75R10393 E
By Oakley, Carter, Keel H.B. No. 2295
Substitute the following for H.B. No. 2295:
By Oakley C.S.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 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, or storage of gas
3-1 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(g) 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) "Secured facility" means a parcel of land used
4-12 for commercial or industrial purposes that is surrounded entirely
4-13 by a fence or other means of preventing access, including a fence
4-14 with one or more gates that are locked at all times or monitored by
4-15 an individual who can prevent unauthorized access.
4-16 (16) "Underground facility" means a line, cable,
4-17 pipeline system, conduit, or structure that is located partially or
4-18 totally underground and that is used to produce, store, convey,
4-19 transmit, or distribute telecommunications, electricity, gas,
4-20 water, sewage, steam, or liquids such as petroleum, petroleum
4-21 products, or hazardous liquids.
4-22 SECTION 3. EXEMPTIONS. (a) The following are not subject
4-23 to this Act as underground facilities:
4-24 (1) an aboveground or underground storage tank, sump,
4-25 or impoundment or piping connected to an aboveground or underground
4-26 storage tank, sump, or impoundment located in the same tract of
4-27 land as the storage tank, sump, or impoundment;
5-1 (2) an underground facility operated by the owner of a
5-2 secured facility and located entirely within the secured facility;
5-3 (3) an underground facility that serves only the owner
5-4 of the underground facility or the owner's tenant and that is
5-5 located solely on the owner's property;
5-6 (4) piping within a well bore;
5-7 (5) the portion of an exploration and production
5-8 underground facility that is located in the boundaries of an oil or
5-9 gas field and that is not located:
5-10 (A) within a municipality;
5-11 (B) within the extraterritorial jurisdiction of
5-12 a municipality; or
5-13 (C) within the boundaries of an established
5-14 easement or right-of-way; and
5-15 (6) an underground facility that serves a cemetery and
5-16 is located solely on the cemetery's property.
5-17 (b) An operator of an underground facility that is exempted
5-18 under this section may voluntarily register that facility under
5-19 this Act but by doing so assumes the obligation to comply with all
5-20 the duties of an operator of a Class A underground facility under
5-21 this Act.
5-22 SECTION 4. COMPLIANCE BY PERMIT HOLDERS. (a) The fact that
5-23 a person has a legal permit, permission from the owner of the
5-24 property or the owner's licensee, or an easement to conduct
5-25 excavation operations does not affect the person's duty to comply
5-26 with this Act.
5-27 (b) Compliance with this Act does not affect a person's
6-1 responsibility to obtain a permit required by law.
6-2 SECTION 5. TEXAS UNDERGROUND FACILITY NOTIFICATION
6-3 CORPORATION. (a) The Texas Underground Facility Notification
6-4 Corporation is created to provide statewide notification services
6-5 under this Act.
6-6 (b) The corporation is a public nonprofit corporation and
6-7 has all the powers and duties incident to a nonprofit corporation
6-8 under the Texas Non-Profit Corporation Act (Article 1396-1.01, et
6-9 seq., Vernon's Texas Civil Statutes), except that the corporation:
6-10 (1) may not make donations for the public welfare or
6-11 for charitable, scientific, or educational purposes or in aid of
6-12 war activities;
6-13 (2) may not merge or consolidate with another
6-14 corporation;
6-15 (3) is not subject to voluntary or involuntary
6-16 dissolution; and
6-17 (4) may not be placed in receivership.
6-18 (c) The corporation is subject to Chapters 551 and 552,
6-19 Government Code, except that the corporation may not disseminate,
6-20 make available, or otherwise distribute service area map data or
6-21 information provided by an operator unless that action is necessary
6-22 to perform the corporation's specific obligations under this Act.
6-23 (d) All expenses of the corporation shall be paid from
6-24 income of the corporation. Liabilities created by the corporation
6-25 are not debts of the state, and the corporation may not secure any
6-26 liability with funds or assets of the state. Except as provided by
6-27 Section 6 of this Act, the corporation may not, for any reason,
7-1 impose an assessment, fee, or other charge, including a charge for
7-2 inputting data, against an operator.
7-3 (e) The corporation member operators are divided into
7-4 divisions according to type of operator. The divisions are:
7-5 (1) intrastate electric utilities;
7-6 (2) interstate electric utilities;
7-7 (3) electric cooperative corporations;
7-8 (4) local exchange telephone companies that have more
7-9 than 31,000 access lines in service in this state;
7-10 (5) interexchange telecommunications carriers;
7-11 (6) local exchange telephone companies that have
7-12 31,000 or fewer access lines in this state and telephone
7-13 cooperative corporations;
7-14 (7) gas distribution operators;
7-15 (8) intrastate gas transmission pipeline operators;
7-16 (9) interstate gas transmission pipeline operators;
7-17 (10) liquid pipeline operators;
7-18 (11) operators of Class B underground facilities that
7-19 elect to participate under this Act as a Class A facility;
7-20 (12) cable television companies that have fewer than
7-21 1,000 subscribers;
7-22 (13) cable television companies that have 1,000 or
7-23 more subscribers;
7-24 (14) municipalities with a population of less than
7-25 25,000 that operate a Class A underground facility; and
7-26 (15) municipalities with a population of 25,000 or
7-27 more that operate a Class A underground facility.
8-1 (f) The governor shall appoint from each division a
8-2 representative to serve on the board of directors of the
8-3 corporation. A member operator that has operations that can be
8-4 classified in more than one division is entitled to participate in
8-5 each applicable division. However, not more than one employee of
8-6 the operator may be appointed to serve on the board at any one
8-7 time. Board membership is voluntary and a director is not entitled
8-8 to receive compensation for serving on the board. Directors serve
8-9 staggered three-year terms, with the terms of five directors
8-10 expiring each August 31. A director serves until the director's
8-11 successor is appointed by the governor and assumes office. The
8-12 board may declare a director's office vacant if the director ceases
8-13 to be associated with an operator included in the division from
8-14 which the director was appointed. Not later than the 60th day
8-15 after the date a vacancy on the board is declared, the governor
8-16 shall appoint a person to fill the vacancy for the remainder of the
8-17 unexpired term.
8-18 (g) The board shall elect from among its directors a chair
8-19 and vice chair. The chair and vice chair serve for a term of one
8-20 year and may be re-elected.
8-21 (h) The corporation's bylaws must provide that each division
8-22 is entitled to one vote.
8-23 SECTION 6. FEES AND RATES. (a) Before January 15 of each
8-24 year, a Class A facility operator shall pay to the corporation a
8-25 fee of $50 for services to be performed by the corporation during
8-26 that calendar year. A fee for a part of a year may not be
8-27 prorated.
9-1 (b) Each time a notification center receives a call from an
9-2 excavator under Section 9(a) of this Act, the notification center
9-3 shall pay the corporation one cent. This charge shall be waived
9-4 for the remainder of any year in which the corporation receives
9-5 $500,000 under this subsection.
9-6 (c) The notification center shall charge an operator not
9-7 more than $1.25 for a call made to the system that affects the
9-8 operator. The board may increase or decrease the maximum charge
9-9 only on an affirmative vote of at least two-thirds of the total
9-10 number of votes entitled to be cast. A notification center may
9-11 petition the corporation for an increase in the maximum charge and
9-12 is entitled to the increase on proof that costs exceed the maximum
9-13 charge.
9-14 (d) The notification center may not charge an operator any
9-15 additional fee such as an initiation fee, a membership fee, or a
9-16 set-up fee.
9-17 SECTION 7. DUTY OF AN OPERATOR. (a) Each operator of a
9-18 Class A underground facility, including a political subdivision of
9-19 this state, shall participate in a notification center as a
9-20 condition of doing business in this state.
9-21 (b) Each operator of a Class A underground facility shall
9-22 provide to the notification center:
9-23 (1) maps or grid locations or other identifiers
9-24 determined by the operator indicating the location of the
9-25 operator's underground facilities;
9-26 (2) the name and telephone number of a contact person
9-27 or persons; and
10-1 (3) at least quarterly but, if possible, as those
10-2 changes occur, information relating to each change in the
10-3 operator's maps or grid locations or other identifiers or in the
10-4 person or persons designated as the operator's contact person or
10-5 persons.
10-6 (c) The notification center may not require an operator to
10-7 conduct a survey of the operator's underground facilities or alter
10-8 the operator's existing signage.
10-9 (d) An operator of a Class B underground facility may
10-10 voluntarily provide the information required by this section. A
10-11 Class B underground facility that provides the information shall be
10-12 treated as a Class A underground facility under this Act.
10-13 SECTION 8. DUTY OF NOTIFICATION CENTER. (a) Not later than
10-14 two hours after the time the notification center receives a notice
10-15 of intent to excavate from an excavator, the notification center
10-16 shall provide via high speed data transmission to every other
10-17 affected notification center operating in this state the
10-18 information required by Section 9(c) of this Act received from the
10-19 excavator.
10-20 (b) Not later than two hours after the time the notification
10-21 center receives a notice of intent to excavate from an excavator or
10-22 from a different notification center, the notification center shall
10-23 notify each member operator that may have an underground facility
10-24 in the vicinity of the proposed excavation operation.
10-25 (c) A notification center shall:
10-26 (1) operate 24 hours a day every day of the year;
10-27 (2) have the capability to receive emergency
11-1 information 24 hours a day from excavators and disseminate the
11-2 information as soon as it is received to the appropriate operators
11-3 and to all registered and affected notification centers operating
11-4 in this state;
11-5 (3) have the capacity to receive extraordinary
11-6 circumstance information 24 hours a day from operators and
11-7 disseminate the information as soon as it is received to all
11-8 registered and affected notification centers; and
11-9 (4) submit to the corporation, not later than May 15
11-10 of each year, a pro rata share of the expense, as established by
11-11 the corporation, of the statewide toll-free telephone number and
11-12 the call router.
11-13 (d) A notification center that notifies another notification
11-14 center under Subsection (c)(3) of this section shall recover an
11-15 amount not exceeding the actual cost of providing the notice from
11-16 the notification center receiving the notice.
11-17 (e) A notification center shall maintain for not less than
11-18 four years a record to document:
11-19 (1) the receipt of:
11-20 (A) a notice of intent to excavate;
11-21 (B) damage to an underground facility;
11-22 (C) an emergency excavation; and
11-23 (D) an extraordinary circumstance;
11-24 (2) the information the excavator is required to
11-25 provide to the notification center under this Act;
11-26 (3) contact with operators and other notification
11-27 centers; and
12-1 (4) the information the notification center provided
12-2 to the excavator.
12-3 (f) A notification center may not destroy records that
12-4 relate to any matter that is involved in litigation if the
12-5 notification center is placed on notice that the litigation has not
12-6 been finally resolved.
12-7 (g) A notification center shall, at all times, maintain a
12-8 minimum of $5 million professional liability and errors and
12-9 omissions insurance to cover duties prescribed by this Act.
12-10 (h) The notification center may not disseminate, make
12-11 available, or otherwise distribute maps or information provided by
12-12 an operator unless that action is necessary to perform the
12-13 notification center's specific obligations under this Act.
12-14 SECTION 9. DUTY OF AN EXCAVATOR. (a) Except as provided by
12-15 Sections 12 and 13 of this Act, a person who intends to excavate
12-16 shall notify a notification center not earlier than the 14th day
12-17 before the date the excavation is to begin or later than the 48th
12-18 hour before the time the excavation is to begin, excluding
12-19 Saturdays, Sundays, and legal holidays. The excavator may not
12-20 begin excavation before the time the excavation is to begin without
12-21 the prior written agreement of each operator that has an
12-22 underground facility in the area to be excavated. The person must
12-23 again notify a notification center of the intended excavation in
12-24 accordance with this subsection if the person does not begin the
12-25 excavation before the 15th day after the date the person notified
12-26 the notification center, excluding Saturdays, Sundays, and legal
12-27 holidays.
13-1 (b) Until the excavation is completed, the excavator must,
13-2 not later than the 30th day after the last notification, notify a
13-3 notification center by telephone that the excavator has not
13-4 completed the excavation, unless the excavator has provided each
13-5 operator who has underground facilities in the area notice of the
13-6 uncompleted excavation and agreed with each of those operators on a
13-7 schedule of underground facility marking.
13-8 (c) The notice required under this section shall include:
13-9 (1) the name of the person serving the notice;
13-10 (2) the specific location of the proposed area of
13-11 excavation, including:
13-12 (A) the street address, if available, and the
13-13 specific location of the excavation at the street address; or
13-14 (B) if there is no street address, an accurate
13-15 description of the excavation area using any available designations
13-16 such as the closest street, road, or intersection;
13-17 (3) the name, address, and telephone number of the
13-18 excavator or the excavator's company;
13-19 (4) the excavator's field telephone number, if one is
13-20 available;
13-21 (5) the starting date and time and the anticipated
13-22 completion date of excavation;
13-23 (6) the type and extent of the proposed work; and
13-24 (7) a statement as to whether explosives will be used.
13-25 (d) To have a representative present during the excavation,
13-26 the operator shall contact the excavator and advise the excavator
13-27 of the operator's intent to be present during excavation and
14-1 confirm the start time of the excavation. If the start time is
14-2 changed by the excavator, the excavator shall notify the operator
14-3 of the start time change. After being notified by the operator of
14-4 the intent to be present, the excavator may not begin excavation at
14-5 an earlier time than the confirmed start time without the
14-6 operator's agreement.
14-7 SECTION 10. DUTY OF THE TEXAS UNDERGROUND FACILITY
14-8 NOTIFICATION CORPORATION. (a) The corporation shall develop and
14-9 implement processes to:
14-10 (1) maintain a registration of notification centers as
14-11 provided by Section 2(12)(C) of this Act;
14-12 (2) establish minimum technical standards used by
14-13 notification centers;
14-14 (3) establish a statewide toll-free telephone number
14-15 to be used by excavators that incorporates the use of a call router
14-16 system that routes calls to the notification centers on a pro-rata
14-17 basis;
14-18 (4) oversee the bid process and select the vendor for
14-19 the statewide toll-free telephone number;
14-20 (5) oversee the bid process and select the vendor for
14-21 the call router system;
14-22 (6) determine before May 1 of each year the
14-23 cost-sharing between the notification centers of:
14-24 (A) the toll-free telephone number; and
14-25 (B) the call router system prescribed by Section
14-26 8(c)(4) of this Act;
14-27 (7) develop public service announcements to educate
15-1 the public about statewide one-call notification and its
15-2 availability;
15-3 (8) establish a format for information transfer among
15-4 notification centers other than high speed data transmission, if
15-5 appropriate;
15-6 (9) on a complaint concerning charges, investigate and
15-7 determine appropriate charges;
15-8 (10) recommend a civil penalty against a notification
15-9 center that does not meet the requirements of this Act of not less
15-10 than $1,000 or more than $5,000 for each violation;
15-11 (11) refer the recommended penalty to the attorney
15-12 general who shall institute a suit in a court of competent
15-13 jurisdiction to recover the penalty;
15-14 (12) assist in dispute resolution among notification
15-15 centers or between a notification center and an operator; and
15-16 (13) assist any operator who encounters difficulty in
15-17 joining a notification center.
15-18 (b) The corporation shall solicit proposals for the contract
15-19 to establish and operate the statewide toll-free telephone number
15-20 and the call router system by using a request for proposals process
15-21 that includes specifications that have been approved by the board
15-22 of directors in accordance with this Act.
15-23 (c) The corporation is not required to award the contract to
15-24 the lowest offeror if the terms of another proposal would result in
15-25 a lower annual cost and are more advantageous to the corporation
15-26 and its members. The corporation may reject all proposals if the
15-27 corporation finds that none of the proposals is acceptable. After
16-1 the proposals are opened, each document relating to the
16-2 consideration of a proposal or the award of a contract and the text
16-3 of the contract are considered books and records of the corporation
16-4 for the purposes of Article 2.23, Texas Non-Profit Corporation Act
16-5 (Article 1396-2.23, Vernon's Texas Civil Statutes).
16-6 SECTION 11. NOTIFICATION BY AN EXCAVATOR. (a) A person
16-7 required to provide notice under this Act is considered to have
16-8 provided the notice when the person delivers the required
16-9 information and a notification center receives that information
16-10 within the time limits prescribed by this Act.
16-11 (b) A person may deliver information required under this Act
16-12 by any appropriate method, including the use of any electronic
16-13 means of data transfer.
16-14 SECTION 12. EXCEPTION IN CASE OF EMERGENCY. (a) Section 9
16-15 of this Act does not apply to an emergency excavation that is
16-16 necessary to respond to a situation that endangers life, health, or
16-17 property or a situation in which the public need for service
16-18 compels immediate action.
16-19 (b) The excavator may begin emergency excavation under
16-20 Subsection (a) of this section immediately and shall take
16-21 reasonable precautions to protect underground facilities.
16-22 (c) When an emergency exists, the excavator shall notify a
16-23 notification center as promptly as reasonably possible.
16-24 SECTION 13. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. (a)
16-25 Section 9 of this Act does not apply to:
16-26 (1) interment operations of a cemetery;
16-27 (2) operations at a secured facility if:
17-1 (A) the excavator operates each underground
17-2 facility at the secured facility, other than those within a
17-3 third-party underground facility easement or right-of-way; and
17-4 (B) the excavation activity is not within a
17-5 third-party underground facility or right-of-way;
17-6 (3) routine railroad maintenance within 15 feet of
17-7 either side of the midline of the track if the maintenance will not
17-8 disturb the ground at a depth of more than 18 inches;
17-9 (4) activities performed on private property in
17-10 connection with agriculture operations, except that if a person
17-11 excepted by this subdivision elects to comply with this Act and the
17-12 operator fails to comply with this Act, the person is not liable to
17-13 the underground facility owner for damages to the underground
17-14 facility;
17-15 (5) operations associated with the exploration or
17-16 production of oil or gas if the operations are not conducted within
17-17 an underground facility easement or right-of-way; or
17-18 (6) excavations by or for a person that:
17-19 (A) owns, leases, or owns a mineral leasehold
17-20 interest in the real property on which the excavation occurs; and
17-21 (B) operates all underground facilities located
17-22 at the excavation site.
17-23 (b) This section does not affect any civil remedies
17-24 otherwise provided by law for personal injury or for property
17-25 damage, including any damage to an underground facility.
17-26 SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Not
17-27 later than the 48th hour after the time the excavator gives to the
18-1 notification system notice of intent to excavate, excluding
18-2 Saturdays, Sundays, and legal holidays, or at a time agreed to by
18-3 the operator and the excavator, the operator contacted by the
18-4 notification system shall locate and mark the approximate location
18-5 of its underground facilities at or near the site of the proposed
18-6 excavation if the operator believes that locating and marking the
18-7 location is necessary.
18-8 (b) For the purposes of this section, an excavator may
18-9 presume, unless the operator advises the excavator otherwise, that
18-10 the marking of an approximate location of an underground facility
18-11 is within 18 inches on either side of the underground facility.
18-12 (c) An operator shall refer to the American Public Works
18-13 Association color coding standards when marking.
18-14 SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
18-15 CIRCUMSTANCE. (a) The deadline prescribed by Section 14(a) of
18-16 this Act does not apply if the operator experiences an
18-17 extraordinary circumstance due to an act of God, including a
18-18 tornado, a hurricane, an ice storm, or a severe flood, or a war,
18-19 riot, work stoppage, or strike that limits personnel or resources
18-20 needed to fulfill its obligations under this Act.
18-21 (b) The operator shall notify a notification center of the
18-22 extraordinary circumstance and shall include in the notification:
18-23 (1) the nature and location of the extraordinary
18-24 circumstance;
18-25 (2) the expected duration of the situation and the
18-26 approximate time at which the operator will be able to resume
18-27 location request activities; and
19-1 (3) the name and telephone number of the individual
19-2 that the notification system can contact if there is an emergency
19-3 that requires the operator's immediate attention.
19-4 (c) In addition to the notification required by Subsection
19-5 (b) of this section, the operator shall also notify each excavator
19-6 that has a pending location request in the location where an
19-7 extraordinary circumstance is being experienced and shall include
19-8 in the notification:
19-9 (1) the fact that the operator is experiencing an
19-10 extraordinary circumstance; and
19-11 (2) the approximate time at which the operator will
19-12 mark the requested location.
19-13 (d) A notification center shall inform each excavator
19-14 notifying the system under Section 9 of this Act that the
19-15 operator's location request activities are suspended until the
19-16 extraordinary circumstance has discontinued or has been corrected
19-17 within the affected location.
19-18 SECTION 16. PRECAUTIONS TO AVOID DAMAGE TO FACILITIES. (a)
19-19 In addition to providing the notice required by Section 9 of this
19-20 Act, the excavator shall:
19-21 (1) plan the excavation to avoid damage to an
19-22 underground facility that is in or near the excavation area, taking
19-23 into consideration any necessary precautions identified by the
19-24 operator;
19-25 (2) maintain a clearance between the underground
19-26 facility and the cutting edge or point of mechanized equipment that
19-27 is reasonably necessary to avoid damage to the facility, as
20-1 provided by Subsection (b) of this section;
20-2 (3) provide support for an underground facility that
20-3 is reasonably necessary to protect the facility during the
20-4 excavation, including any backfill operations; and
20-5 (4) protect and preserve during excavation the marking
20-6 of the location of the underground facility until the marking is
20-7 not necessary for reasonably safe excavation.
20-8 (b) An excavator shall consider the known limit of control
20-9 of the cutting edge or point of a piece of mechanized equipment in
20-10 determining the necessary clearance that must be maintained with
20-11 uncovered surfaces and paved surfaces. If the centerline of the
20-12 underground facility is marked, the excavator shall use a clearance
20-13 of not less than 24 inches from the centerline. If the outer edges
20-14 of the underground facilities are marked by an operator, the
20-15 excavator shall use a clearance of not less than 24 inches from the
20-16 outer edge markings. An operator may agree that a smaller
20-17 clearance can safely be used. An operator may not reasonably
20-18 withhold an agreement to use a smaller clearance if the clearance
20-19 is reasonable. In determining if the clearance is reasonable, the
20-20 operator shall consider the method of excavation to be used and the
20-21 potential for damage, service interruption, and loss of revenue.
20-22 SECTION 17. EXCAVATION DAMAGE. (a) If an excavation
20-23 operation results in damage to an underground facility, the
20-24 excavator shall immediately contact the underground facility
20-25 operator to report the damage.
20-26 (b) If the excavator is not certain of the operator's
20-27 identity, the excavator shall contact a notification center to
21-1 report the damage, and the notification center shall immediately
21-2 notify all other affected notification centers. Immediately on
21-3 receiving notification, each notification center shall contact each
21-4 member operator that has underground facilities in or near the area
21-5 in which the damage occurred.
21-6 (c) Only the operator or a person authorized by the operator
21-7 may perform repairs.
21-8 (d) An excavator shall delay backfilling in the immediate
21-9 area of the damage until the damage is repaired unless the operator
21-10 authorizes the backfilling.
21-11 (e) If damage endangers life, health, or property because of
21-12 the presence of flammable material, the excavator shall keep
21-13 sources of ignition away.
21-14 SECTION 18. INJUNCTION. (a) An operator may file an action
21-15 in a district court for an injunction to enjoin excavation
21-16 conducted or anticipated to be conducted in violation of this Act.
21-17 (b) Venue for a suit brought under this section is in a
21-18 county in which all or part of the excavation occurs.
21-19 SECTION 19. CIVIL PENALTY. (a) An excavator that violates
21-20 this Act is liable for a civil penalty of not less than $100 or
21-21 more than $500. If it is found at the trial on a civil penalty
21-22 that the excavator has violated this Act and has been assessed a
21-23 penalty under this section one other time during the three years
21-24 preceding the date of the most recent violation, the excavator is
21-25 liable for a civil penalty of not less than $500 or more than
21-26 $1,000. If it is found at the trial on a civil penalty that the
21-27 excavator has violated this Act and has been assessed a penalty
22-1 under this section at least two other times during the three years
22-2 preceding the date of the most recent violation, the excavator is
22-3 liable for a civil penalty of not less than $1,000 or more than
22-4 $2,500.
22-5 (b) In assessing the penalty the court shall consider the
22-6 actual damage to the facility, the impact of the excavator's
22-7 actions on the public health and safety, whether the violation was
22-8 a wilful act, and any good faith of the excavator in attempting to
22-9 achieve compliance.
22-10 (c) Venue for a cause of action under this section is in the
22-11 county in which:
22-12 (1) all or part of the alleged violation occurred;
22-13 (2) the defendant has its principal place of business
22-14 in this state; or
22-15 (3) the defendant resides, if in this state.
22-16 (d) The appropriate county attorney or criminal district
22-17 attorney shall bring the action to recover the civil penalty at the
22-18 request of an operator.
22-19 (e) Fifty percent of the civil penalty collected under this
22-20 section shall be transferred to the county treasurer of the county
22-21 prosecuting the action and 50 percent of the civil penalty
22-22 collected under this section shall be transferred to the
22-23 corporation.
22-24 (f) The county treasurer shall deposit all money received
22-25 under this section in the general fund of the county.
22-26 (g) The corporation shall use the money received under this
22-27 section to develop public service announcements to educate the
23-1 public about the statewide one-call notification system and its
23-2 availability as prescribed by Section 10(a)(7) of this Act.
23-3 (h) Except as otherwise specifically provided in this Act,
23-4 this section does not affect any civil remedies otherwise provided
23-5 by law for personal injury or for property damage, including any
23-6 damage to an underground facility.
23-7 SECTION 20. EXISTING NOTIFICATION CENTERS. A notification
23-8 center operating on the effective date of this Act may continue to
23-9 operate if the notification center complies with this Act.
23-10 SECTION 21. INITIAL DIRECTORS. (a) The governor shall
23-11 appoint the initial directors under Section 5 of this Act before
23-12 November 1, 1997.
23-13 (b) The initial terms of directors appointed to represent a
23-14 division under Sections 5(e)(1), (4), (7), (10), and (13) of this
23-15 Act expire August 31, 1998. The initial terms of directors
23-16 appointed to represent a division under Sections 5(e)(2), (5), (8),
23-17 (11), and (14) of this Act expire August 31, 1999. The initial
23-18 terms of directors appointed to represent a division under Sections
23-19 5(e)(3), (6), (9), (12), and (15) of this Act expire August 31,
23-20 2000.
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, 18, and 19 apply only on and
24-15 after October 1, 1998.
24-16 SECTION 23. EMERGENCY. The importance of this legislation
24-17 and the crowded condition of the calendars in both houses create an
24-18 emergency and an imperative public necessity that the
24-19 constitutional rule requiring bills to be read on three several
24-20 days in each house be suspended, and this rule is hereby suspended.