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 * * * * *