IIA

103D CONGRESS

2D SESSION H. R. 4394

IN THE SENATE OF THE UNITED STATES

OCTOBER 3 (legislative day, SEPTEMBER 12), 1994

Received

OCTOBER 8 (legislative day, SEPTEMBER 12), 1994

Read twice and referred to the Committee on Commerce, Science, and

Transportation

AN ACT

To require State’s to consider adopting mandatory, comprehensive, Statewide one-call notification systems to

protect natural gas and hazardous liquid pipelines and

all other 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 1994’’.
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1 SEC. 2. DEFINITIONS.

2 For purposes of this Act, the following definitions

3 apply:

4 (1) DAMAGE.—The term ‘‘damage’’ means any

5 impact or contact with an underground facility, its

6 appurtenances, or its protective coating, or weaken7 ing of the support for the facility or protective hous8 ing, which requires repair.

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

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

11 material in the ground is moved, removed, or other12 wise displaced by means of any mechanized tools or

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

14 (A) any generally accepted normal agricul15 tural practices and activities taken in support

16 thereof, as determined by each State, including

17 tilling of the soil for agricultural purposes to a

18 depth of 18 inches or less;

19 (B) generally accepted normal lawn and

20 garden activities, as determined by each State;

21 (C) the excavation of a gravesite in a cem22 etery; and

23 (D) routine railroad maintenance as long

24 as such maintenance would disturb the ground

25 to a depth of no more than 18 inches as meas26 ured from the surface of the ground and the
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1 railroad has rules requiring underground facili2 ties other than its own to be buried 3 feet or

3 lower on its property or along its right-of-way.

4 When a facility operator believes that its under5 ground facility is not buried 3 feet or lower on rail6 road property or right-of-way, the facility operator

7 may request permission to enter the railroad prop8 erty or right-of-way for the purpose of assessing the

9 depth of such underground facility and report its

10 finding to the railroad.

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

12 a person who conducts excavation.

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

14 operator’’ means any person who operates an under15 ground facility.

16 (5) HAZARDOUS LIQUID.—The term ‘‘hazard17 ous liquid’’ has the meaning given such term in sec18 tion 60101(a)(4) of title 49, United States Code.

19 (6) NATURAL GAS.—The term ‘‘natural gas’’

20 has the meaning given the term ‘‘gas’’ in section

21 60101(a)(2) of title 49, United States Code.

22 (7) PERSON.—The term ‘‘person’’ includes any

23 agency of Federal, State, or local government.

24 (8) ROUTINE RAILROAD MAINTENANCE.—The

25 term ‘‘routine railroad maintenance’’ includes such
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1 activities as ballast cleaning, general ballast work,

2 track lining and surfacing, signal maintenance, and

3 the replacement of crossties.

4 (9) SECRETARY.—The term ‘‘Secretary’’ means

5 the Secretary of Transportation.

6 (10) STATE.—The term ‘‘State’’ has the mean7 ing given such term in section 60101(a)(20) of title

8 49, United States Code.

9 (11) STATE PROGRAM.—The term ‘‘State pro10 gram’’ means the program of a State to establish or

11 maintain a one-call notification system.

12 (12) UNDERGROUND FACILITY.—The term

13 ‘‘underground facility’’ means any underground line,

14 system, or structure used for gathering, storing,

15 transmitting, or distributing oil, petroleum products,

16 other hazardous liquids, natural gas, communication,

17 electricity, water, steam, sewerage, or any other

18 commodities the Secretary determines should be in19 cluded under the requirements of this Act, but such

20 term does not include a portion of a line, system, or

21 structure if the person who owns or leases, or holds

22 an oil or gas mineral leasehold interest in, the real

23 property in which such portion is located also oper24 ates, or has authorized the operation of, the line,

25 system, or structure only for the purpose of furnish-
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1 ing services or materials to such person, except to

2 the extent that such portion contains predominantly

3 natural gas or hazardous liquids and—

4 (A) is located within an easement for a

5 public road (as defined under section 101(a) of

6 title 23, United States Code), or a toll highway,

7 bridge, or tunnel (as described in section

8 129(a)(2) of such title); or

9 (B) is located on a mineral lease and is

10 within the boundaries of a city, town, or village.

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

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

13 the Secretary shall, in consultation with the Federal Com14 munications Commission, facility operators, excavators,

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

16 establishment of a nationwide toll-free telephone number

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

18 SEC. 4. STATE PROGRAMS.

19 (a) CONSIDERATION.—Each State shall consider

20 whether to adopt a comprehensive statewide one-call noti21 fication program with each element described in section

22 5, to protect all underground facilities from damage due

23 to any excavation. Such State program may be provided

24 for through the establishment of a new program, or

25 through modification or improvement of an existing pro-
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1 gram, and may be implemented by a nongovernmental or2 ganization.

3 (b) PROCEDURES.—State consideration under sub4 section (a) shall be undertaken after public notice and

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

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

7 undertaken as part of any proceeding of a State with re8 spect to the safety of pipelines or other underground facili9 ties.

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

11 requirements of subsection (a), the Secretary or any per12 son aggrieved by such failure may in a civil action obtain

13 appropriate relief against any appropriate officer or entity

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

15 compliance.

16 (d) APPROPRIATENESS.—Nothing in this Act pro17 hibits a State from making a determination that it is not

18 appropriate to adopt a State program described in section

19 5, pursuant to its authority under otherwise applicable

20 State law.

21 SEC. 5. ELEMENTS OF STATE PROGRAM.

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

23 section 4(a) shall include consideration of program ele24 ments that—
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1 (1) provide for a one-call notification system or

2 systems which shall—

3 (A) apply to all excavators and to all facil4 ity operators;

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

6 not duplicate the geographical coverage of other

7 one-call notification systems;

8 (C) receive and record appropriate infor9 mation from excavators about intended exca10 vations;

11 (D) inform facility operators of any in12 tended excavations that may be in the vicinity

13 of their underground facilities; and

14 (E) inform excavators of the identity of fa15 cility operators who will be notified of the in16 tended excavation;

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

18 excavation, with the manner and scope of coverage

19 determined by the State;

20 (3) employ mechanisms to ensure that the gen21 eral public, and in particular all excavators, are

22 aware of the one-call telephone number and the re23 quirements, penalties, and benefits of the State pro24 gram relating to excavations;
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1 (4) inform excavators of any procedures that

2 the State has determined must be followed when ex3 cavating;

4 (5) require that any excavator must contact the

5 one-call notification system in accordance with State

6 specifications, which may vary depending on whether

7 the excavation is short term, long term, routine, con8 tinuous, or emergency;

9 (6) require facility operators to provide for lo10 cating and marking or otherwise identifying their fa11 cilities at an excavation site, in accordance with

12 State specifications, which may vary depending on

13 whether the excavation is short term, long term, rou14 tine, continuous, or emergency;

15 (7) provide effective mechanisms for penalties

16 and enforcement as described in section 6;

17 (8) provide for a fair and appropriate schedule

18 of fees to cover the costs of providing for, maintain19 ing, and operating the State program;

20 (9) provide an opportunity for citizen suits to

21 enforce the State program; and

22 (10) require railroads to report any accidents

23 that occur during or as a result of routine railroad

24 maintenance to the Secretary and the appropriate

25 local officials.
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1 (b) EXCEPTION.—Where excavation is undertaken by

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

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

4 that person, and the same person operates all under5 ground facilities located at the site of the excavation, a

6 State program may elect not to require that such person

7 contact the one-call notification system before excavating.

8 SEC. 6. PENALTIES AND ENFORCEMENT.

9 (a) GENERAL PENALTIES.—Each State’s consider10 ation under section 4(a) shall include consideration of a

11 requirement that any excavator or facility operator who

12 violates the requirements of the State program shall be

13 liable for an appropriate administrative or civil penalty.

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

15 damage to an underground facility resulting in death, seri16 ous bodily harm, or actual damage to property exceeding

17 $50,000, or damage to a hazardous liquid underground

18 facility resulting in the release of more than 50 barrels

19 of product, 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 TRANSPORTATION.

22 (a) COORDINATION WITH OTHER RESPONSIBIL23 ITIES.—

24 (1) COORDINATION.—The Secretary shall co25 ordinate the implementation of this Act with the im-
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1 plementation of chapter 601 of title 49, United

2 States Code.

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

4 after the date of enactment of this Act, the Sec5 retary shall review, and report to Congress on, the

6 extent to which any policies, programs, and proce7 dures of the Department of Transportation could be

8 used to achieve the purposes of this Act.

9 (b) MODEL PROGRAM.—

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

11 date of enactment of this Act, the Secretary, in con12 sultation with facility operators, excavators, one-call

13 notification system operators, and State and local

14 governments, shall develop and make available to

15 States a model State program, including a model en16 forcement program. Such model program may be

17 amended by the Secretary on the Secretary’s initia18 tive or in response to reports submitted by the

19 States pursuant to section 9, or as a result of work20 shops conducted under paragraph (3) of this sub21 section.

22 (2) SUGGESTED ELEMENTS.—The model pro23 gram developed under paragraph (1) shall include all

24 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. FEDERAL REPORT.

15 The Secretary shall report annually to Congress on

16 the number and circumstances surrounding accidents

17 caused by routine railroad maintenance.

18 SEC. 11. MORE PROTECTIVE SYSTEMS.

19 Nothing in this Act prohibits a State from imple20 menting a one-call notification system that provides great21 er protection for underground facilities from damage due

22 to excavation than a system established pursuant to this

23 Act.
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1 SEC. 12. USE OF TECHNOLOGIES FOR REMOTE AND ABOVE2 GROUND PIPELINE LOCATION.

3 The Secretary shall consult with other agencies as to

4 the availability and affordability of technologies which will

5 help relocate pipelines from above-ground and remote loca6 tions.

7 SEC. 13. VISION WAIVER STUDY PROGRAM.

8 Pursuant to section 31136(e) of title 49, United

9 States Code, and in order to further substantiate research

10 carried out by the Secretary in fiscal year 1992 under the

11 vision waiver study program, the Secretary shall carry out

12 a follow-up study to such program to include drivers who

13 otherwise would have qualified to participate in the initial

14 vision waiver study but for the time limits on applications

15 and the failure to learn of the program in a timely man16 ner.

17 SEC. 14. SENSE OF CONGRESS; REQUIREMENT REGARDING

18 NOTICE.

19 (a) PURCHASE OF AMERICAN-MADE EQUIPMENT

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

21 greatest extent practicable, all equipment and products

22 purchased with funds made available under this Act

23 should be American-made.

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

25 providing financial assistance under this Act, the Adminis26 trator of the Research and Special Programs Administra-
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1 tion of the Department of Transportation, to the greatest

2 extent practicable, shall provide to each recipient of the

3 assistance a notice describing the statement made in sub4 section (a).

Passed the House of Representatives October 3,

1994.

Attest: DONNALD K. ANDERSON,

Clerk.

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