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.