I

104TH CONGRESS

1ST SESSION H. R. 2482

To require States to consider adopting mandatory, comprehensive, statewide

one-call notification systems to protect underground facilities from being

damaged by any excavations, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 13, 1995

Mr. PALLONE introduced the following bill; which was referred to the

Committee on Commerce

A BILL

To require States to consider adopting mandatory, comprehensive, statewide one-call notification systems to protect underground facilities from being damaged by any

excavations, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Comprehensive One5 Call Notification Act of 1995’’.

6 SEC. 2. DEFINITIONS.

7 For purposes of this Act, the following definitions

8 apply:
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1 (1) DAMAGE.—The term ‘‘damage’’ means any

2 impact or contact with an underground facility, its

3 appurtenances, or its protective coating, or weaken4 ing of the support for the facility or protective hous5 ing, which requires repair.

6 (2) EXCAVATION.—The term ‘‘excavation’’

7 means any operation in which earth, rock, or other

8 material in the ground is moved, removed, or other9 wise displaced by means of any mechanized tools or

10 equipment, or any explosive, but shall not include—

11 (A) any generally accepted normal agricul12 tural practices and activities taken in support

13 thereof, as determined by each State, including

14 tilling of the soil for agricultural purposes to a

15 depth of 18 inches or less;

16 (B) generally accepted normal lawn and

17 garden activities, as determined by each State;

18 and

19 (C) the excavation of a gravesite in a cem20 etery.

21 (3) EXCAVATOR.—The term ‘‘excavator’’ means

22 a person who conducts excavation.

23 (4) FACILITY OPERATOR.—The term ‘‘facility

24 operator’’ means any person who operates an under25 ground facility.
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1 (5) PERSON.—The term ‘‘person’’ includes any

2 agency of Federal, State, or local government.

3 (6) SECRETARY.—The term ‘‘Secretary’’ means

4 the Secretary of Commerce.

5 (7) STATE.—The term ‘‘State’’ means a State

6 of the United States, the District of Columbia, or

7 Puerto Rico.

8 (8) STATE PROGRAM.—The term ‘‘State pro9 gram’’ means the program of a State to establish or

10 maintain a one-call notification system.

11 (9) UNDERGROUND FACILITY.—The term ‘‘un12 derground facility’’ means any underground line,

13 system, or structure that is part of a system in

14 interstate commerce used for transmitting or distrib15 uting electricity or communication.

16 SEC. 3. NATIONWIDE TOLL-FREE NUMBER SYSTEM.

17 Within 1 year after the date of enactment of this Act,

18 the Secretary shall, in consultation with the Federal Com19 munications Commission, facility operators, excavators,

20 and one-call notification system operators, provide for the

21 establishment of a nationwide toll-free telephone number

22 system to be used by State one-call notification systems.

23 SEC. 4. STATE PROGRAMS.

24 (a) CONSIDERATION.—Each State shall consider

25 whether to adopt a comprehensive statewide one-call noti-
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1 fication program with each element described in section

2 5, to protect all underground facilities from damage due

3 to any excavation. Such State program may be provided

4 for through the establishment of a new program, or

5 through modification or improvement of an existing pro6 gram, and may be implemented by a nongovernmental or7 ganization. Such State program may include protection of

8 facilities not part of a system in interstate commerce.

9 (b) PROCEDURES.—State consideration under sub10 section (a) shall be undertaken after public notice and

11 hearing, and shall be completed within 3 years after the

12 date of enactment of this Act. Such consideration may be

13 undertaken as part of any proceeding of a State with re14 spect to the safety of underground facilities.

15 (c) COMPLIANCE.—If a State fails to comply with the

16 requirements of subsection (a), the Secretary or any per17 son aggrieved by such failure may in a civil action obtain

18 appropriate relief against any appropriate officer or entity

19 of the State, including the State itself, to compel such

20 compliance.

21 (d) APPROPRIATENESS.—Nothing in this Act pro22 hibits a State from making a determination that it is not

23 appropriate to adopt a State program described in section

24 5, pursuant to its authority under otherwise applicable

25 State law.
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1 SEC. 5. ELEMENTS OF STATE PROGRAM.

2 (a) IN GENERAL.—Each State’s consideration under

3 section 4(a) shall include consideration of program ele4 ments that—

5 (1) provide for a one-call notification system or

6 systems which shall—

7 (A) apply to all excavators and to all facil8 ity operators;

9 (B) operate in all areas of the State and

10 not duplicate the geographical coverage of other

11 one-call notification systems;

12 (C) receive and record appropriate infor13 mation from excavators about intended exca14 vations;

15 (D) inform facility operators of any in16 tended excavations that may be in the vicinity

17 of their underground facilities; and

18 (E) inform excavators of the identity of fa19 cility operators who will be notified of the in20 tended excavation;

21 (2) provide for 24-hour coverage for emergency

22 excavation, with the manner and scope of coverage

23 determined by the State;

24 (3) employ mechanisms to ensure that the gen25 eral public, and in particular all excavators, are

26 aware of the one-call telephone number and the re-
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1 quirements, penalties, and benefits of the State pro2 gram relating to excavations;

3 (4) inform excavators of any procedures that

4 the State has determined must be followed when ex5 cavating;

6 (5) require that any excavator must contact the

7 one-call notification system in accordance with State

8 specifications, which may vary depending on whether

9 the excavation is short term, long term, routine, con10 tinuous, or emergency;

11 (6) require facility operators to provide for lo12 cating and marking or otherwise identifying their fa13 cilities at an excavation site, in accordance with

14 State specifications, which may vary depending on

15 whether the excavation is short term, long term, rou16 tine, continuous, or emergency;

17 (7) provide effective mechanisms for penalties

18 and enforcement as described in section 6;

19 (8) provide for a fair and appropriate schedule

20 of fees to cover the costs of providing for, maintain21 ing, and operating the State program;

22 (9) provide an opportunity for citizen suits to

23 enforce the State program; and

24 (10) require railroads to report any accidents

25 that occur during or as a result of routine railroad
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1 maintenance to the Secretary and the appropriate

2 local officials.

3 (b) EXCEPTION.—Where excavation is undertaken by

4 or for a person, on real property owned or leased, or in

5 which an oil or gas mineral leasehold interest is held, by

6 that person, and the same person operates all under7 ground facilities located at the site of the excavation, a

8 State program may elect not to require that such person

9 contact the one-call notification system before excavating.

10 SEC. 6. PENALTIES AND ENFORCEMENT.

11 (a) GENERAL PENALTIES.—Each State’s consider12 ation under section 4(a) shall include consideration of a

13 requirement that any excavator or facility operator who

14 violates the requirements of the State program shall be

15 liable for an appropriate administrative or civil penalty.

16 (b) INCREASED PENALTIES.—If a violation results in

17 damage to an underground facility resulting in death, seri18 ous bodily harm, or actual damage to property exceeding

19 $50,000, the penalties shall be increased, and an addi20 tional penalty of imprisonment may be assessed for a

21 knowing and willful violation.

22 (c) DECREASED PENALTIES.—Each State’s consider23 ation under section 4(a) shall include consideration of re24 duced penalties for a violation, that results in or could re25 sult in damage, that is promptly reported by the violator.
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1 (d) EQUITABLE RELIEF AND MANDAMUS AC2 TIONS.—Each State’s consideration under section 4(a)

3 shall include consideration of provisions for appropriate

4 equitable relief and mandamus actions.

5 (e) IMMEDIATE CITATION OF VIOLATIONS.—Each

6 State’s consideration under section 4(a) shall include con7 sideration of procedures for issuing a citation of violation

8 at the site and time of the violation.

9 SEC. 7. GRANTS TO STATES.

10 (a) AUTHORITY.—Using $4,000,000 of the amounts

11 previously collected under section 7005 of the Consoli12 dated Omnibus Budget Reconciliation Act of 1985 (pre13 viously codified as 49 U.S.C. App. 1682a) or section

14 60301 of title 49, United States Code, for each of the fis15 cal years 1996, 1997, and 1998, to the extent provided

16 in advance in appropriations Acts, the Secretary shall

17 make grants to States, or to operators of one-call notifica18 tion systems in such States, which have elected to adopt

19 a State program described in section 5, or to establish and

20 maintain a State program pursuant to subsection (b) of

21 this section. Such grants may be used in establishing one22 call notification systems, modifying existing systems to

23 conform to standards established under this Act, and im24 proving systems to exceed such standards. Such grants

25 may be used to—
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1 (1) improve communications systems linking

2 one-call notification systems;

3 (2) improve location capabilities, including

4 training personnel and developing and using location

5 technology;

6 (3) improve record retention and recording ca7 pabilities;

8 (4) enhance public information and education

9 campaigns;

10 (5) increase and improve enforcement mecha11 nisms, including administrative processing of viola12 tions; and

13 (6) otherwise further the purposes of this Act.

14 (b) ALTERNATE FORM OF STATE PROGRAM.—The

15 Secretary may make a grant under subsection (a) to a

16 State that establishes or maintains a State program that

17 differs from a State program described in section 5 if such

18 State program is at least as protective of the public health

19 and safety and the environment as a State program de20 scribed in section 5.

21 SEC. 8. DEPARTMENT OF COMMERCE.

22 (a) COORDINATION WITH OTHER RESPONSIBIL23 ITIES.—
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1 (1) COORDINATION.—The Secretary shall co2 ordinate the implementation of this Act with appro3 priate Federal agencies.

4 (2) REVIEW OF PROGRAMS.—Within 18 months

5 after the date of enactment of this Act, the Sec6 retary shall review, and report to Congress on, the

7 extent to which any policies, programs, and proce8 dures of the Department of Commerce could be used

9 to achieve the purposes of this Act.

10 (b) MODEL PROGRAM.—

11 (1) DEVELOPMENT.—Within 1 year after the

12 date of enactment of this Act, the Secretary, in con13 sultation with facility operators, excavators, one-call

14 notification system operators, and State and local

15 governments, shall develop and make available to

16 States a model State program, including a model en17 forcement program. Such model program may be

18 amended by the Secretary on the Secretary’s initia19 tive or in response to reports submitted by the

20 States pursuant to section 9, or as a result of work21 shops conducted under paragraph (3) of this sub22 section.

23 (2) SUGGESTED ELEMENTS.—The model pro24 gram developed under paragraph (1) shall include all

25 elements of a State program described in section 5.
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1 The Secretary shall consider incorporating the fol2 lowing elements into the model program:

3 (A) The one-call notification system or sys4 tems shall—

5 (i) receive and record appropriate in6 formation from excavators about intended

7 excavations, including—

8 (I) the name of the person con9 tacting the one-call notification sys10 tem;

11 (II) the name, address, and tele12 phone number of the excavator;

13 (III) the specific location of the

14 intended excavation, along with the

15 starting date thereof and a description

16 of the intended excavation activity;

17 and

18 (IV) the name, address, and tele19 phone number of the person for whom

20 the work is being performed; and

21 (ii) maintain records on each notice of

22 intent to excavate for the period of time

23 necessary to ensure that such records re24 main available for use in the adjudication

25 of any claims relating to the excavation.
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1 (B) The provision of information on exca2 vation requirements at the time of issuance of

3 excavation or building permits, or other specific

4 mechanisms for ensuring excavator awareness.

5 (C) A requirement that any excavator

6 must contact the one-call notification system at

7 least 2 business days, and not more than 10

8 business days, before excavation begins.

9 (D) Alternative notification procedures for

10 excavation activities conducted as a normal part

11 of ongoing operations within specific geographic

12 locations over an extended period of time.

13 (E) A requirement that facility opera14 tors—

15 (i) provide for locating and marking,

16 in accordance with the American Public

17 Works Association Uniform Color Code for

18 Utilities, or otherwise identifying, in ac19 cordance with standards established by the

20 State or the American National Standards

21 Institute, their underground facilities at

22 the site of an intended excavation within

23 no more than 2 business days after notifi24 cation of such intended excavation; and
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1 (ii) monitor such excavation as appro2 priate.

3 (F) Provision for notification of excavators

4 if no underground facilities are located at the

5 excavation site.

6 (G) Provision for the approval of a State

7 program under this Act with time limitations

8 longer than those required under subpara9 graphs (C) and (E) of this paragraph where

10 special circumstances, such as severe weather

11 conditions or remoteness of location, pertain.

12 (H) Procedures for excavators and facility

13 operators to follow when the location of under14 ground facilities is unknown.

15 (I) Procedures to improve underground fa16 cility location capabilities, including compiling

17 and notifying excavators, facility operators, and

18 one-call centers of any information about pre19 viously unknown underground facility locations

20 when such information is discovered.

21 (J) Alternative rules for timely compliance

22 with State program requirements in emergency

23 circumstances.

24 (K) If a State has procedures for licensing

25 or permitting entities to do business, procedures
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1 for the revocation of the license or permit to do

2 business of any excavator determined to be a

3 habitual violator of the requirements of the

4 State program.

5 (3) WORKSHOPS.—Within 6 months after the

6 date of enactment of this Act, and annually there7 after, the Secretary shall conduct workshops with fa8 cility operators, excavators, one-call notification sys9 tem operators, and State and local governments in

10 order to develop, amend, and promote the model

11 program, and to provide an opportunity to share in12 formation among such parties and to recognize State

13 programs that exemplify the goals of this Act.

14 (c) PUBLIC EDUCATION.—The Secretary shall de15 velop, in conjunction with facility operators, excavators,

16 one-call notification system operators, and State and local

17 governments, public service announcements and other edu18 cational materials and programs to be broadcast or pub19 lished to educate the public about one-call notification sys20 tems, including the national phone number.

21 SEC. 9. STATE REPORTS.

22 (a) REQUIREMENT.—

23 (1) INITIAL REPORT.—Within 3 years after the

24 date of enactment of this Act, each State shall sub-
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1 mit to the Secretary a report on progress made in

2 implementing this Act.

(2) STATUS REPORTS.—Within 41 3 ⁄2 years after

4 the date of enactment of this Act, and annually

5 thereafter, each State shall report to the Secretary

6 on the status of its State program, if any, and its

7 requirements, and any other information the Sec8 retary requires.

9 (b) SIMPLIFIED REPORTING FORM.—Within 3 years

10 after the date of enactment of this Act, the Secretary shall

11 develop and distribute to the States a simplified form for

12 complying with the reporting requirements of subsection

13 (a)(2).

14 SEC. 10. MORE PROTECTIVE SYSTEMS.

15 Nothing in this Act prohibits a State from imple16 menting a one-call notification system that provides great17 er protection for underground facilities from damage due

18 to excavation than a system established pursuant to this

19 Act.

20 SEC. 11. SENSE OF CONGRESS; REQUIREMENT REGARDING

21 NOTICE.

22 (a) PURCHASE OF AMERICAN-MADE EQUIPMENT

23 AND PRODUCTS.—It is the sense of Congress that, to the

24 greatest extent practicable, all equipment and products
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1 purchased with funds made available under this Act

2 should be American-made.

3 (b) NOTICE TO RECIPIENTS OF ASSISTANCE.—In

4 providing financial assistance under this Act, the Sec5 retary, to the greatest extent practicable, shall provide to

6 each recipient of the assistance a notice describing the

7 statement made in subsection (a).

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