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.