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.