1-1     By:  Oakley, Carter, Keel, et al.                     H.B. No. 2295

 1-2          (Senate Sponsor - Cain)

 1-3           (In the Senate - Received from the House May 2, 1997;

 1-4     May 5, 1997, read first time and referred to Committee on State

 1-5     Affairs; May 18, 1997, reported adversely, with favorable Committee

 1-6     Substitute by the following vote:  Yeas 12, Nays 0; May 18, 1997,

 1-7     sent to printer.)

 1-8     COMMITTEE SUBSTITUTE FOR H.B. No. 2295                    By:  Cain

 1-9                            A BILL TO BE ENTITLED

1-10                                   AN ACT

1-11     relating to excavation operations that may damage underground

1-12     facilities; providing civil and criminal penalties.

1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-14           SECTION 1.  SHORT TITLE.  This Act may be cited as the

1-15     Underground Facility Damage Prevention and Safety Act.

1-16           SECTION 2.  DEFINITIONS.  In this Act:

1-17                 (1)  "Agricultural operations" means activities

1-18     performed on land and described by Section 23.51(2), Tax Code.

1-19                 (2)  "Class A underground facility" means an

1-20     underground facility that is used to produce, store, convey,

1-21     transmit, or distribute:

1-22                       (A)  electrical energy;

1-23                       (B)  natural or synthetic gas;

1-24                       (C)  petroleum or petroleum products;

1-25                       (D)  steam;

1-26                       (E)  any form of telecommunications service,

1-27     including voice, data, video, or optical transmission, or cable

1-28     television service; or

1-29                       (F)  any other liquid, material, or product not

1-30     defined as a Class B underground facility.

1-31                 (3)  "Class B underground facility" means an

1-32     underground facility that is used to produce, store, convey,

1-33     transmit, or distribute:

1-34                       (A)  water;

1-35                       (B)  slurry; or

1-36                       (C)  sewage.

1-37                 (4)  "Corporation" means the Texas Underground Facility

1-38     Notification Corporation created by this Act.

1-39                 (5)  "Damage" means:

1-40                       (A)  the defacing, scraping, displacement,

1-41     penetration, destruction, or partial or complete severance of an

1-42     underground facility or of any protective coating, housing, or

1-43     other protective device of an underground facility;

1-44                       (B)  the weakening of structural or lateral

1-45     support of an underground facility; or

1-46                       (C)  the failure to properly replace the backfill

1-47     covering an underground facility.

1-48                 (6)  "Excavate" or "excavation" means to use explosives

1-49     or a motor, engine, hydraulic or pneumatically powered tool, or

1-50     other machine-powered equipment of any kind and includes auguring,

1-51     backfilling, boring, compressing, digging, ditching, drilling,

1-52     dragging, dredging, grading, mechanical probing, plowing-in,

1-53     pulling-in, ripping, scraping, trenching, and tunneling to remove

1-54     or otherwise disturb soil to a depth of 16 or more inches.

1-55                 (7)  "Excavator" means a person that excavates or

1-56     intends to excavate in this state.

1-57                 (8)  "Exploration and production underground facility"

1-58     means an underground facility used by a person producing gas or

1-59     oil, or both, for the production of that gas or oil, including

1-60     facilities used for field separation, treatment, gathering, or

1-61     storage of gas or oil.

1-62                 (9)  "High speed data transmission" means a method of

1-63     data transmission that does not include facsimile or voice

1-64     transmission.

 2-1                 (10)  "Legal holiday" means a holiday specified as a

 2-2     legal holiday by Subchapter B, Chapter 662, Government Code.

 2-3                 (11)  "Mechanized equipment" means equipment operated

 2-4     by mechanical power, including a trencher, bulldozer, power shovel,

 2-5     auger, backhoe, scraper, drill, cable or pipe plow, and other

 2-6     equipment used to plow in or pull in cable or pipe.

 2-7                 (12)  "Notification center" means a legal entity that:

 2-8                       (A)  operates a notification system capable of

 2-9     serving excavators and operators statewide;

2-10                       (B)  is created to:

2-11                             (i)  receive notification of an intent to

2-12     excavate and of damage to an underground facility and disseminate

2-13     that information to member operators that may be affected by the

2-14     excavation or damage and to other notification centers operating in

2-15     this state; and

2-16                             (ii)  receive notification of an

2-17     extraordinary circumstance and disseminate that information to

2-18     member operators and to other notification centers operating in

2-19     this state; and

2-20                       (C)  registers the following information with the

2-21     corporation:

2-22                             (i)  its name, address, and telephone

2-23     number;

2-24                             (ii)  the name of a contact person;

2-25                             (iii)  a statement of compliance with

2-26     Section 8(h) of this Act; and

2-27                             (iv)  a listing of the counties in which it

2-28     operates.

2-29                 (13)  "Operator" means a person that operates an

2-30     underground facility.

2-31                 (14)  "Person" means an individual, corporation,

2-32     partnership, association, government or governmental subdivision or

2-33     agency, or other legal entity.

2-34                 (15)  "Routine maintenance" means operations, not to

2-35     exceed 24 inches in depth, within a road or drainage ditch

2-36     involving grading and removal or replacement of pavement and

2-37     structures.

2-38                 (16)  "Secured facility" means a parcel of land used

2-39     for commercial or industrial purposes that is surrounded entirely

2-40     by a fence or other means of preventing access, including a fence

2-41     with one or more gates that are locked at all times or monitored by

2-42     an individual who can prevent unauthorized access.

2-43                 (17)  "Underground facility" means a line, cable,

2-44     pipeline system, conduit, or structure that is located partially or

2-45     totally underground and that is used to produce, store, convey,

2-46     transmit, or distribute telecommunications, electricity, gas,

2-47     water, sewage, steam, or liquids such as petroleum, petroleum

2-48     products, or hazardous liquids.

2-49                 (18)  "Saturday notification" means a notice of intent

2-50     to excavate provided by an excavator to a notification center on a

2-51     Saturday before 11:59 a.m.

2-52           SECTION 3.  EXEMPTIONS.  (a)  The following are not subject

2-53     to this Act as underground facilities:

2-54                 (1)  an aboveground or underground storage tank, sump,

2-55     or impoundment or piping connected to an aboveground or underground

2-56     storage tank, sump, or impoundment located in the same tract of

2-57     land as the storage tank, sump, or impoundment;

2-58                 (2)  an underground facility operated by the owner of a

2-59     secured facility and located entirely within the secured facility;

2-60                 (3)  an underground facility that serves only the owner

2-61     of the underground facility or the owner's tenant and that is

2-62     located solely on the owner's property;

2-63                 (4)  piping within a well bore;

2-64                 (5)  the portion of an exploration and production

2-65     underground facility that is located within the boundaries of the

2-66     oil or gas field from which the oil and gas is produced and that is

2-67     not located in the boundaries of an established easement or

2-68     right-of-way granted for the benefit of a governmental entity or a

2-69     private entity if the easement or right-of-way is granted for a

 3-1     public purpose; or

 3-2                 (6)  an underground facility that serves a cemetery and

 3-3     is located solely on the cemetery's property.

 3-4           (b)  An operator of an underground facility that is exempted

 3-5     under this section may voluntarily convert that facility to a Class

 3-6     A underground facility by sending written communication from a

 3-7     competent authority of the operator to the Texas Underground

 3-8     Facility Notification Corporation advising of the status change.

 3-9           (c)  The provisions of this Act are inapplicable to

3-10     contractors working in the public right-of-way pursuant to a

3-11     contract with the Texas Department of Transportation.

3-12           (d)  Excavation by an employee of the Texas Department of

3-13     Transportation on a segment of the state highway system is not

3-14     subject to this Act, provided that such excavation is:

3-15                 (1)  less than 24 inches in depth; and

3-16                 (2)  more than 10 feet from the right-of-way line.

3-17           SECTION 4.  COMPLIANCE BY PERMIT HOLDERS.  (a)  The fact that

3-18     a person has a legal permit, permission from the owner of the

3-19     property or the owner's licensee, or an easement to conduct

3-20     excavation operations does not affect the person's duty to comply

3-21     with this Act.

3-22           (b)  Compliance with this Act does not affect a person's

3-23     responsibility to obtain a permit required by law.

3-24           SECTION 5.  TEXAS UNDERGROUND FACILITY NOTIFICATION

3-25     CORPORATION.  (a)  The Texas Underground Facility Notification

3-26     Corporation is created to provide statewide notification services

3-27     under this Act.

3-28           (b)  The corporation is a public nonprofit corporation and

3-29     has all the powers and duties incident to a nonprofit corporation

3-30     under the Texas Non-Profit Corporation Act (Article 1396-1.01, et

3-31     seq., Vernon's Texas Civil Statutes), except that the corporation:

3-32                 (1)  may not make donations for the public welfare or

3-33     for charitable, scientific, or educational purposes or in aid of

3-34     war activities;

3-35                 (2)  may not merge or consolidate with another

3-36     corporation;

3-37                 (3)  is not subject to voluntary or involuntary

3-38     dissolution; and

3-39                 (4)  may not be placed in receivership.

3-40           (c)  The corporation is subject to Chapters 551 and 552,

3-41     Government Code, except that the corporation may not disseminate,

3-42     make available, or otherwise distribute service area map data or

3-43     information provided by an operator unless that action is necessary

3-44     to perform the corporation's specific obligations under this Act.

3-45           (d)  All expenses of the corporation shall be paid from

3-46     income of the corporation.  Liabilities created by the corporation

3-47     are not debts of the state, and the corporation may not secure any

3-48     liability with funds or assets of the state.  Except as provided by

3-49     Section 6 of this Act, the corporation may not, for any reason,

3-50     impose an assessment, fee, or other charge, including a charge for

3-51     inputting data, against an operator.

3-52           (e)  The corporation member operators are divided into

3-53     divisions according to type of operator.  The divisions are:

3-54                 (1)  intrastate electric utilities;

3-55                 (2)  interstate electric utilities;

3-56                 (3)  electric cooperative corporations;

3-57                 (4)  local exchange telephone companies that have more

3-58     than 31,000 access lines in service in this state;

3-59                 (5)  interexchange telecommunications carriers;

3-60                 (6)  local exchange telephone companies that have

3-61     31,000 or fewer access lines in this state and telephone

3-62     cooperative corporations;

3-63                 (7)  gas distribution operators;

3-64                 (8)  intrastate gas transmission pipeline operators;

3-65                 (9)  interstate gas transmission pipeline operators;

3-66                 (10)  liquid pipeline operators;

3-67                 (11)  operators of Class B underground facilities that

3-68     elect to participate under this Act as a Class A facility;

3-69                 (12)  cable television companies that have fewer than

 4-1     1,000 subscribers;

 4-2                 (13)  cable television companies that have 1,000 or

 4-3     more subscribers;

 4-4                 (14)  political subdivisions with a population of less

 4-5     than 25,000 that operate a Class A underground facility; and

 4-6                 (15)  political subdivisions with a population of

 4-7     25,000 or more that operate a Class A underground facility.

 4-8           (f)  The governor shall appoint from each division a

 4-9     representative to serve on the board of directors of the

4-10     corporation.  A member operator that has operations that can be

4-11     classified in more than one division is entitled to participate in

4-12     each applicable division.  However, not more than one employee of

4-13     the operator may be appointed to serve on the board at any one

4-14     time.  Board membership is voluntary and a director is not entitled

4-15     to receive compensation for serving on the board.  Directors serve

4-16     staggered three-year terms, with the terms of five directors

4-17     expiring each August 31.  A director serves until the director's

4-18     successor is appointed by the governor and assumes office.  The

4-19     board may declare a director's office vacant if the director ceases

4-20     to be associated with an operator included in the division from

4-21     which the director was appointed.  Not later than the 60th day

4-22     after the date a vacancy on the board is declared, the governor

4-23     shall appoint a person to fill the vacancy for the remainder of the

4-24     unexpired term.

4-25           (g)  The board shall elect from among its directors a chair

4-26     and vice chair.  The chair and vice chair serve for a term of one

4-27     year and may be re-elected.

4-28           (h)  The corporation's bylaws must provide that each division

4-29     is entitled to one vote.

4-30           SECTION 6.  FEES AND RATES.  (a)  Before January 15 of each

4-31     year, a Class A facility operator shall pay to the corporation a

4-32     fee of $50 for services to be performed by the corporation during

4-33     that calendar year.  A fee for a part of a year may not be

4-34     prorated.

4-35           (b)  Each time a notification center receives a call from an

4-36     excavator under Section 9(a) of this Act, the notification center

4-37     shall pay the corporation one cent.  This charge shall be waived

4-38     for the remainder of any year in which the corporation receives

4-39     $500,000 under this subsection.

4-40           (c)  The notification center shall charge a Class A

4-41     underground facility operator not more than $1.25 for a call made

4-42     to the system that affects the operator.  The board may increase or

4-43     decrease the maximum charge only on an affirmative vote of at least

4-44     two-thirds of the total number of votes entitled to be cast.  A

4-45     notification center may petition the corporation for an increase in

4-46     the maximum charge and is entitled to the increase on proof that

4-47     costs exceed the maximum charge.

4-48           (d)  The notification center may not charge an operator any

4-49     additional fee such as an initiation fee, a membership fee, or a

4-50     set-up fee.

4-51           SECTION 7.  DUTY OF AN OPERATOR.  (a)  Each operator of a

4-52     Class A underground facility, including a political subdivision of

4-53     this state, shall participate in a notification center as a

4-54     condition of doing business in this state.

4-55           (b)  Each operator of a Class A underground facility shall

4-56     provide to the notification center:

4-57                 (1)  maps or grid locations or other identifiers

4-58     determined by the operator indicating the location of the

4-59     operator's underground facilities;

4-60                 (2)  the name and telephone number of a contact person

4-61     or persons; and

4-62                 (3)  at least quarterly but, if possible, as those

4-63     changes occur, information relating to each change in the

4-64     operator's  maps or grid locations or other identifiers or in the

4-65     person or persons designated as the operator's contact person or

4-66     persons.

4-67           (c)  The notification center may not require an operator to

4-68     conduct a survey of the operator's underground facilities or alter

4-69     the operator's existing signage.

 5-1           (d)  An operator of a Class B underground facility may

 5-2     voluntarily convert to a Class A underground facility operator by

 5-3     sending written communication from a competent authority of the

 5-4     operator to the Texas Underground Facility Notification Corporation

 5-5     advising of the status change.

 5-6           SECTION 8.  DUTY OF NOTIFICATION CENTER.  (a)  At the time an

 5-7     excavator provides a notification center with the excavator's

 5-8     intent to excavate, the notification center shall advise the

 5-9     excavator that water, slurry, and sewage underground facilities in

5-10     the area of the proposed excavation may not receive information

5-11     concerning the excavator's proposed excavation.

5-12           (b)  Not later than two hours after the time the notification

5-13     center receives a notice of intent to excavate from an excavator,

5-14     the notification center shall provide via high speed data

5-15     transmission to every other affected notification center operating

5-16     in this state the information required by Section 9(b) of this Act

5-17     received from the excavator.

5-18           (c)  Not later than two hours after the time the notification

5-19     center receives a notice of intent to excavate from an excavator or

5-20     from a different notification center, the notification center shall

5-21     notify each member operator that may have an underground facility

5-22     in the vicinity of the proposed excavation operation.

5-23           (d)  A notification center shall:

5-24                 (1)  operate 24 hours a day every day of the year;

5-25                 (2)  have the capability to receive emergency

5-26     information 24 hours a day from excavators and disseminate the

5-27     information as soon as it is received to the appropriate operators

5-28     and to all registered and affected notification centers operating

5-29     in this state;

5-30                 (3)  have the capacity to receive extraordinary

5-31     circumstance information 24 hours a day from operators and

5-32     disseminate the information as soon as it is received to all

5-33     registered and affected notification centers; and

5-34                 (4)  submit to the corporation, not later than May 15

5-35     of each year, a pro rata share of the expense, as established by

5-36     the corporation, of the statewide toll-free telephone number and

5-37     the call router.

5-38           (e)  A notification center that notifies another notification

5-39     center under Subsection (d)(2) or (d)(3) of this section shall

5-40     recover an amount not exceeding the actual cost of providing the

5-41     notice from the notification center receiving the notice.

5-42           (f)  A notification center shall maintain for not less than

5-43     four years a record to document:

5-44                 (1)  the receipt of:

5-45                       (A)  a notice of intent to excavate;

5-46                       (B)  damage to an underground facility;

5-47                       (C)  an emergency excavation; and

5-48                       (D)  an extraordinary circumstance;

5-49                 (2)  the information the excavator is required to

5-50     provide to the notification center under this Act;

5-51                 (3)  contact with operators and other notification

5-52     centers; and

5-53                 (4)  the information the notification center provided

5-54     to the excavator.

5-55           (g)  A notification center may not destroy records that

5-56     relate to any matter that is involved in litigation if the

5-57     notification center is placed on notice that the litigation has not

5-58     been finally resolved.

5-59           (h)  A notification center shall, at all times, maintain a

5-60     minimum of $5 million professional liability and errors and

5-61     omissions insurance to cover duties prescribed by this Act.

5-62           (i)  The notification center may not disseminate, make

5-63     available, or otherwise distribute maps or information provided by

5-64     an operator unless that action is necessary to perform the

5-65     notification center's specific obligations under this Act.

5-66           SECTION 9.  DUTY OF AN EXCAVATOR.  (a)  Except as provided by

5-67     Sections 12 and 13 of this Act, a person who intends to excavate

5-68     shall notify a notification center not earlier than the 14th day

5-69     before the date the excavation is to begin or later than the 48th

 6-1     hour before the time the excavation is to begin, excluding

 6-2     Saturdays, Sundays, and legal holidays.  Provided, however, if an

 6-3     excavator makes a Saturday notification, then the excavator can

 6-4     begin the excavation the following Tuesday at 11:59 a.m. unless the

 6-5     intervening Monday is a holiday.  If the intervening Monday is a

 6-6     holiday, then the excavator can begin the excavation the following

 6-7     Wednesday at 11:59 a.m.  The excavator may not begin excavation

 6-8     before the time the excavation is to begin without the prior

 6-9     written agreement of each operator that has an underground facility

6-10     in the area to be excavated.  The person must again notify a

6-11     notification center of the intended excavation in accordance with

6-12     this subsection if the person does not begin the excavation before

6-13     the 15th day after the date the person notified the notification

6-14     center, excluding Saturdays, Sundays, and legal holidays.

6-15           (b)  The notice required under this section shall include:

6-16                 (1)  the name of the person serving the notice;

6-17                 (2)  the location of the proposed area of excavation,

6-18     including:

6-19                       (A)  the street address, if available, and the

6-20     location of the excavation at the street address; or

6-21                       (B)  if there is no street address, an accurate

6-22     description of the excavation area using any available designations

6-23     such as the closest street, road, or intersection;

6-24                 (3)  the name, address, and telephone number of the

6-25     excavator or the excavator's company;

6-26                 (4)  the excavator's field telephone number, if one is

6-27     available;

6-28                 (5)  the starting date and time and the anticipated

6-29     completion date of excavation; and

6-30                 (6)  a statement as to whether explosives will be used.

6-31           (c)  To have a representative present during the excavation,

6-32     the operator shall contact the excavator and advise the excavator

6-33     of the operator's intent to be present during excavation and

6-34     confirm the start time of the excavation.  If the start time is

6-35     changed by the excavator, the excavator shall notify the operator

6-36     of the start time change.  After being notified by the operator of

6-37     the intent to be present, the excavator may not begin excavation at

6-38     an earlier time than the confirmed start time without the

6-39     operator's agreement.

6-40           SECTION 10.  DUTY OF THE TEXAS UNDERGROUND FACILITY

6-41     NOTIFICATION CORPORATION.  (a)  The corporation shall develop and

6-42     implement processes to:

6-43                 (1)  maintain a registration of:

6-44                       (A)  notification centers as provided by Section

6-45     2(12)(C) of this Act;

6-46                       (B)  operators who elect to convert facilities to

6-47     Class A facilities under Section 3(b) of this Act; or

6-48                       (C)  operators who elect to become Class A

6-49     underground facility operators under Section 7(d) of this Act;

6-50                 (2)  establish minimum technical standards used by

6-51     notification centers;

6-52                 (3)  establish a statewide toll-free telephone number

6-53     to be used by excavators that incorporates the use of a call router

6-54     system that routes calls to the notification centers on a pro rata

6-55     basis;

6-56                 (4)  oversee the bid process and select the vendor for

6-57     the statewide toll-free telephone number;

6-58                 (5)  oversee the bid process and select the vendor for

6-59     the call router system;

6-60                 (6)  determine before May 1 of each year the

6-61     cost-sharing between the notification centers of:

6-62                       (A)  the toll-free telephone number; and

6-63                       (B)  the call router system prescribed by Section

6-64     8(d)(4) of this Act;

6-65                 (7)  develop public service announcements to educate

6-66     the public about statewide one-call notification and its

6-67     availability;

6-68                 (8)  establish a format for information transfer among

6-69     notification centers other than high speed data transmission, if

 7-1     appropriate;

 7-2                 (9)  on a complaint concerning charges, investigate and

 7-3     determine appropriate charges;

 7-4                 (10)  recommend a civil penalty against a notification

 7-5     center that does not meet the requirements of this Act of not less

 7-6     than $1,000 or more than $5,000 for each violation;

 7-7                 (11)  refer the recommended penalty to the attorney

 7-8     general who shall institute a suit in a court of competent

 7-9     jurisdiction to recover the penalty;

7-10                 (12)  assist in dispute resolution among notification

7-11     centers or between a notification center and an operator; and

7-12                 (13)  assist any operator who encounters difficulty in

7-13     joining a notification center.

7-14           (b)  The corporation shall solicit proposals for the contract

7-15     to establish and operate the statewide toll-free telephone number

7-16     and the call router system by using a request for proposals process

7-17     that includes specifications that have been approved by the board

7-18     of directors in accordance with this Act.

7-19           (c)  The corporation is not required to award the contract to

7-20     the lowest offeror if the terms of another proposal would result in

7-21     a lower annual cost and are more advantageous to the corporation

7-22     and its members.  The corporation may reject all proposals if the

7-23     corporation finds that none of the proposals is acceptable.  After

7-24     the proposals are opened, each document relating to the

7-25     consideration of a proposal or the award of a contract and the text

7-26     of the contract are considered books and records of the corporation

7-27     for the purposes of Article 2.23, Texas Non-Profit Corporation Act

7-28     (Article 1396-2.23, Vernon's Texas Civil Statutes).

7-29           SECTION 11.  NOTIFICATION BY AN EXCAVATOR.  (a)  A person

7-30     required to provide notice under this Act is considered to have

7-31     provided the notice when the person delivers the required

7-32     information and a notification center receives that information

7-33     within the time limits prescribed by this Act.

7-34           (b)  A person may deliver information required under this Act

7-35     by any appropriate method, including the use of any electronic

7-36     means of data transfer.

7-37           SECTION 12.  EXCEPTION IN CASE OF EMERGENCY.  (a)  Section 9

7-38     of this Act does not apply to an emergency excavation that is

7-39     necessary to respond to a situation that endangers life, health, or

7-40     property or a situation in which the public need for service

7-41     compels immediate action.

7-42           (b)  The excavator may begin emergency excavation under

7-43     Subsection (a) of this section immediately and shall take

7-44     reasonable precautions to protect underground facilities.

7-45           (c)  When an emergency exists, the excavator shall notify a

7-46     notification center as promptly as reasonably possible.

7-47           SECTION 13.  OTHER EXCEPTIONS TO DUTY OF EXCAVATORS.  Section

7-48     9 of this Act does not apply to:

7-49                 (1)  interment operations of a cemetery;

7-50                 (2)  operations at a secured facility if:

7-51                       (A)  the excavator operates each underground

7-52     facility at the secured facility, other than those within a

7-53     third-party underground facility easement or right-of-way; and

7-54                       (B)  the excavation activity is not within a

7-55     third-party underground facility or right-of-way;

7-56                 (3)  routine railroad maintenance within 15 feet of

7-57     either side of the midline of the track if the maintenance will not

7-58     disturb the ground at a depth of more than 18 inches;

7-59                 (4)  activities performed on private property in

7-60     connection with agriculture operations, except that if a person

7-61     excepted by this subdivision elects to comply with this Act and the

7-62     operator fails to comply with this Act, the person is not liable to

7-63     the underground facility owner for damages to the underground

7-64     facility;

7-65                 (5)  operations associated with the exploration or

7-66     production of oil or gas if the operations are not conducted within

7-67     an underground facility easement or right-of-way;

7-68                 (6)  excavations by or for a person that:

7-69                       (A)  owns, leases, or owns a mineral leasehold

 8-1     interest in the real property on which the excavation occurs; and

 8-2                       (B)  operates all underground facilities located

 8-3     at the excavation site; or

 8-4                 (7)  routine maintenance by a county employee on a

 8-5     county road right-of-way to a depth of not more than 24 inches.

 8-6           SECTION 14.  DUTY OF OPERATOR TO PERSON EXCAVATING.  (a)  Not

 8-7     later than the 48th hour after the time the excavator gives to the

 8-8     notification system notice of intent to excavate, excluding

 8-9     Saturdays, Sundays, and legal holidays, 11:59 a.m.  on the Tuesday

8-10     following a Saturday notification unless the intervening Monday is

8-11     a holiday, 11:59 a.m. on the Wednesday following a Saturday

8-12     notification if the intervening Monday is a holiday, or at a time

8-13     agreed to by the operator and the excavator, each Class A

8-14     underground facility operator contacted by the notification system

8-15     shall mark the approximate location of its underground facilities

8-16     at or near the site of the proposed excavation if the operator

8-17     believes that marking the location is necessary.

8-18           (b)  For the purposes of this section, an excavator may

8-19     presume, unless the operator advises the excavator otherwise, that

8-20     the marking of an approximate location of an underground facility

8-21     is within 18 inches on either side of the underground facility.

8-22           (c)  An operator shall refer to the American Public Works

8-23     Association color coding standards when marking.

8-24           (d)  An excavator who has fully complied with this Act may

8-25     not be liable for damage to an underground facility that was not

8-26     marked in accordance with this Act.

8-27           SECTION 15.  DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY

8-28     CIRCUMSTANCE.  (a)  The deadline prescribed by Section 14(a) of

8-29     this Act does not apply if the operator experiences an

8-30     extraordinary circumstance due to an act of God, including a

8-31     tornado, a hurricane, an ice storm, or a severe flood, or a war,

8-32     riot, work stoppage, or strike that limits personnel or resources

8-33     needed to fulfill its obligations under this Act.

8-34           (b)  The operator shall notify a notification center of the

8-35     extraordinary circumstance and shall include in the notification:

8-36                 (1)  the nature and location of the extraordinary

8-37     circumstance;

8-38                 (2)  the expected duration of the situation and the

8-39     approximate time at which the operator will be able to resume

8-40     location request activities; and

8-41                 (3)  the name and telephone number of the individual

8-42     that the notification system can contact if there is an emergency

8-43     that requires the operator's immediate attention.

8-44           (c)  In addition to the notification required by Subsection

8-45     (b) of this section, the operator shall also notify each excavator

8-46     that has a pending location request in the location where an

8-47     extraordinary circumstance is being experienced and shall include

8-48     in the notification:

8-49                 (1)  the fact that the operator is experiencing an

8-50     extraordinary circumstance; and

8-51                 (2)  the approximate time at which the operator will

8-52     mark the requested location.

8-53           (d)  A notification center shall inform each excavator

8-54     notifying the system under Section 9 of this Act that the

8-55     operator's location request activities are suspended until the

8-56     extraordinary circumstance has discontinued or has been corrected

8-57     within the affected location.

8-58           (e)  An excavator is relieved from all provisions of this Act

8-59     until such time as the operator notifies the notification center

8-60     that the operator has resumed location request activities within

8-61     the affected location.

8-62           SECTION 16.  PRECAUTIONS TO AVOID DAMAGE TO FACILITIES.  (a)

8-63     In addition to providing the notice required by Section 9 of this

8-64     Act, the excavator shall:

8-65                 (1)  provide support for each marked underground

8-66     facility that is reasonably necessary to protect the facility

8-67     during the excavation, including any backfill operations; and

8-68                 (2)  protect and preserve during excavation the marking

8-69     of the location of the underground facility until the marking is

 9-1     not necessary for reasonably safe excavation.

 9-2           (b)  An excavator shall consider the known limit of control

 9-3     of the cutting edge or point of a piece of mechanized equipment in

 9-4     determining the necessary clearance that must be maintained with

 9-5     uncovered surfaces and paved surfaces.  If the centerline of the

 9-6     underground facility is marked, the excavator shall use a clearance

 9-7     of not less than 24 inches from the centerline.  If the outer edges

 9-8     of the underground facilities are marked by an operator, the

 9-9     excavator shall use a clearance of not less than 24 inches from the

9-10     outer edge markings.  An operator may agree that a smaller

9-11     clearance can safely be used.  An operator may not reasonably

9-12     withhold an agreement to use a smaller clearance if the clearance

9-13     is reasonable.  In determining if the clearance is reasonable, the

9-14     operator shall consider the method of excavation to be used and the

9-15     potential for damage, service interruption, and loss of revenue.

9-16           SECTION 17.  EXCAVATION DAMAGE.  (a)  If an excavation

9-17     operation results in damage to an underground facility, the

9-18     excavator shall immediately contact the underground facility

9-19     operator to report the damage.

9-20           (b)  If the excavator is not certain of the operator's

9-21     identity, the excavator shall contact a notification center to

9-22     report the damage, and the notification center shall immediately

9-23     notify all other affected notification centers.  Immediately on

9-24     receiving notification, each notification center shall contact each

9-25     member operator that has underground facilities in or near the area

9-26     in which the damage occurred.

9-27           (c)  Only the operator or a person authorized by the operator

9-28     may perform repairs, and the repairs must be made in an expeditious

9-29     manner.

9-30           (d)  An excavator shall delay backfilling in the immediate

9-31     area of the damage until the damage is repaired unless the operator

9-32     authorizes the backfilling.

9-33           (e)  If damage endangers life, health, or property because of

9-34     the presence of flammable material, the excavator shall keep

9-35     sources of ignition away.

9-36           SECTION 18.  INJUNCTION.  (a)  An operator may file an action

9-37     in a district court for an injunction to enjoin excavation

9-38     conducted or anticipated to be conducted in violation of this Act.

9-39           (b)  Venue for a suit brought under this section is in a

9-40     county in which all or part of the excavation occurs.

9-41           SECTION 19.  CIVIL PENALTY.  (a)  An excavator that violates

9-42     either Section 9 or Section 17 of this Act is liable for a civil

9-43     penalty of not less than $100 or more than $500.  If it is found at

9-44     the trial on a civil penalty that the excavator has violated this

9-45     Act and has been assessed a penalty under this section one other

9-46     time during the three years preceding the date of the most recent

9-47     violation, the excavator is liable for a civil penalty of not less

9-48     than $500 or more than $1,000.  If it is found at the trial on a

9-49     civil penalty that the excavator has violated this Act and has been

9-50     assessed a penalty under this section at least two other times

9-51     during the three years preceding the date of the most recent

9-52     violation, the excavator is liable for a civil penalty of not less

9-53     than $1,000 or more than $2,500.

9-54           (b)  In assessing the penalty the court shall consider the

9-55     actual damage to the facility, the impact of the excavator's

9-56     actions on the public health and safety, whether the violation was

9-57     a wilful act, and any good faith of the excavator in attempting to

9-58     achieve compliance.

9-59           (c)  Venue for a proceeding under this section is in the

9-60     county in which:

9-61                 (1)  all or part of the alleged violation occurred;

9-62                 (2)  the defendant has its principal place of business

9-63     in this state; or

9-64                 (3)  the defendant resides, if in this state.

9-65           (d)  The appropriate county attorney or criminal district

9-66     attorney shall bring the action to recover the civil penalty at the

9-67     request of an operator.

9-68           (e)  Fifty percent of the civil penalty collected under this

9-69     section shall be transferred to the county treasurer of the county

 10-1    prosecuting the action and 50 percent of the civil penalty

 10-2    collected under this section shall be transferred to the

 10-3    corporation.

 10-4          (f)  The county treasurer shall deposit all money received

 10-5    under this section in the general fund of the county.

 10-6          (g)  The corporation shall use the money received under this

 10-7    section to develop public service announcements to educate the

 10-8    public about the statewide one-call notification system and its

 10-9    availability as prescribed by Section 10(a)(7) of this Act.

10-10          (h)  Except as otherwise specifically provided in this Act,

10-11    this section does not affect any civil remedies otherwise provided

10-12    by law for personal injury or for property damage, including any

10-13    damage to an underground facility.

10-14          SECTION 20.  CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR

10-15    CONCEALMENT OF MARKER OR SIGN.  (a)  A person commits an offense

10-16    if:

10-17                (1)  the person without authorization from the owner or

10-18    operator of the facility intentionally removes, damages, or

10-19    conceals a marker or sign giving information about the location of

10-20    a Class A underground facility; and

10-21                (2)  the marker or sign gives notice of the penalty for

10-22    intentional removal, damage, or concealment of the marker or sign.

10-23          (b)  An offense under this section is a Class B misdemeanor.

10-24          SECTION 21.  EXISTING NOTIFICATION CENTERS.  A notification

10-25    center operating on the effective date of this Act may continue to

10-26    operate if the notification center complies with this Act.

10-27          SECTION 22.  INITIAL DIRECTORS.  (a)  The governor shall

10-28    appoint the initial directors under Section 5 of this Act before

10-29    November 1, 1997.

10-30          (b)  The initial terms of directors appointed to represent a

10-31    division under Sections 5(e)(1), (4), (7), (10), and (13) of this

10-32    Act expire August 31, 1998.  The initial terms of directors

10-33    appointed to represent a division under Sections 5(e)(2), (5), (8),

10-34    (11), and (14) of this Act expire August 31, 1999.  The initial

10-35    terms of directors appointed to represent a division under Sections

10-36    5(e)(3), (6), (9), (12), and (15) of this Act expire August 31,

10-37    2000.

10-38          SECTION 23.  FACILITY ON COUNTY OR MUNICIPAL ROAD.

10-39    (a)  Section 16 of this Act does not apply to an excavation by a

10-40    county employee on a county road or a municipal employee on a

10-41    municipal road, except an excavation within a recorded easement.

10-42          (b)  This Act does not affect any contractual or statutory

10-43    right of a county or municipality to require an operator to

10-44    relocate, replace, or repair its underground facility.

10-45          SECTION 24.  EFFECTIVE DATE; APPLICATION.  This Act takes

10-46    effect September 1, 1997, and applies as follows:

10-47                (1)  the powers and duties of the corporation under

10-48    Sections 5 and 10 of this Act apply only on and after November 1,

10-49    1997, except that:

10-50                      (A)  the corporation shall develop and implement

10-51    the processes required by Section 10(a) of this Act before March 1,

10-52    1998; and

10-53                      (B)  the corporation shall select vendors as

10-54    required by Sections 10(a)(4) and (5) of this Act before May 1,

10-55    1998;

10-56                (2)  the initial fee due under Section 6(a) of this Act

10-57    is due January 15, 1998;

10-58                (3)  registration is not required under Section

10-59    2(12)(C) of this Act until March 1, 1998;

10-60                (4)  the duties of an operator under Section 7 of this

10-61    Act apply only on and after May 1, 1998;

10-62                (5)  a fee is not due under Section 6(b) or (c) before

10-63    October 1, 1998; and

10-64                (6)  the rights and duties provided by Sections 3, 4,

10-65    8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 23 apply only on and

10-66    after October 1, 1998.

10-67          SECTION 25.  EXISTING LAW.  This Act does not affect any

10-68    civil remedy for personal injury or for property damage, including

10-69    any damage to an underground facility.

 11-1          SECTION 26.  EMERGENCY.  The importance of this legislation

 11-2    and the crowded condition of the calendars in both houses create an

 11-3    emergency and an imperative public necessity that the

 11-4    constitutional rule requiring bills to be read on three several

 11-5    days in each house be suspended, and this rule is hereby suspended.

 11-6                                 * * * * *