator not
9-15 more than $1.25 for a call made to the system that affects the
9-16 operator. The board may increase or decrease the maximum charge
9-17 only on an affirmative vote of at least two-thirds of the total
9-18 number of votes entitled to be cast. A notification center may
9-19 petition the corporation for an increase in the maximum charge and
9-20 is entitled to the increase on proof that costs exceed the maximum
9-21 charge.
9-22 (d) The notification center may not charge an operator any
9-23 additional fee such as an initiation fee, a membership fee, or a
9-24 set-up fee.
9-25 SECTION 7. DUTY OF AN OPERATOR. (a) Each operator of a
9-26 Class A underground facility, including a political subdivision of
9-27 this state, shall participate in a notification center as a
10-1 condition of doing business in this state.
10-2 (b) Each operator of a Class A underground facility shall
10-3 provide to the notification center:
10-4 (1) maps or grid locations or other identifiers
10-5 determined by the operator indicating the location of the
10-6 operator's underground facilities;
10-7 (2) the name and telephone number of a contact person
10-8 or persons; and
10-9 (3) at least quarterly but, if possible, as those
10-10 changes occur, information relating to each change in the
10-11 operator's maps or grid locations or other identifiers or in the
10-12 person or persons designated as the operator's contact person or
10-13 persons.
10-14 (c) The notification center may not require an operator to
10-15 conduct a survey of the operator's underground facilities or alter
10-16 the operator's existing signage.
10-17 (d) An operator of a Class B underground facility may
10-18 voluntarily provide the information required by this section. A
10-19 Class B underground facility that provides the information shall be
10-20 treated as a Class A underground facility under this Act.
10-21 SECTION 8. DUTY OF NOTIFICATION CENTER. (a) At the time an
10-22 excavator provides a notification center with the excavator's
10-23 intent to excavate, the notification center shall advise the
10-24 excavator that water, slurry, and sewage underground facilities in
10-25 the area of the proposed excavation may not receive information
10-26 concerning the excavator's proposed excavation.
10-27 (b) Not later than two hours after the time the notification
11-1 center receives a notice of intent to excavate from an excavator,
11-2 the notification center shall provide via high speed data
11-3 transmission to every other affected notification center operating
11-4 in this state the information required by Section 9(c) of this Act
11-5 received from the excavator.
11-6 (c) Not later than two hours after the time the notification
11-7 center receives a notice of intent to excavate from an excavator or
11-8 from a different notification center, the notification center shall
11-9 notify each member operator that may have an underground facility
11-10 in the vicinity of the proposed excavation operation.
11-11 (d) A notification center shall:
11-12 (1) operate 24 hours a day every day of the year;
11-13 (2) have the capability to receive emergency
11-14 information 24 hours a day from excavators and disseminate the
11-15 information as soon as it is received to the appropriate operators
11-16 and to all registered and affected notification centers operating
11-17 in this state;
11-18 (3) have the capacity to receive extraordinary
11-19 circumstance information 24 hours a day from operators and
11-20 disseminate the information as soon as it is received to all
11-21 registered and affected notification centers; and
11-22 (4) submit to the corporation, not later than May 15
11-23 of each year, a pro rata share of the expense, as established by
11-24 the corporation, of the statewide toll-free telephone number and
11-25 the call router.
11-26 (e) A notification center that notifies another notification
11-27 center under Subsection (d)(3) of this section shall recover an
12-1 amount not exceeding the actual cost of providing the notice from
12-2 the notification center receiving the notice.
12-3 (f) A notification center shall maintain for not less than
12-4 four years a record to document:
12-5 (1) the receipt of:
12-6 (A) a notice of intent to excavate;
12-7 (B) damage to an underground facility;
12-8 (C) an emergency excavation; and
12-9 (D) an extraordinary circumstance;
12-10 (2) the information the excavator is required to
12-11 provide to the notification center under this Act;
12-12 (3) contact with operators and other notification
12-13 centers; and
12-14 (4) the information the notification center provided
12-15 to the excavator.
12-16 (g) A notification center may not destroy records that
12-17 relate to any matter that is involved in litigation if the
12-18 notification center is placed on notice that the litigation has not
12-19 been finally resolved.
12-20 (h) A notification center shall, at all times, maintain a
12-21 minimum of $5 million professional liability and errors and
12-22 omissions insurance to cover duties prescribed by this Act.
12-23 (i) The notification center may not disseminate, make
12-24 available, or otherwise distribute maps or information provided by
12-25 an operator unless that action is necessary to perform the
12-26 notification center's specific obligations under this Act.
12-27 SECTION 9. DUTY OF AN EXCAVATOR. (a) Except as provided by
13-1 Sections 12 and 13 of this Act, a person who intends to excavate
13-2 shall notify a notification center not earlier than the 14th day
13-3 before the date the excavation is to begin or later than the 48th
13-4 hour before the time the excavation is to begin, excluding
13-5 Saturdays, Sundays, and legal holidays. Provided, however, if an
13-6 excavator makes a Saturday notification, then the excavator can
13-7 begin the excavation the following Tuesday at 11:59 a.m. unless the
13-8 intervening Monday is a holiday. If the intervening Monday is a
13-9 holiday, then the excavator can begin the excavation the following
13-10 Wednesday at 11:59 a.m. The excavator may not begin excavation
13-11 before the time the excavation is to begin without the prior
13-12 written agreement of each operator that has an underground facility
13-13 in the area to be excavated. The person must again notify a
13-14 notification center of the intended excavation in accordance with
13-15 this subsection if the person does not begin the excavation before
13-16 the 15th day after the date the person notified the notification
13-17 center, excluding Saturdays, Sundays, and legal holidays.
13-18 (b) Until the excavation is completed, the excavator must,
13-19 not later than the 30th day after the last notification, notify a
13-20 notification center by telephone that the excavator has not
13-21 completed the excavation, unless the excavator has provided each
13-22 operator who has underground facilities in the area notice of the
13-23 uncompleted excavation and agreed with each of those operators on a
13-24 schedule of underground facility marking.
13-25 (c) The notice required under this section shall include:
13-26 (1) the name of the person serving the notice;
13-27 (2) the location of the proposed area of excavation,
14-1 including:
14-2 (A) the street address, if available, and the
14-3 location of the excavation at the street address; or
14-4 (B) if there is no street address, an accurate
14-5 description of the excavation area using any available designations
14-6 such as the closest street, road, or intersection;
14-7 (3) the name, address, and telephone number of the
14-8 excavator or the excavator's company;
14-9 (4) the excavator's field telephone number, if one is
14-10 available;
14-11 (5) the starting date and time and the anticipated
14-12 completion date of excavation; and
14-13 (6) a statement as to whether explosives will be used.
14-14 (d) To have a representative present during the excavation,
14-15 the operator shall contact the excavator and advise the excavator
14-16 of the operator's intent to be present during excavation and
14-17 confirm the start time of the excavation. If the start time is
14-18 changed by the excavator, the excavator shall notify the operator
14-19 of the start time change. After being notified by the operator of
14-20 the intent to be present, the excavator may not begin excavation at
14-21 an earlier time than the confirmed start time without the
14-22 operator's agreement.
14-23 SECTION 10. DUTY OF THE TEXAS UNDERGROUND FACILITY
14-24 NOTIFICATION CORPORATION. (a) The corporation shall develop and
14-25 implement processes to:
14-26 (1) maintain a registration of notification centers as
14-27 provided by Section 2(12)(C) of this Act;
15-1 (2) establish minimum technical standards used by
15-2 notification centers;
15-3 (3) establish a statewide toll-free telephone number
15-4 to be used by excavators that incorporates the use of a call router
15-5 system that routes calls to the notification centers on a pro-rata
15-6 basis;
15-7 (4) oversee the bid process and select the vendor for
15-8 the statewide toll-free telephone number;
15-9 (5) oversee the bid process and select the vendor for
15-10 the call router system;
15-11 (6) determine before May 1 of each year the
15-12 cost-sharing between the notification centers of:
15-13 (A) the toll-free telephone number; and
15-14 (B) the call router system prescribed by Section
15-15 8(d)(4) of this Act;
15-16 (7) develop public service announcements to educate
15-17 the public about statewide one-call notification and its
15-18 availability;
15-19 (8) establish a format for information transfer among
15-20 notification centers other than high speed data transmission, if
15-21 appropriate;
15-22 (9) on a complaint concerning charges, investigate and
15-23 determine appropriate charges;
15-24 (10) recommend a civil penalty against a notification
15-25 center that does not meet the requirements of this Act of not less
15-26 than $1,000 or more than $5,000 for each violation;
15-27 (11) refer the recommended penalty to the attorney
16-1 general who shall institute a suit in a court of competent
16-2 jurisdiction to recover the penalty;
16-3 (12) assist in dispute resolution among notification
16-4 centers or between a notification center and an operator; and
16-5 (13) assist any operator who encounters difficulty in
16-6 joining a notification center.
16-7 (b) The corporation shall solicit proposals for the contract
16-8 to establish and operate the statewide toll-free telephone number
16-9 and the call router system by using a request for proposals process
16-10 that includes specifications that have been approved by the board
16-11 of directors in accordance with this Act.
16-12 (c) The corporation is not required to award the contract to
16-13 the lowest offeror if the terms of another proposal would result in
16-14 a lower annual cost and are more advantageous to the corporation
16-15 and its members. The corporation may reject all proposals if the
16-16 corporation finds that none of the proposals is acceptable. After
16-17 the proposals are opened, each document relating to the
16-18 consideration of a proposal or the award of a contract and the text
16-19 of the contract are considered books and records of the corporation
16-20 for the purposes of Article 2.23, Texas Non-Profit Corporation Act
16-21 (Article 1396-2.23, Vernon's Texas Civil Statutes).
16-22 SECTION 11. NOTIFICATION BY AN EXCAVATOR. (a) A person
16-23 required to provide notice under this Act is considered to have
16-24 provided the notice when the person delivers the required
16-25 information and a notification center receives that information
16-26 within the time limits prescribed by this Act.
16-27 (b) A person may deliver information required under this Act
17-1 by any appropriate method, including the use of any electronic
17-2 means of data transfer.
17-3 SECTION 12. EXCEPTION IN CASE OF EMERGENCY. (a) Section 9
17-4 of this Act does not apply to an emergency excavation that is
17-5 necessary to respond to a situation that endangers life, health, or
17-6 property or a situation in which the public need for service
17-7 compels immediate action.
17-8 (b) The excavator may begin emergency excavation under
17-9 Subsection (a) of this section immediately and shall take
17-10 reasonable precautions to protect underground facilities.
17-11 (c) When an emergency exists, the excavator shall notify a
17-12 notification center as promptly as reasonably possible.
17-13 SECTION 13. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. Section
17-14 9 of this Act does not apply to:
17-15 (1) interment operations of a cemetery;
17-16 (2) operations at a secured facility if:
17-17 (A) the excavator operates each underground
17-18 facility at the secured facility, other than those within a
17-19 third-party underground facility easement or right-of-way; and
17-20 (B) the excavation activity is not within a
17-21 third-party underground facility or right-of-way;
17-22 (3) routine railroad maintenance within 15 feet of
17-23 either side of the midline of the track if the maintenance will not
17-24 disturb the ground at a depth of more than 18 inches;
17-25 (4) activities performed on private property in
17-26 connection with agriculture operations, except that if a person
17-27 excepted by this subdivision elects to comply with this Act and the
18-1 operator fails to comply with this Act, the person is not liable to
18-2 the underground facility owner for damages to the underground
18-3 facility;
18-4 (5) operations associated with the exploration or
18-5 production of oil or gas if the operations are not conducted within
18-6 an underground facility easement or right-of-way;
18-7 (6) excavations by or for a person that:
18-8 (A) owns, leases, or owns a mineral leasehold
18-9 interest in the real property on which the excavation occurs; and
18-10 (B) operates all underground facilities located
18-11 at the excavation site; or
18-12 (7) routine maintenance by a county employee on a
18-13 county road right-of-way to a depth of not more than 24 inches.
18-14 SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Not
18-15 later than the 48th hour after the time the excavator gives to the
18-16 notification system notice of intent to excavate, excluding
18-17 Saturdays, Sundays, and legal holidays, 11:59 a.m. on the Tuesday
18-18 following a Saturday notification unless the intervening Monday is
18-19 a holiday, 11:59 a.m. on the Wednesday following a Saturday
18-20 notification if the intervening Monday is a holiday, or at a time
18-21 agreed to by the operator and the excavator, the operator contacted
18-22 by the notification system shall mark the approximate location of
18-23 its underground facilities at or near the site of the proposed
18-24 excavation if the operator believes that marking the location is
18-25 necessary.
18-26 (b) For the purposes of this section, an excavator may
18-27 presume, unless the operator advises the excavator otherwise, that
19-1 the marking of an approximate location of an underground facility
19-2 is within 18 inches on either side of the underground facility.
19-3 (c) An operator shall refer to the American Public Works
19-4 Association color coding standards when marking.
19-5 (d) An excavator who has fully complied with this Act may
19-6 not be liable for damage to an underground facility that was not
19-7 marked in accordance with this Act.
19-8 SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
19-9 CIRCUMSTANCE. (a) The deadline prescribed by Section 14(a) of
19-10 this Act does not apply if the operator experiences an
19-11 extraordinary circumstance due to an act of God, including a
19-12 tornado, a hurricane, an ice storm, or a severe flood, or a war,
19-13 riot, work stoppage, or strike that limits personnel or resources
19-14 needed to fulfill its obligations under this Act.
19-15 (b) The operator shall notify a notification center of the
19-16 extraordinary circumstance and shall include in the notification:
19-17 (1) the nature and location of the extraordinary
19-18 circumstance;
19-19 (2) the expected duration of the situation and the
19-20 approximate time at which the operator will be able to resume
19-21 location request activities; and
19-22 (3) the name and telephone number of the individual
19-23 that the notification system can contact if there is an emergency
19-24 that requires the operator's immediate attention.
19-25 (c) In addition to the notification required by Subsection
19-26 (b) of this section, the operator shall also notify each excavator
19-27 that has a pending location request in the location where an
20-1 extraordinary circumstance is being experienced and shall include
20-2 in the notification:
20-3 (1) the fact that the operator is experiencing an
20-4 extraordinary circumstance; and
20-5 (2) the approximate time at which the operator will
20-6 mark the requested location.
20-7 (d) A notification center shall inform each excavator
20-8 notifying the system under Section 9 of this Act that the
20-9 operator's location request activities are suspended until the
20-10 extraordinary circumstance has discontinued or has been corrected
20-11 within the affected location.
20-12 SECTION 16. PRECAUTIONS TO AVOID DAMAGE TO FACILITIES. (a)
20-13 In addition to providing the notice required by Section 9 of this
20-14 Act, the excavator shall:
20-15 (1) provide support for each marked underground
20-16 facility that is reasonably necessary to protect the facility
20-17 during the excavation, including any backfill operations; and
20-18 (2) protect and preserve during excavation the marking
20-19 of the location of the underground facility until the marking is
20-20 not necessary for reasonably safe excavation.
20-21 (b) An excavator shall consider the known limit of control
20-22 of the cutting edge or point of a piece of mechanized equipment in
20-23 determining the necessary clearance that must be maintained with
20-24 uncovered surfaces and paved surfaces. If the centerline of the
20-25 underground facility is marked, the excavator shall use a clearance
20-26 of not less than 24 inches from the centerline. If the outer edges
20-27 of the underground facilities are marked by an operator, the
21-1 excavator shall use a clearance of not less than 24 inches from the
21-2 outer edge markings. An operator may agree that a smaller
21-3 clearance can safely be used. An operator may not reasonably
21-4 withhold an agreement to use a smaller clearance if the clearance
21-5 is reasonable. In determining if the clearance is reasonable, the
21-6 operator shall consider the method of excavation to be used and the
21-7 potential for damage, service interruption, and loss of revenue.
21-8 SECTION 17. EXCAVATION DAMAGE. (a) If an excavation
21-9 operation results in damage to an underground facility, the
21-10 excavator shall immediately contact the underground facility
21-11 operator to report the damage.
21-12 (b) If the excavator is not certain of the operator's
21-13 identity, the excavator shall contact a notification center to
21-14 report the damage, and the notification center shall immediately
21-15 notify all other affected notification centers. Immediately on
21-16 receiving notification, each notification center shall contact each
21-17 member operator that has underground facilities in or near the area
21-18 in which the damage occurred.
21-19 (c) Only the operator or a person authorized by the operator
21-20 may perform repairs, and the repairs must be made in an expeditious
21-21 manner.
21-22 (d) An excavator shall delay backfilling in the immediate
21-23 area of the damage until the damage is repaired unless the operator
21-24 authorizes the backfilling.
21-25 (e) If damage endangers life, health, or property because of
21-26 the presence of flammable material, the excavator shall keep
21-27 sources of ignition away.
22-1 SECTION 18. INJUNCTION. (a) An operator may file an action
22-2 in a district court for an injunction to enjoin excavation
22-3 conducted or anticipated to be conducted in violation of this Act.
22-4 (b) Venue for a suit brought under this section is in a
22-5 county in which all or part of the excavation occurs.
22-6 SECTION 19. CIVIL PENALTY. (a) An excavator that violates
22-7 this Act is liable for a civil penalty of not less than $100 or
22-8 more than $500. If it is found at the trial on a civil penalty
22-9 that the excavator has violated this Act and has been assessed a
22-10 penalty under this section one other time during the three years
22-11 preceding the date of the most recent violation, the excavator is
22-12 liable for a civil penalty of not less than $500 or more than
22-13 $1,000. If it is found at the trial on a civil penalty that the
22-14 excavator has violated this Act and has been assessed a penalty
22-15 under this section at least two other times during the three years
22-16 preceding the date of the most recent violation, the excavator is
22-17 liable for a civil penalty of not less than $1,000 or more than
22-18 $2,500.
22-19 (b) In assessing the penalty the court shall consider the
22-20 actual damage to the facility, the impact of the excavator's
22-21 actions on the public health and safety, whether the violation was
22-22 a wilful act, and any good faith of the excavator in attempting to
22-23 achieve compliance.
22-24 (c) Venue for a cause of action under this section is in the
22-25 county in which:
22-26 (1) all or part of the alleged violation occurred;
22-27 (2) the defendant has its principal place of business
23-1 in this state; or
23-2 (3) the defendant resides, if in this state.
23-3 (d) The appropriate county attorney or criminal district
23-4 attorney shall bring the action to recover the civil penalty at the
23-5 request of an operator.
23-6 (e) Fifty percent of the civil penalty collected under this
23-7 section shall be transferred to the county treasurer of the county
23-8 prosecuting the action and 50 percent of the civil penalty
23-9 collected under this section shall be transferred to the
23-10 corporation.
23-11 (f) The county treasurer shall deposit all money received
23-12 under this section in the general fund of the county.
23-13 (g) The corporation shall use the money received under this
23-14 section to develop public service announcements to educate the
23-15 public about the statewide one-call notification system and its
23-16 availability as prescribed by Section 10(a)(7) of this Act.
23-17 (h) Except as otherwise specifically provided in this Act,
23-18 this section does not affect any civil remedies otherwise provided
23-19 by law for personal injury or for property damage, including any
23-20 damage to an underground facility.
23-21 SECTION 20. CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR
23-22 CONCEALMENT OF MARKER OR SIGN. (a) A person commits an offense
23-23 if:
23-24 (1) the person without authorization from the owner or
23-25 operator of the facility intentionally removes, damages, or
23-26 conceals a marker or sign giving information about the location of
23-27 a Class A underground facility; and
24-1 (2) the marker or sign gives notice of the penalty for
24-2 intentional removal, damage, or concealment of the marker or sign.
24-3 (b) An offense under this section is a Class B misdemeanor.
24-4 SECTION 21. EXISTING NOTIFICATION CENTERS. A notification
24-5 center operating on the effective date of this Act may continue to
24-6 operate if the notification center complies with this Act.
24-7 SECTION 22. INITIAL DIRECTORS. (a) The governor shall
24-8 appoint the initial directors under Section 5 of this Act before
24-9 November 1, 1997.
24-10 (b) The initial terms of directors appointed to represent a
24-11 division under Sections 5(e)(1), (4), (7), (10), and (13) of this
24-12 Act expire August 31, 1998. The initial terms of directors
24-13 appointed to represent a division under Sections 5(e)(2), (5), (8),
24-14 (11), and (14) of this Act expire August 31, 1999. The initial
24-15 terms of directors appointed to represent a division under Sections
24-16 5(e)(3), (6), (9), (12), and (15) of this Act expire August 31,
24-17 2000.
24-18 SECTION 23. FACILITY ON COUNTY OR MUNICIPAL ROAD.
24-19 (a) Section 16 of this Act does not apply to an excavation by a
24-20 county employee on a county road or a municipal employee on a
24-21 municipal road, except an excavation within a recorded easement or
24-22 an excavation in a public right-of-way.
24-23 (b) This Act does not affect any contractual or statutory
24-24 right of a county or municipality to require an operator to
24-25 relocate, replace, or repair its underground facility.
24-26 SECTION 24. EFFECTIVE DATE; APPLICATION. This Act takes
24-27 effect September 1, 1997, and applies as follows:
25-1 (1) the powers and duties of the corporation under
25-2 Sections 5 and 10 of this Act apply only on and after November 1,
25-3 1997, except that:
25-4 (A) the corporation shall develop and implement
25-5 the processes required by Section 10(a) of this Act before March 1,
25-6 1998; and
25-7 (B) the corporation shall select vendors as
25-8 required by Sections 10(a)(4) and (5) of this Act before May 1,
25-9 1998;
25-10 (2) the initial fee due under Section 6(a) of this Act
25-11 is due January 15, 1998;
25-12 (3) registration is not required under Section
25-13 2(12)(C) of this Act until March 1, 1998;
25-14 (4) the duties of an operator under Section 7 of this
25-15 Act apply only on and after May 1, 1998;
25-16 (5) a fee is not due under Section 6(b) or (c) before
25-17 October 1, 1998; and
25-18 (6) the rights and duties provided by Sections 3, 4,
25-19 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, and 19 apply only on and
25-20 after October 1, 1998.
25-21 SECTION 25. EXISTING LAW. This Act does not affect any
25-22 civil remedy for personal injury or for property damage, including
25-23 any damage to an underground facility.
25-24 SECTION 26. EMERGENCY. The importance of this legislation
25-25 and the crowded condition of the calendars in both houses create an
25-26 emergency and an imperative public necessity that the
25-27 constitutional rule requiring bills to be read on three several
26-1 days in each house be suspended, and this rule is hereby suspended.