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 16 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 (18) "Saturday notification" means a notice of intent
4-27 to excavate provided by an excavator to a notification center on a
5-1 Saturday before 11:59 a.m.
5-2 (19) "Violation" means a violation of Section 9 of
5-3 this Act, Section 16 of this Act, or both.
5-4 SECTION 3. EXEMPTIONS. (a) The following are not subject
5-5 to this Act as underground facilities:
5-6 (1) an aboveground or underground storage tank, sump,
5-7 or impoundment or piping connected to an aboveground or underground
5-8 storage tank, sump, or impoundment located in the same tract of
5-9 land as the storage tank, sump, or impoundment;
5-10 (2) an underground facility operated by the owner of a
5-11 secured facility and located entirely within the secured facility;
5-12 (3) an underground facility that serves only the owner
5-13 of the underground facility or the owner's tenant and that is
5-14 located solely on the owner's property;
5-15 (4) piping within a well bore;
5-16 (5) the portion of an exploration and production
5-17 underground facility that is located within the boundaries of the
5-18 oil or gas field from which the oil and gas is produced and that is
5-19 not located in the boundaries of an established easement or
5-20 right-of-way granted for the benefit of a governmental entity or a
5-21 private entity if the easement or right-of-way is granted for a
5-22 public purpose; or
5-23 (6) an underground facility that serves a cemetery and
5-24 is located solely on the cemetery's property.
5-25 (b) An operator of an underground facility that is exempted
5-26 under this section may voluntarily convert that facility to a Class
5-27 A underground facility by sending written communication from a
6-1 competent authority of the operator to the Texas Underground
6-2 Facility Notification Corporation advising of the status change.
6-3 (c) The provisions of this Act are inapplicable to
6-4 contractors working in the public right-of-way pursuant to a
6-5 contract with the Texas Department of Transportation.
6-6 (d) Excavation by an employee of the Texas Department of
6-7 Transportation on a segment of the state highway system is not
6-8 subject to this Act, provided that such excavation is:
6-9 (1) less than 24 inches in depth; and
6-10 (2) no more than 10 feet from the right-of-way line.
6-11 SECTION 4. COMPLIANCE BY PERMIT HOLDERS. (a) The fact that
6-12 a person has a legal permit, permission from the owner of the
6-13 property or the owner's licensee, or an easement to conduct
6-14 excavation operations does not affect the person's duty to comply
6-15 with this Act.
6-16 (b) Compliance with this Act does not affect a person's
6-17 responsibility to obtain a permit required by law.
6-18 SECTION 5. TEXAS UNDERGROUND FACILITY NOTIFICATION
6-19 CORPORATION. (a) The Texas Underground Facility Notification
6-20 Corporation is created to provide statewide notification services
6-21 under this Act.
6-22 (b) The corporation is a public nonprofit corporation and
6-23 has all the powers and duties incident to a nonprofit corporation
6-24 under the Texas Non-Profit Corporation Act (Article 1396-1.01, et
6-25 seq., Vernon's Texas Civil Statutes), except that the corporation:
6-26 (1) may not make donations for the public welfare or
6-27 for charitable, scientific, or educational purposes or in aid of
7-1 war activities;
7-2 (2) may not merge or consolidate with another
7-3 corporation;
7-4 (3) is not subject to voluntary or involuntary
7-5 dissolution; and
7-6 (4) may not be placed in receivership.
7-7 (c) The corporation is subject to Chapters 551 and 552,
7-8 Government Code, except that the corporation may not disseminate,
7-9 make available, or otherwise distribute service area map data or
7-10 information provided by an operator unless that action is necessary
7-11 to perform the corporation's specific obligations under this Act.
7-12 (d) All expenses of the corporation shall be paid from
7-13 income of the corporation. Liabilities created by the corporation
7-14 are not debts of the state, and the corporation may not secure any
7-15 liability with funds or assets of the state. Except as provided by
7-16 Section 6 of this Act, the corporation may not, for any reason,
7-17 impose an assessment, fee, or other charge, including a charge for
7-18 inputting data, against an operator.
7-19 (e) The board of directors of the corporation is composed of
7-20 the following 12 members appointed by the governor:
7-21 (1) six representatives of the general public;
7-22 (2) one representative of the gas industry;
7-23 (3) one representative of the telecommunications
7-24 industry;
7-25 (4) one representative of the electric industry;
7-26 (5) one representative of cable television companies;
7-27 (6) one representative of municipalities; and
8-1 (7) one representative of persons who engage in
8-2 excavation operations who are not also facility operators.
8-3 (f) Board membership is voluntary and a director is not
8-4 entitled to receive compensation for serving on the board.
8-5 Directors serve staggered three-year terms, with the terms of four
8-6 directors expiring each August 31. A director serves until the
8-7 director's successor is appointed by the governor and assumes
8-8 office. The board may declare a director's office vacant if the
8-9 director ceases to be associated with the industry or an operator
8-10 the director represents. Not later than the 60th day after the
8-11 date a vacancy on the board is declared, the governor shall appoint
8-12 a person to fill the vacancy for the remainder of the unexpired
8-13 term.
8-14 (g) The board shall elect from among its directors a chair
8-15 and vice chair. The chair and vice chair serve for a term of one
8-16 year and may be reelected.
8-17 (h) The corporation's bylaws must provide that each director
8-18 is entitled to one vote.
8-19 SECTION 6. FEES AND RATES. (a) Before January 15 of each
8-20 year, a Class A facility operator shall pay to the corporation a
8-21 fee of $50 for services to be performed by the corporation during
8-22 that calendar year. A fee for a part of a year may not be
8-23 prorated.
8-24 (b) Each time a notification center receives a call from an
8-25 excavator under Section 9(a) of this Act, the notification center
8-26 shall pay the corporation one cent. This charge shall be waived
8-27 for the remainder of any year in which the corporation receives
9-1 $500,000 under this subsection.
9-2 (c) The notification center shall charge a Class A
9-3 underground facility operator not more than $1.25 for a call made
9-4 to the system that affects the operator. The board may increase or
9-5 decrease the maximum charge only on an affirmative vote of at least
9-6 two-thirds of the total number of votes entitled to be cast. A
9-7 notification center may petition the corporation for an increase in
9-8 the maximum charge and is entitled to the increase on proof that
9-9 costs exceed the maximum charge.
9-10 (d) The notification center may not charge an operator any
9-11 additional fee such as an initiation fee, a membership fee, or a
9-12 set-up fee.
9-13 SECTION 7. DUTY OF AN OPERATOR. (a) Each operator of a
9-14 Class A underground facility, including a political subdivision of
9-15 this state, shall participate in a notification center as a
9-16 condition of doing business in this state.
9-17 (b) Each operator of a Class A underground facility shall
9-18 provide to the notification center:
9-19 (1) maps or grid locations or other identifiers
9-20 determined by the operator indicating the location of the
9-21 operator's underground facilities;
9-22 (2) the name and telephone number of a contact person
9-23 or persons; and
9-24 (3) at least quarterly but, if possible, as those
9-25 changes occur, information relating to each change in the
9-26 operator's maps or grid locations or other identifiers or in the
9-27 person or persons designated as the operator's contact person or
10-1 persons.
10-2 (c) The notification center may not require an operator to
10-3 conduct a survey of the operator's underground facilities or alter
10-4 the operator's existing signage.
10-5 (d) An operator of a Class B underground facility may
10-6 voluntarily convert to a Class A underground facility operator by
10-7 sending written communication from a competent authority of the
10-8 operator to the Texas Underground Facility Notification Corporation
10-9 advising of the status change.
10-10 (e) At least once each calendar year, at intervals not
10-11 exceeding 15 months, each Class A underground facility operator who
10-12 conveys, transmits, or distributes by means of its underground
10-13 facilities service directly to more than one million residential
10-14 customers within this state shall provide all of its residential
10-15 customers in this state general information about excavation
10-16 activities covered by this Act and the statewide toll-free
10-17 telephone number established by the corporation.
10-18 SECTION 8. DUTY OF NOTIFICATION CENTER. (a) At the time an
10-19 excavator provides a notification center with the excavator's
10-20 intent to excavate, the notification center shall advise the
10-21 excavator that water, slurry, and sewage underground facilities in
10-22 the area of the proposed excavation may not receive information
10-23 concerning the excavator's proposed excavation.
10-24 (b) Not later than two hours after the time the notification
10-25 center receives a notice of intent to excavate from an excavator,
10-26 the notification center shall provide via high speed data
10-27 transmission to every other affected notification center operating
11-1 in this state the information required by Section 9(b) of this Act
11-2 received from the excavator.
11-3 (c) Not later than two hours after the time the notification
11-4 center receives a notice of intent to excavate from an excavator or
11-5 from a different notification center, the notification center shall
11-6 notify each member operator that may have an underground facility
11-7 in the vicinity of the proposed excavation operation.
11-8 (d) A notification center shall:
11-9 (1) operate 24 hours a day every day of the year;
11-10 (2) have the capability to receive emergency
11-11 information 24 hours a day from excavators and disseminate the
11-12 information as soon as it is received to the appropriate operators
11-13 and to all registered and affected notification centers operating
11-14 in this state;
11-15 (3) have the capacity to receive extraordinary
11-16 circumstance information 24 hours a day from operators and
11-17 disseminate the information as soon as it is received to all
11-18 registered and affected notification centers;
11-19 (4) submit to the corporation, not later than May 15
11-20 of each year, a pro rata share of the expense, as established by
11-21 the corporation, of the statewide toll-free telephone number and
11-22 the call router;
11-23 (5) provide, on request of an excavator, a contact
11-24 name and telephone number of a representative of the operator for
11-25 special circumstances; and
11-26 (6) have personnel capable of assisting
11-27 Spanish-speaking customers.
12-1 (e) A notification center that notifies another notification
12-2 center under Subsection (b), (d)(2), or (d)(3) of this section
12-3 shall recover an amount not exceeding the actual cost of providing
12-4 the notice from the notification center receiving the notice.
12-5 (f) A notification center shall maintain for not less than
12-6 four years a record to document:
12-7 (1) the receipt of:
12-8 (A) a notice of intent to excavate;
12-9 (B) damage to an underground facility;
12-10 (C) an emergency excavation; and
12-11 (D) an extraordinary circumstance;
12-12 (2) the information the excavator is required to
12-13 provide to the notification center under this Act;
12-14 (3) contact with operators and other notification
12-15 centers; and
12-16 (4) the information the notification center provided
12-17 to the excavator.
12-18 (g) A notification center may not destroy records that
12-19 relate to any matter that is involved in litigation if the
12-20 notification center is placed on notice that the litigation has not
12-21 been finally resolved.
12-22 (h) A notification center shall, at all times, maintain a
12-23 minimum of $5 million professional liability and errors and
12-24 omissions insurance to cover duties prescribed by this Act.
12-25 (i) The notification center may not disseminate, make
12-26 available, or otherwise distribute maps or information provided by
12-27 an operator unless that action is necessary to perform the
13-1 notification center's specific obligations under this Act.
13-2 SECTION 9. DUTY OF AN EXCAVATOR. (a) Except as provided by
13-3 Sections 12 and 13 of this Act, a person who intends to excavate
13-4 shall notify a notification center not earlier than the 14th day
13-5 before the date the excavation is to begin or later than the 48th
13-6 hour before the time the excavation is to begin, excluding
13-7 Saturdays, Sundays, and legal holidays. Provided, however, if an
13-8 excavator makes a Saturday notification, the excavator may begin
13-9 the excavation the following Tuesday at 11:59 a.m. unless the
13-10 intervening Monday is a holiday. If the intervening Monday is a
13-11 holiday, the excavator may begin the excavation the following
13-12 Wednesday at 11:59 a.m.
13-13 (b) The notice required under this section shall include:
13-14 (1) the name of the person serving the notice;
13-15 (2) the location of the proposed area of excavation,
13-16 including:
13-17 (A) the street address, if available, and the
13-18 location of the excavation at the street address; or
13-19 (B) if there is no street address, an accurate
13-20 description of the excavation area using any available designations
13-21 such as the closest street, road, or intersection;
13-22 (3) the name, address, and telephone number of the
13-23 excavator or the excavator's company;
13-24 (4) the excavator's field telephone number, if one is
13-25 available;
13-26 (5) the starting date and time and the anticipated
13-27 completion date of excavation; and
14-1 (6) a statement as to whether explosives will be used.
14-2 (c) To have a representative present during the excavation,
14-3 the operator shall contact the excavator and advise the excavator
14-4 of the operator's intent to be present during excavation and
14-5 confirm the start time of the excavation. If the excavator wants
14-6 to change the start time, the excavator shall notify the operator
14-7 to set a mutually agreed-to time to begin the excavation.
14-8 SECTION 10. DUTY OF THE TEXAS UNDERGROUND FACILITY
14-9 NOTIFICATION CORPORATION. (a) The corporation shall develop and
14-10 implement processes to:
14-11 (1) maintain a registration of:
14-12 (A) notification centers as provided by Section
14-13 2(12)(C) of this Act;
14-14 (B) operators who elect to convert facilities to
14-15 Class A facilities under Section 3(b) of this Act; or
14-16 (C) operators who elect to become Class A
14-17 underground facility operators under Section 7(d) of this Act;
14-18 (2) establish minimum technical standards used by
14-19 notification centers;
14-20 (3) establish a statewide toll-free telephone number
14-21 to be used by excavators that incorporates the use of a call router
14-22 system that routes calls to the notification centers on a pro rata
14-23 basis;
14-24 (4) oversee the bid process and select the vendor for
14-25 the statewide toll-free telephone number;
14-26 (5) oversee the bid process and select the vendor for
14-27 the call router system;
15-1 (6) determine before May 1 of each year the
15-2 cost-sharing between the notification centers of:
15-3 (A) the toll-free telephone number; and
15-4 (B) the call router system prescribed by Section
15-5 8(d)(4) of this Act;
15-6 (7) develop public service announcements to educate
15-7 the public about statewide one-call notification and its
15-8 availability;
15-9 (8) establish a format for information transfer among
15-10 notification centers other than high speed data transmission, if
15-11 appropriate;
15-12 (9) on a complaint concerning charges, investigate and
15-13 determine appropriate charges;
15-14 (10) recommend a civil penalty against a notification
15-15 center that does not meet the requirements of this Act of not less
15-16 than $1,000 or more than $5,000 for each violation;
15-17 (11) refer the recommended penalty to the attorney
15-18 general who shall institute a suit in a court of competent
15-19 jurisdiction to recover the penalty;
15-20 (12) assist in dispute resolution among notification
15-21 centers or between a notification center and an operator;
15-22 (13) assist any operator who encounters difficulty in
15-23 joining a notification center; and
15-24 (14) review and study design standards for the
15-25 placement of underground facilities throughout this state.
15-26 (b) The corporation shall solicit proposals for the contract
15-27 to establish and operate the statewide toll-free telephone number
16-1 and the call router system by using a request for proposals process
16-2 that includes specifications that have been approved by the board
16-3 of directors in accordance with this Act.
16-4 (c) The corporation is not required to award the contract to
16-5 the lowest offeror if the terms of another proposal would result in
16-6 a lower annual cost and are more advantageous to the corporation
16-7 and its members. The corporation may reject all proposals if the
16-8 corporation finds that none of the proposals is acceptable. After
16-9 the proposals are opened, each document relating to the
16-10 consideration of a proposal or the award of a contract and the text
16-11 of the contract are considered books and records of the corporation
16-12 for the purposes of Article 2.23, Texas Non-Profit Corporation Act
16-13 (Article 1396-2.23, Vernon's Texas Civil Statutes).
16-14 SECTION 11. NOTIFICATION BY AN EXCAVATOR. (a) A person
16-15 required to provide notice under this Act is considered to have
16-16 provided the notice when the person delivers the required
16-17 information and a notification center receives that information
16-18 within the time limits prescribed by this Act.
16-19 (b) A person may deliver information required under this Act
16-20 by any appropriate method, including the use of any electronic
16-21 means of data transfer.
16-22 SECTION 12. EXCEPTION IN CASE OF EMERGENCY. (a) Section 9
16-23 of this Act does not apply to an emergency excavation that is
16-24 necessary to respond to a situation that endangers life, health, or
16-25 property or a situation in which the public need for uninterrupted
16-26 service and immediate reestablishment of service if service is
16-27 interrupted compels immediate action.
17-1 (b) The excavator may begin emergency excavation under
17-2 Subsection (a) of this section immediately and shall take
17-3 reasonable precautions to protect underground facilities.
17-4 (c) When an emergency exists, the excavator shall notify a
17-5 notification center as promptly as reasonably possible.
17-6 SECTION 13. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. Section
17-7 9 of this Act does not apply to:
17-8 (1) interment operations of a cemetery;
17-9 (2) operations at a secured facility if:
17-10 (A) the excavator operates each underground
17-11 facility at the secured facility, other than those within a
17-12 third-party underground facility easement or right-of-way; and
17-13 (B) the excavation activity is not within a
17-14 third-party underground facility or right-of-way;
17-15 (3) routine railroad maintenance within 15 feet of
17-16 either side of the midline of the track if the maintenance will not
17-17 disturb the ground at a depth of more than 18 inches;
17-18 (4) activities performed on private property in
17-19 connection with agriculture operations, except that if a person
17-20 excepted by this subdivision elects to comply with this Act and the
17-21 operator fails to comply with this Act, the person is not liable to
17-22 the underground facility owner for damages to the underground
17-23 facility;
17-24 (5) operations associated with the exploration or
17-25 production of oil or gas if the operations are not conducted within
17-26 an underground facility easement or right-of-way;
17-27 (6) excavations by or for a person that:
18-1 (A) owns, leases, or owns a mineral leasehold
18-2 interest in the real property on which the excavation occurs; and
18-3 (B) operates all underground facilities located
18-4 at the excavation site; or
18-5 (7) routine maintenance by a county employee on a
18-6 county road right-of-way to a depth of not more than 24 inches.
18-7 SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Not
18-8 later than the 48th hour after the time the excavator gives to the
18-9 notification system notice of intent to excavate, excluding
18-10 Saturdays, Sundays, and legal holidays, 11:59 a.m. on the Tuesday
18-11 following a Saturday notification unless the intervening Monday is
18-12 a holiday, 11:59 a.m. on the Wednesday following a Saturday
18-13 notification if the intervening Monday is a holiday, or at a time
18-14 agreed to by the operator and the excavator, each Class A
18-15 underground facility operator contacted by the notification system
18-16 shall mark the approximate location of its underground facilities
18-17 at or near the site of the proposed excavation if the operator
18-18 believes that marking the location is necessary.
18-19 (b) An operator shall refer to the American Public Works
18-20 Association color coding standards when marking.
18-21 (c) An excavator who has fully complied with this Act may
18-22 not be liable for damage to an underground facility that was not
18-23 marked in accordance with this Act.
18-24 SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
18-25 CIRCUMSTANCE. (a) The deadline prescribed by Section 14(a) of
18-26 this Act does not apply if the operator experiences an
18-27 extraordinary circumstance due to an act of God, including a
19-1 tornado, a hurricane, an ice storm, or a severe flood, or a war,
19-2 riot, work stoppage, or strike that limits personnel or resources
19-3 needed to fulfill its obligations under this Act.
19-4 (b) The operator shall notify a notification center of the
19-5 extraordinary circumstance and shall include in the notification:
19-6 (1) the nature and location of the extraordinary
19-7 circumstance;
19-8 (2) the expected duration of the situation and the
19-9 approximate time at which the operator will be able to resume
19-10 location request activities; and
19-11 (3) the name and telephone number of the individual
19-12 that the notification system can contact if there is an emergency
19-13 that requires the operator's immediate attention.
19-14 (c) In addition to the notification required by Subsection
19-15 (b) of this section, the operator shall also notify each excavator
19-16 that has a pending location request in the location where an
19-17 extraordinary circumstance is being experienced and shall include
19-18 in the notification:
19-19 (1) the fact that the operator is experiencing an
19-20 extraordinary circumstance; and
19-21 (2) the approximate time at which the operator will
19-22 mark the requested location.
19-23 (d) A notification center shall inform each excavator
19-24 notifying the system under Section 9 of this Act that the
19-25 operator's location request activities are suspended until the
19-26 extraordinary circumstance has discontinued or has been corrected
19-27 within the affected location.
20-1 (e) An excavator is relieved from all provisions of this Act
20-2 until such time as the operator notifies the notification center
20-3 that the operator has resumed location request activities within
20-4 the affected location.
20-5 SECTION 16. EXCAVATION DAMAGE. (a) If an excavation
20-6 operation results in damage to an underground facility, the
20-7 excavator shall immediately contact the underground facility
20-8 operator to report the damage.
20-9 (b) If the excavator is not certain of the operator's
20-10 identity, the excavator shall contact a notification center to
20-11 report the damage, and the notification center shall immediately
20-12 notify all other affected notification centers. Immediately on
20-13 receiving notification, each notification center shall contact each
20-14 member operator that has underground facilities in or near the area
20-15 in which the damage occurred.
20-16 (c) Only the operator or a person authorized by the operator
20-17 may perform repairs, and the repairs must be made in an expeditious
20-18 manner.
20-19 (d) An excavator shall delay backfilling in the immediate
20-20 area of the damage until the damage is reported to the operator and
20-21 a repair schedule is mutually agreed to by the excavator and the
20-22 operator.
20-23 (e) If damage endangers life, health, or property because of
20-24 the presence of flammable material, the excavator shall keep
20-25 sources of ignition away.
20-26 SECTION 17. CIVIL PENALTY. (a) An excavator that violates
20-27 either Section 9 or Section 16 of this Act is liable for a civil
21-1 penalty of not less than $50 or more than $100. If it is found at
21-2 the trial on a civil penalty that the excavator has violated this
21-3 Act and has been assessed a penalty under this section one other
21-4 time before the first anniversary of the date of the most recent
21-5 violation, the excavator is liable for a civil penalty of not less
21-6 than $100 or more than $200. If it is found at the trial on a
21-7 civil penalty that the excavator has violated this Act and has been
21-8 assessed a penalty under this section at least two other times
21-9 before the first anniversary of the date of the most recent
21-10 violation, the excavator is liable for a civil penalty of not less
21-11 than $200 or more than $500.
21-12 (b) In assessing the penalty the court shall consider the
21-13 actual damage to the facility, the impact of the excavator's
21-14 actions on the public health and safety, whether the violation was
21-15 a wilful act, and any good faith of the excavator in attempting to
21-16 achieve compliance.
21-17 (c) Venue for a proceeding under this section is in the
21-18 county in which:
21-19 (1) all or part of the alleged violation occurred;
21-20 (2) the defendant has its principal place of business
21-21 in this state; or
21-22 (3) the defendant resides, if in this state.
21-23 (d) The appropriate county attorney or criminal district
21-24 attorney shall bring the action to recover the civil penalty.
21-25 (e) Fifty percent of the civil penalty collected under this
21-26 section shall be transferred to the county treasurer of the county
21-27 prosecuting the action and 50 percent of the civil penalty
22-1 collected under this section shall be transferred to the
22-2 corporation.
22-3 (f) The county treasurer shall deposit all money received
22-4 under this section in the county road and bridge fund.
22-5 (g) The corporation shall use the money received under this
22-6 section to develop public service announcements to educate the
22-7 public about the statewide one-call notification system and its
22-8 availability as prescribed by Section 10(a)(7) of this Act.
22-9 (h) Except as otherwise specifically provided in this Act,
22-10 this section does not affect any civil remedies otherwise provided
22-11 by law for personal injury or for property damage, including any
22-12 damage to an underground facility.
22-13 (i) Subsection (a) of this section does not apply to a
22-14 residential property owner excavating on the property owner's own
22-15 residential lot.
22-16 SECTION 18. CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR
22-17 CONCEALMENT OF MARKER OR SIGN. (a) A person commits an offense
22-18 if:
22-19 (1) the person without authorization from the owner or
22-20 operator of the facility intentionally removes, damages, or
22-21 conceals a marker or sign giving information about the location of
22-22 a Class A underground facility; and
22-23 (2) the marker or sign gives notice of the penalty for
22-24 intentional removal, damage, or concealment of the marker or sign.
22-25 (b) An offense under this section is a Class B misdemeanor.
22-26 SECTION 19. EXISTING NOTIFICATION CENTERS. A notification
22-27 center operating on the effective date of this Act may continue to
23-1 operate if the notification center complies with this Act.
23-2 SECTION 20. INITIAL DIRECTORS. (a) The governor shall
23-3 appoint the initial directors under Section 5 of this Act before
23-4 November 1, 1997.
23-5 (b) In appointing the initial members of the board of
23-6 directors of the corporation, the governor shall appoint the
23-7 members so that:
23-8 (1) two representatives of the general public and the
23-9 representatives of the electric industry and of cable television
23-10 companies serve terms expiring on August 31, 1998;
23-11 (2) two representatives of the general public and the
23-12 representatives of the telecommunications and gas industries serve
23-13 terms expiring on August 31, 1999; and
23-14 (3) two representatives of the general public and the
23-15 representatives of municipalities and excavators serve terms
23-16 expiring on August 31, 2000.
23-17 SECTION 21. FACILITY ON COUNTY OR MUNICIPAL ROAD. This Act
23-18 does not affect any contractual or statutory right of a county or
23-19 municipality to require an operator to relocate, replace, or repair
23-20 its underground facility.
23-21 SECTION 22. EFFECTIVE DATE; APPLICATION. This Act takes
23-22 effect September 1, 1997, and applies as follows:
23-23 (1) the powers and duties of the corporation under
23-24 Sections 5 and 10 of this Act apply only on and after November 1,
23-25 1997, except that:
23-26 (A) the corporation shall develop and implement
23-27 the processes required by Section 10(a) of this Act before March 1,
24-1 1998; and
24-2 (B) the corporation shall select vendors as
24-3 required by Sections 10(a)(4) and (5) of this Act before May 1,
24-4 1998;
24-5 (2) the initial fee due under Section 6(a) of this Act
24-6 is due January 15, 1998;
24-7 (3) registration is not required under Section
24-8 2(12)(C) of this Act until March 1, 1998;
24-9 (4) the duties of an operator under Section 7 of this
24-10 Act apply only on and after May 1, 1998;
24-11 (5) a fee is not due under Section 6(b) or (c) before
24-12 October 1, 1998; and
24-13 (6) the rights and duties provided by Sections 3, 4,
24-14 8, 9, 11, 12, 13, 14, 15, 16, 17, and 21 apply only on and after
24-15 October 1, 1998.
24-16 SECTION 23. EXISTING LAW. This Act does not affect any
24-17 civil remedy for personal injury or for property damage, including
24-18 any damage to an underground facility.
24-19 SECTION 24. EMERGENCY. The importance of this legislation
24-20 and the crowded condition of the calendars in both houses create an
24-21 emergency and an imperative public necessity that the
24-22 constitutional rule requiring bills to be read on three several
24-23 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2295 was passed by the House on May
1, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2295 on May 29, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2295 was passed by the Senate, with
amendments, on May 27, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor