By Cain S.B. No. 1281 75R8522 T A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to excavation operations that may damage underground 1-3 facilities and 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 (a) "Agricultural operations" means activities performed on 1-9 land defined in Section 23.51(2) of the Tax Code of Texas. 1-10 (b) "Class A underground facility" means an underground 1-11 facility that is used to produce, store, convey, transmit, or 1-12 distribute: 1-13 (1) electrical energy; 1-14 (2) natural or synthetic gas; 1-15 (3) petroleum or petroleum products; 1-16 (4) steam; 1-17 (5) any form of telecommunications service, including 1-18 but not limited to voice, data, video or optical transmission, 1-19 cable television service or; 1-20 (6) any other liquid, material, or product not defined 1-21 as a Class B underground facility. 1-22 (c) "Class B underground facility" means an underground 1-23 facility that is used to produce, store, convey, transmit, or 1-24 distribute: 2-1 (1) water; 2-2 (2) slurry; or 2-3 (3) sewage. 2-4 (d) "Corporation" means the Texas Underground Facility 2-5 Notification Corporation created by this Act. 2-6 (e) "Damage" means: 2-7 (1) the defacing, scraping, displacement, penetration, 2-8 destruction, or partial or complete severance of an underground 2-9 facility or of any protective coating, housing, or other protective 2-10 device of an underground facility; 2-11 (2) the weakening of structural or lateral support of 2-12 an underground facility; or 2-13 (3) the failure to properly replace the backfill 2-14 covering an underground facility. 2-15 (f) "Excavate" or "excavation" means to use explosives or a 2-16 motor, engine, hydraulic or pneumatically powered tool, or other 2-17 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 twelve or more inches. 2-22 (g) "Excavator" means a person that excavates or intends to 2-23 excavate in this state. 2-24 (h) "Exploration and production underground facility" means 2-25 an underground facility used by a person producing gas or oil, or 2-26 both, for the production of that gas or oil and includes facilities 2-27 used for field separation, treatment, or storage of gas or oil. 3-1 (i) "High speed data transmission" means a method of data 3-2 transmission that does not include facsimile or voice transmission. 3-3 (j) "Legal holiday" means a holiday specified as a legal 3-4 holiday by Subchapter B, Chapter 662, Government Code. 3-5 (k) "Mechanized equipment" means equipment operated by 3-6 mechanical power, including a trencher, bulldozer, power shovel, 3-7 auger, backhoe, scraper, drill, cable or pipe plow, and other 3-8 equipment used to plow-in or pull-in cable or pipe. 3-9 (l) "Municipality" means a city or incorporated village or 3-10 town existing, created, or organized under the general, home-rule, 3-11 or special laws of the State. 3-12 (m) "Notification center" means a legal entity that: 3-13 (1) operates a notification system capable of serving 3-14 excavators and operators statewide; 3-15 (2) is created to: 3-16 (A) receive notification of an intent to 3-17 excavate and of damage to an underground facility and disseminate 3-18 that information to member operators that may be affected by the 3-19 excavation or damage and to other notification centers operating in 3-20 the State; and 3-21 (B) receive notification of an extraordinary 3-22 circumstance and disseminate that information to member operators 3-23 and to other notification centers operating in the state. 3-24 (3) registers the following information with the 3-25 Corporation: 3-26 (A) name; 3-27 (B) address; 4-1 (C) telephone number; 4-2 (D) contact person 4-3 (E) statement of compliance with Section 8(h); 4-4 and 4-5 (F) listing of counties in which notification 4-6 center operates 4-7 (n) "Operator" means a person that operates an underground 4-8 facility. 4-9 (o) "Person" means an individual, corporation, partnership, 4-10 association, government or governmental subdivision or agency, or 4-11 other legal entity. 4-12 (p) "Secured facility" means a parcel of land used for 4-13 commercial or industrial purposes that is surrounded entirely by a 4-14 fence or other means of preventing access, including a fence with 4-15 one or more gates are locked at all times or monitored by a person 4-16 who can prevent unauthorized access. 4-17 (q) "Underground facility" means a line, cable, pipeline 4-18 system, conduit or structure that is located partially or totally 4-19 underground and that is used to produce, store, convey, transmit, 4-20 or distribute telecommunications, electricity, gas, water, sewage, 4-21 steam, or liquids such as petroleum, petroleum products, or 4-22 hazardous liquids. 4-23 SECTION 3. EXEMPTIONS. (a) The following are not subject 4-24 to this Act as underground facilities: 4-25 (1) an aboveground or underground storage tank, sump, 4-26 or impoundment, or piping connected to an aboveground or 4-27 underground storage tank, sump, or impoundment located in the same 5-1 tract of land as the storage tank, sump, or impoundment; 5-2 (2) an underground facility operated by the owner of a 5-3 secured facility and located entirely within the secured facility; 5-4 (3) an underground facility that serves only the owner 5-5 of the underground facility or the owner's tenant and that is 5-6 located solely on the owner's property; 5-7 (4) piping within a well bore; 5-8 (5) the portion of an exploration and production 5-9 underground facility that is located in the boundaries of an oil or 5-10 gas field and that is not located: 5-11 (A) within a municipality; 5-12 (B) in the extraterritorial jurisdiction of a 5-13 municipality; or 5-14 (C) in the boundaries of an established easement 5-15 or right-of-way; or 5-16 (6) an underground facility that serves a cemetery and 5-17 is located solely on the cemetery's property. 5-18 (b) An operator of an underground facility that is exempted 5-19 under this section may voluntarily register that facility under 5-20 this Act but assumes the obligation to comply with all the duties 5-21 of an operator of a Class A underground facility under 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; 6-17 (4) may not be placed in receivership; and 6-18 (c) The corporation is subject to Government Code Chapters 6-19 551 and 552 except that the corporation may not disseminate, make 6-20 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) telephone cooperative corporations and local 7-12 exchange telephone companies that have 31,000 or fewer access lines 7-13 in service in this state; 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 the 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 annually on August 31. The initial term of board members 8-11 from subsection (e)(1), (e)(4), (e)(7), (e)(10) and (e)(13) is one 8-12 year. The initial term of board members from subsection (e)(2), 8-13 (e)(5), (e)(8), (e)(11) and (e)(14) is two years. A director 8-14 serves until his successor is elected and has assumed office. The 8-15 board may declare a director's office vacant if the director ceases 8-16 to be associated with an operator included in the electing 8-17 division. A vacancy on the board shall be filled by the original 8-18 electing division for the remainder of the unexpired term. 8-19 (g) The board shall elect from among its directors a chair 8-20 and vice chair. The chair and vice chair serve for a term of one 8-21 year and may be re-elected. 8-22 (h) The corporation's bylaws must provide that each division 8-23 is entitled to one vote. 8-24 SECTION 6. FEES AND RATES. (a) Each operator shall pay to 8-25 the board an annual fee of $50. 8-26 (b) Each time a notification center receives a call from an 8-27 excavator pursuant to Section 9(a), the notification center shall 9-1 pay to the corporation $0.01. The $0.01 charge shall be waived for 9-2 the remainder of any year in which the corporation receives 9-3 $500,000 from the $0.01 charge. 9-4 (c) The notification center shall charge each operator for a 9-5 call made to the system that affects the operator. The amount of 9-6 the charge imposed by the system shall not be more than $1.25. The 9-7 board may increase or decrease the maximum charge only on an 9-8 affirmative vote of at least two-thirds of the total number of 9-9 votes entitled to be cast. 9-10 (d) In no event shall the notification center charge an 9-11 operator any additional fee such as an initiation fee, a membership 9-12 fee, or a set-up fee. 9-13 SECTION 7. DUTY OF AN OPERATOR. (a) Each operator of a 9-14 Class A underground facility, including a political subdivision of 9-15 this state, shall participate in a notification center as a 9-16 condition of doing business in this state. 9-17 (b) Each operator of a Class A underground facility shall 9-18 provide to the notification center: 9-19 (1) maps or grid locations or other identifiers 9-20 determined by the operator indicating the location of the 9-21 operator's underground facilities; 9-22 (2) the name and telephone number of a contact person 9-23 or persons; and 9-24 (3) at least quarterly but, if possible, as those 9-25 changes occur, information relating to each change in the 9-26 operator's maps or grid locations or other identifiers or in the 9-27 person or persons designated as the operator's contact person or 10-1 persons. 10-2 (c) The notification center may not require an operator to 10-3 conduct a survey of the operator's underground facilities nor alter 10-4 the operator's existing signage. 10-5 (d) An operator of a Class B underground facility may 10-6 voluntarily provide the information required by this section. By 10-7 providing the information required by this section, an operator of 10-8 a Class B underground facility will be treated as a Class A 10-9 underground facility under this Act. 10-10 SECTION 8. DUTY OF NOTIFICATION CENTER. (a) Not later than 10-11 two hours after the time the notification center receives a notice 10-12 of intent to excavate from an excavator, the notification center 10-13 shall provide via high speed data transmission to every other 10-14 affected notification center operating in the State the Section 10-15 9(c) information received from the excavator. 10-16 (b) Not later than two hours after the time the notification 10-17 center receives a notice of intent to excavate from an excavator or 10-18 from a different notification center, the notification center shall 10-19 notify each member operator that may have an underground facility 10-20 in the vicinity of the proposed excavation operation. 10-21 (c) A notification center shall: 10-22 (1) operate 24 hours a day every day of the year; 10-23 (2) have the capability to receive emergency 10-24 information 24 hours a day from excavators and disseminate the 10-25 information as soon as it is received to the appropriate operators 10-26 and to all registered and affected notification centers operating 10-27 in the state; 11-1 (3) have the capacity to receive extraordinary 11-2 circumstance information 24 hours a day from operators and 11-3 disseminate the information as soon as it is received to all 11-4 registered and affected notification centers; and 11-5 (4) bear a pro rata share of the expense, as 11-6 established by the Corporation, of the statewide 800 number and the 11-7 call router. 11-8 (d) The costs of a notification center notifying another 11-9 notification center pursuant to Section 8(c)(3) shall be recovered 11-10 by the notification center providing the notice from the 11-11 notification center receiving the notice. 11-12 (e) The costs described in Section 8(d) shall be recovered 11-13 for each notification provided to another notification center, 11-14 however, in no event shall the recovered cost exceed the actual 11-15 cost of providing the information. 11-16 (f) A notification center shall maintain for not less than 11-17 four years a record to document: 11-18 (1) the receipt of 11-19 (A) a notice of intent to excavate; 11-20 (B) damage to an underground facility; 11-21 (C) an emergency excavation; and 11-22 (D) an extraordinary circumstance. 11-23 (2) the information the excavator is required to 11-24 provide the notification center under this Act; 11-25 (3) contact with operators and other notification 11-26 centers; and 11-27 (4) the information the notification center provided 12-1 to the excavator. 12-2 (g) A notification center may not destroy records that 12-3 relate to any matter that is involved in litigation if the 12-4 notification center is placed on notice that the litigation has not 12-5 been finally resolved. 12-6 (h) A notification center shall, at all times, maintain a 12-7 minimum of $5 million professional liability and errors and 12-8 omissions insurance to cover duties prescribed by this Act. 12-9 (i) The notification center may not disseminate, make 12-10 available, or otherwise distribute maps or information provided by 12-11 an operator unless that action is necessary to perform the 12-12 notification center's specific obligations under this Act. 12-13 SECTION 9. DUTY OF AN EXCAVATOR. (a) Except as provided by 12-14 Sections 12 and 13 of this Act, a person that intends to excavate 12-15 shall notify a notification center not earlier than the 14th day 12-16 before the day the excavation is to begin or later than the 48th 12-17 hour before the time the excavation is to begin, excluding 12-18 Saturdays, Sundays, and legal holidays. The excavator may not 12-19 begin excavation before the time the excavation is to begin without 12-20 the prior written agreement of each operator that has an 12-21 underground facility in the area to be excavated. The person must 12-22 again notify a notification center of the intended excavation in 12-23 accordance with this subsection if the person does not begin the 12-24 excavation within 14 days after notifying the notification center, 12-25 excluding Saturdays, Sundays, and legal holidays. 12-26 (b) Until the excavation is completed, the excavator must, 12-27 not later than the 30th day after the last notification, notify a 13-1 notification center by telephone that the excavator has not 13-2 completed the excavation. 13-3 (c) The notice required under this section shall include: 13-4 (1) the name of the person serving the notice; 13-5 (2) the specific location of the proposed area of 13-6 excavation, including: 13-7 (A) the street address, if available, and the 13-8 specific location of the excavation at the street address; or 13-9 (B) if there is no street address, an accurate 13-10 description of the excavation area using any available designations 13-11 such as the closest street, road, or intersection; 13-12 (3) the name, address, and telephone number of the 13-13 excavator or the excavator's company; 13-14 (4) the excavator's field telephone number, if one is 13-15 available; 13-16 (5) the starting date and time and the anticipated 13-17 completion date of excavation; 13-18 (6) the type and extent of the proposed work; and 13-19 (7) a statement as to whether explosives will be used 13-20 and; 13-21 (d) If the operator notifies the excavator that the operator 13-22 wants to have a representative present during the excavation, the 13-23 operator shall contact the excavator and advise the excavator of 13-24 the operator's intent to be present during excavation and confirm 13-25 the start time of the excavation. If the start time is changed by 13-26 the excavator, the excavator must notify the operator of the start 13-27 time change. However, once notified by the operator of the intent 14-1 to be present, the excavator shall not commence excavation at an 14-2 earlier time than the confirmed start time without the operator's 14-3 agreement. 14-4 SECTION 10. DUTY OF THE TEXAS UNDERGROUND FACILITY 14-5 NOTIFICATION CORPORATION. (a) The Corporation shall: 14-6 (1) maintain a registration of notification centers as 14-7 provided in Section (2)(m)(3); 14-8 (2) establish minimum technical standards used by 14-9 notification centers; 14-10 (3) establish a statewide 800 number to be used by 14-11 excavators; 14-12 (4) oversee the bid process and select the vendor for 14-13 the statewide 800 number; 14-14 (5) oversee the bid process and select the vendor for 14-15 the call router system; 14-16 (6) determine the cost sharing between the 14-17 notification centers of 14-18 (a) the 800 number; and 14-19 (b) the call router system prescribed in Section 14-20 (8)(c)(4). 14-21 (7) develop public service announcements to educate 14-22 the public about statewide one-call notification and its 14-23 availability; 14-24 (8) establish a format for information transfer 14-25 between notification centers other than high speed data 14-26 transmission, if appropriate; 14-27 (9) upon complaint, investigate and determine 15-1 appropriate charges pursuant to Section 8(e); 15-2 (10) assess a penalty to any registered notification 15-3 center that does not meet the requirements of this Act of not less 15-4 than $1,000 nor more than $5,000 for each violation; 15-5 (11) refer to the Attorney General who shall institute 15-6 a suit in a court of competent jurisdiction to recover the penalty 15-7 in (10) above; 15-8 (12) assist in dispute resolution between notification 15-9 centers or between a notification center and an operator; and 15-10 (13) assist any operator who encounters difficulty in 15-11 joining a notification center. 15-12 (b) The corporation shall solicit proposals for the contract 15-13 to establish and operate the statewide 800 number and the call 15-14 router system by using a request for proposals process that 15-15 includes specifications that have been approved by the board of 15-16 directors in accordance with this Act. 15-17 (c) The corporation is not required to award the contract to 15-18 the lowest offeror if the terms of another proposal would result in 15-19 a lower annual cost and are more advantageous to the corporation 15-20 and its members. The corporation may reject all proposals if the 15-21 corporation finds that none of the proposals is acceptable. After 15-22 the proposals are opened, each document relating to the 15-23 consideration of a proposal or the award of a contract and the text 15-24 of the contract are considered books and records of the corporation 15-25 as that term is used in Article 2.23, Texas Non-Profit Corporation 15-26 Act (Article 1396-2.23, Vernon's Texas Civil Statutes). 15-27 SECTION 11. NOTIFICATION BY AN EXCAVATOR. (a) A person is 16-1 considered to have provided notification under this Act when a 16-2 person required to provide notice under this Act delivers the 16-3 required information and a notification center receives that 16-4 information within the time limits prescribed by this Act. 16-5 (b) A person may deliver information required under this Act 16-6 by any appropriate method, including the use of any electronic 16-7 means of data transfer. 16-8 SECTION 12. EXCEPTION IN CASE OF EMERGENCY. (a) Section 9 16-9 of this Act does not apply to an emergency excavation that is 16-10 necessary to respond to a situation that endangers life, health, or 16-11 property or a situation in which the public need for service 16-12 compels immediate action. 16-13 (b) The excavator may begin emergency excavation under 16-14 Subsection (a) of this section immediately and shall take 16-15 reasonable precautions to protect underground facilities. 16-16 (c) When an emergency exists, the excavator shall notify a 16-17 notification center as promptly as reasonably possible. 16-18 SECTION 13. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. (a) 16-19 Section 9 of this Act does not apply to: 16-20 (1) interment operations of a cemetery; 16-21 (2) operations at a secured facility if: 16-22 (A) the excavator operates each underground 16-23 facility at the secured facility, other than those within a third 16-24 party underground facility easement or right-of-way; and 16-25 (B) the excavation activity is not within a 16-26 third party underground facility or right-of-way; or 16-27 (3) activities performed on private property in 17-1 connection with agriculture operations as defined in Section 17-2 23.51(2) of the Tax Code of Texas. Provided, however, if an 17-3 individual excepted by this subpart (3) elects to comply fully with 17-4 this Act, and if the operator fails to fully comply with this Act, 17-5 the individual will not be liable to the underground facility owner 17-6 for damages to the underground facility; 17-7 (4) operations associated with the exploration or 17-8 production of oil gas if the operations are not conducted within an 17-9 underground facility easement or right-of-way; 17-10 (5) excavations by or for a person that: 17-11 (A) owns or leases or owns a mineral leasehold 17-12 interest in the real property on which the excavation occurs; and 17-13 (B) operates all underground facilities located 17-14 at the excavation site. 17-15 (b) This section is not intended to affect or impose any 17-16 civil remedies otherwise provided by law for personal injury or for 17-17 property damage, including any damage to an underground facility. 17-18 SECTION 14. DUTY OF OPERATOR TO PERSON EXCAVATING. (a) Not 17-19 later than the 48th hour after the excavator gives to the 17-20 notification system notice of intent to excavate, excluding 17-21 Saturdays, Sundays, and legal holidays, or at such time mutually 17-22 agreed to by the operator and the excavator, the operator contacted 17-23 by the notification system shall locate and mark the approximate 17-24 location of its underground facilities at or near the site of the 17-25 proposed excavation if the operator believes that locating and 17-26 marking the location is necessary. 17-27 (b) For the purposes of this section, an excavator may 18-1 presume, unless the operator advises the excavator otherwise, that 18-2 the marking of an approximate location of an underground facility 18-3 is within 18 inches on either side of the underground facility. 18-4 (c) An operator shall refer to the American Public Works 18-5 Association color coding standards when marking. 18-6 SECTION 15. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY 18-7 CIRCUMSTANCE. (a) The deadline prescribed by Section 14(a) of 18-8 this Act does not apply if the operator experiences an 18-9 extraordinary circumstance due to an act of God, including a 18-10 tornado, a hurricane, an ice storm, or a severe flood, or a war, 18-11 riot, work stoppage, or strike that limits personnel or resources 18-12 needed to fulfill its obligations under this Act. 18-13 (b) The operator shall notify a notification center of the 18-14 extraordinary circumstance and shall include in the notification: 18-15 (1) the nature and location of the extraordinary 18-16 circumstance; 18-17 (2) the expected duration of the situation and the 18-18 approximate time at which the operator will be able to resume 18-19 location request activities; and 18-20 (3) the name and telephone number of the individual 18-21 that the notification system can contact if there is an emergency 18-22 that requires the operator's immediate attention. 18-23 (c) In addition to the notification required by Subsection 18-24 (b) of this section, the operator shall also notify each excavator 18-25 that has a pending location request in the location where an 18-26 extraordinary circumstance is being experienced and shall include 18-27 in the notification: 19-1 (1) the fact that the operator is experiencing an 19-2 extraordinary circumstance; and 19-3 (2) the approximate time at which the operator will 19-4 mark the requested location. 19-5 (d) A notification center shall inform each excavator 19-6 notifying the system under Section 9 of this Act that the 19-7 operator's location request activities are suspended until the 19-8 extraordinary circumstance has discontinued or has been corrected 19-9 within the affected location. 19-10 SECTION 16. PRECAUTIONS TO AVOID DAMAGE TO FACILITIES. (a) 19-11 In addition to providing the notice required by Section 9 of this 19-12 Act, the excavator shall: 19-13 (1) plan the excavation to avoid damage to an 19-14 underground facility that is in or near the excavation area, taking 19-15 into consideration any necessary precautions identified by the 19-16 operator; 19-17 (2) maintain a clearance between the underground 19-18 facility and the cutting edge or point of mechanized equipment that 19-19 is reasonably necessary to avoid damage to the facility, as 19-20 provided by Subsection (b) of this section; 19-21 (3) provide support for an underground facility that 19-22 is reasonably necessary to protect the facility during the 19-23 excavation, including any backfill operations; and 19-24 (4) protect and preserve during excavation the marking 19-25 of the location of the underground facility until the marking is 19-26 not necessary for reasonably safe excavation. 19-27 (b) An excavator shall consider the known limit of control 20-1 of the cutting edge or point of a piece of mechanized equipment in 20-2 determining the necessary clearance that must be maintained with 20-3 uncovered surfaces and paved surfaces. If the centerline of the 20-4 underground facility is marked then the excavator shall use a 20-5 clearance of not less than 24 inches from the centerline. If the 20-6 outer edges of the underground facilities are marked, by an 20-7 operator, then the excavator shall use a clearance of not less than 20-8 24 inches from the outer edge markings. An operator can agree in 20-9 writing that a smaller clearance can safely be used. However, the 20-10 operator may not reasonably withhold an agreement to use a smaller 20-11 clearance if the clearance is reasonable. In determining if the 20-12 clearance is reasonable, the operator may consider the method of 20-13 excavation to be used and the potential for damage, service 20-14 interruption, and loss of revenue. 20-15 SECTION 17. EXCAVATION DAMAGE. (a) If an excavation 20-16 operation results in damage to an underground facility, the 20-17 excavator shall immediately contact the underground facility 20-18 operator to report the damage. 20-19 (b) If the excavator is not certain of the operator's 20-20 identity, the excavator shall contact a notification center to 20-21 report the damage, and the notification center shall immediately 20-22 notify all other affected notification centers. Immediately upon 20-23 receiving such notification, each notification center shall contact 20-24 each member operator that has underground facilities in or near the 20-25 area in which the damage occurred. 20-26 (c) Only the operator or a person authorized by the operator 20-27 may perform repairs. 21-1 (d) An excavator shall delay backfilling in the immediate 21-2 area of the damage until the damage is repaired unless the operator 21-3 authorizes the backfilling. 21-4 (e) If damage endangers life, health, or property because of 21-5 the presence of flammable material, the excavator shall keep 21-6 sources of ignition away. 21-7 SECTION 18. INJUNCTION. (a) An operator may file an action 21-8 in a district court for an injunction to enjoin excavation 21-9 conducted or anticipated to be conducted in violation of this Act. 21-10 (b) Venue for a suit brought under this section is in a 21-11 county in which all or part of the excavation occurs. 21-12 SECTION 19. CIVIL PENALTY. (a) An excavator that violates 21-13 this Act is liable for a civil penalty of not less than $100 or 21-14 more than $500. If it is found at the trial on a civil penalty 21-15 that the excavator has violated this Act and has been assessed a 21-16 penalty under this section one other time during the three years 21-17 preceding the date of the most recent violation, the excavator is 21-18 liable for a civil penalty of not less than $500 or more than 21-19 $1,000. If it is found at the trial on a civil penalty that the 21-20 excavator has violated this Act and has been assessed a penalty 21-21 under this section at least two other times during the three years 21-22 preceding the date of the most recent violation, the excavator is 21-23 liable for a civil penalty of not less than $1,000 or more than 21-24 $2,500. 21-25 (b) In assessing the penalty the court shall consider the 21-26 actual damage to the facility, the impact of the excavator's 21-27 actions on the public health and safety, whether the violation was 22-1 a willful act, and any good faith of the excavator in attempting to 22-2 achieve compliance. 22-3 (c) Venue for a cause of action under this section is in: 22-4 (1) the county in which all or part of the alleged 22-5 violation occurred; 22-6 (2) the county in which the defendant has its 22-7 principal place of business in this state; or 22-8 (3) the county in which the defendant resides, if in 22-9 this state. 22-10 (d) The appropriate county attorney or criminal district 22-11 attorney shall bring the action to recover the civil penalty at the 22-12 request of an operator. 22-13 (e) Fifty percent of the civil penalty collected under this 22-14 section shall be transferred to the county treasurer of the county 22-15 prosecuting the action and fifty percent of the civil penalty 22-16 collected under this section shall be transferred to the 22-17 corporation. 22-18 (f) The county treasurer shall deposit all money received 22-19 under this section in the general fund of the county. 22-20 (g) The corporation shall use the money received under this 22-21 section to develop public service announcements to educate the 22-22 public about the one-call notification system and its availability 22-23 as prescribed by Section 10(a)(7) of this Act. 22-24 (h) Except as otherwise specifically provided in this 22-25 article, this section is not intended to affect any civil remedies 22-26 otherwise provided by law for personal injury or for property 22-27 damage, including any damage to an underground facility. 23-1 SECTION 20. EMERGENCY. The importance of this legislation 23-2 and the crowded condition of the calendars in both houses create an 23-3 emergency and an imperative public necessity that the 23-4 constitutional rule requiring bills to be read on three several 23-5 days in each house be suspended, and this rule is hereby suspended. 23-6 SECTION 21. EFFECTIVE DATE.