II

104TH CONGRESS

1ST SESSION S. 164

To require States 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

excavations, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 5, 1995

Mr. BRADLEY (for himself, Mr. SPECTER, Mr. LAUTENBERG, and Mr. EXON)

introduced the following bill; which was read twice and referred to the

Committee on Commerce, Science, and Transportation

A BILL

To require States 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

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 In this Act:
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1 (1) DAMAGE.—The term ‘‘damage’’ means—

2 (A) impact or contact with an underground

3 facility, its appurtenances, or its protective

4 coating; or

5 (B) weakening of the support for the facil6 ity or protective housing that requires repair.

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

8 (A) means an operation in which earth,

9 rock, or other material in the ground is moved,

10 removed, or otherwise displaced by means of a

11 mechanized tool or equipment or by means of

12 an explosive; but

13 (B) does not include—

14 (i) a generally accepted normal agri15 cultural practice or activity taken in sup16 port of such a practice, as determined by

17 each State, including tilling of the soil for

18 agricultural purposes to a depth of 18

19 inches or less;

20 (ii) a generally accepted normal lawn

21 and garden activity, as determined by each

22 State;

23 (iii) the excavation of a gravesite in a

24 cemetery; or
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1 (iv) such routine railroad maintenance

2 as such maintenance would disturb the

3 ground to a depth of no more than 18

4 inches, as measured from the surface of

5 the ground, in accordance with rules ad6 hered to by a railroad requiring under7 ground facilities other than its own to be

8 buried 3 feet or lower on its property or

9 along its right-of-way.

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

11 a person that conducts excavation.

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

13 operator’’ means a person that operates an under14 ground facility.

15 (5) HAZARDOUS LIQUID.—The term ‘‘hazard16 ous liquid’’ has the meaning stated in section

17 60101(a)(4) of title 49, United States Code.

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

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

20 60101(a)(2) of title 49, United States Code.

21 (7) PERSON.—The term ‘‘person’’ includes an

22 agency of Federal, State, or local government.

23 (8) ROUTINE RAILROAD MAINTENANCE.—The

24 term ‘‘routine railroad maintenance’’ includes such

25 activities as ballast cleaning, general ballast work,
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1 track lining and surfacing, signal maintenance, and

2 replacement of crossties.

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

4 the Secretary of Transportation.

5 (10) STATE.—The term ‘‘State’’ has the mean6 ing stated in section 60101(a)(20) of title 49, Unit7 ed States Code.

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

10 maintain a one-call notification system.

11 (12) UNDERGROUND FACILITY.—The term

12 ‘‘underground facility’’—

13 (A) means an underground line, system, or

14 structure used for gathering, storing, transmit15 ting, or distributing oil, petroleum products,

16 other hazardous liquids, natural gas, commu17 nication, electricity, water, steam, sewerage, or

18 any other commodity that the Secretary deter19 mines should be included under the require20 ments of this Act; but

21 (B) does not include a portion of a line,

22 system, or structure if the person that owns or

23 leases, or holds an oil or gas mineral leasehold

24 interest in, the real property in which that por25 tion is located also operates, or has authorized
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1 the operation of, the line, system, or structure

2 only for the purpose of furnishing services or

3 materials to that person, except to the extent

4 that that portion—

5 (i) contains predominantly natural gas

6 or hazardous liquids; and

7 (ii)(I) is located within an easement

8 for a public road (as defined under section

9 101(a) of title 23, United States Code), or

10 a toll highway, bridge, or tunnel (as de11 scribed in section 129(a)(2) of that title);

12 or

13 (II) is located on a mineral lease and

14 is within the boundaries of a city, town, or

15 village.

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.—
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1 (1) IN GENERAL.—Each State shall consider

2 whether to adopt a comprehensive statewide one-call

3 notification program with each element described in

4 section 5, to protect all underground facilities from

5 damage due to any excavation.

6 (2) NEW OR EXISTING PROGRAM.—A State pro7 gram may be provided for through the establishment

8 of a new program or through modification or im9 provement of an existing program, and may be im10 plemented by a nongovernmental organization.

11 (b) PROCEDURES.—

12 (1) NOTICE AND HEARING.—State consider13 ation under subsection (a) shall be undertaken after

14 public notice and hearing and shall be completed

15 within 3 years after the date of enactment of this

16 Act.

17 (2) PART OF GENERAL PROCEEDING.—Such

18 consideration may be undertaken as part of any pro19 ceeding of a State with respect to the safety of pipe20 lines or other underground facilities.

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

22 requirements of subsection (a), the Secretary or any per23 son aggrieved by such failure may in a civil action obtain

24 appropriate relief against any appropriate officer or entity
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1 of the State, including the State itself, to compel such

2 compliance.

3 (d) APPROPRIATENESS.—Nothing in this Act pro4 hibits a State from making a determination that it is not

5 appropriate to adopt a State program described in section

6 5, pursuant to its authority under otherwise applicable

7 State law.

8 SEC. 5. ELEMENTS OF STATE PROGRAM.

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

10 section 4(a) shall include consideration of program ele11 ments that—

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

13 systems that shall—

14 (A) apply to all excavators and to all facil15 ity operators;

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

17 not duplicate the geographical coverage of other

18 one-call notification systems;

19 (C) receive and record appropriate infor20 mation from excavators about intended exca21 vations;

22 (D) inform facility operators of any in23 tended excavations that may be in the vicinity

24 of their underground facilities; and
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1 (E) inform excavators of the identity of fa2 cility operators who will be notified of the in3 tended excavation;

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

5 excavation, with the manner and scope of coverage

6 determined by the State;

7 (3) employ mechanisms to ensure that the gen8 eral public, and in particular all excavators, are

9 aware of the one-call telephone number and the re10 quirements, penalties, and benefits of the State pro11 gram relating to excavations;

12 (4) inform excavators of any procedures that

13 the State has determined must be followed when ex14 cavating;

15 (5) require that any excavator contact the one16 call notification system in accordance with State

17 specifications, which may vary depending on whether

18 the excavation is short term, long term, routine, con19 tinuous, or emergency;

20 (6) require facility operators to provide for lo21 cating and marking or otherwise identifying their fa22 cilities at an excavation site, in accordance with

23 State specifications, which may vary depending on

24 whether the excavation is short term, long term, rou25 tine, continuous, or emergency;
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1 (7) provide effective mechanisms for penalties

2 and enforcement as described in section 6;

3 (8) provide for a fair and appropriate schedule

4 of fees to cover the costs of providing for, maintain5 ing, and operating the State program;

6 (9) provide an opportunity for citizen suits to

7 enforce the State program;

8 (10) require railroads to report any accidents

9 that occur during or as a result of routine railroad

10 maintenance to the Secretary and the appropriate

11 local officials; and

12 (11) provide that when a facility operator be13 lieves that its underground facility is not buried 3

14 feet or lower on railroad property or right-of-way,

15 the facility operator may request permission to enter

16 the railroad property or right-of-way for the purpose

17 of assessing the depth of such underground facility

18 and report its finding to the railroad.

19 (b) EXCEPTION.—When excavation is undertaken by

20 or for a person on real property that is owned or leased

21 by, or in which an oil or gas mineral leasehold interest

22 is held by, that person, and that person operates all under23 ground facilities located at the site of the excavation, a

24 State program may elect not to require that such person
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1 contact the one-call notification system before conducting

2 excavation.

3 SEC. 6. PENALTIES AND ENFORCEMENT.

4 (a) GENERAL PENALTIES.—Each State’s consider5 ation under section 4(a) shall include consideration of a

6 requirement that any excavator or facility operator that

7 violates the requirements of the State program shall be

8 liable for an appropriate administrative or civil penalty.

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

10 damage to an underground facility resulting in death, seri11 ous bodily harm, or actual damage to property exceeding

12 $50,000, or damage to a hazardous liquid underground

13 facility resulting in the release of more than 50 barrels

14 of product, the penalties shall be increased, and an addi15 tional penalty of imprisonment may be assessed for a

16 knowing and willful violation.

17 (c) DECREASED PENALTIES.—Each State’s consider18 ation under section 4(a) shall include consideration of re19 duced penalties for a violation, that results in or could re20 sult in damage, that is promptly reported by the violator.

21 (d) EQUITABLE RELIEF AND MANDAMUS AC22 TIONS.—Each State’s consideration under section 4(a)

23 shall include consideration of provisions for appropriate

24 equitable relief and mandamus actions.
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1 (e) IMMEDIATE CITATION OF VIOLATIONS.—Each

2 State’s consideration under section 4(a) shall include con3 sideration of procedures for issuing a citation of violation

4 at the site and time of the violation.

5 SEC. 7. GRANTS TO STATES.

6 (a) AUTHORITY.—

7 (1) FUNDING.—Using $4,000,000 of the

8 amounts previously collected under section 7005 of

9 the Consolidated Omnibus Budget Reconciliation Act

10 of 1985 (previously codified as 49 U.S.C. App.

11 1682a) or section 60301 of title 49, United States

12 Code, for each of the fiscal years 1996, 1997, and

13 1998, to the extent provided in advance in appro14 priations Acts, the Secretary shall make grants to

15 States, or to operators of one-call notification sys16 tems in such States, that have elected to adopt a

17 State program described in section 5 or to establish

18 and maintain a State program pursuant to sub19 section (b) of this section.

20 (2) GENERAL PURPOSES.—Grants under sub21 section (a) may be used in—

22 (A) establishing one-call notification sys23 tems;

24 (B) modifying existing systems to conform

25 to standards established under this Act; and
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1 (C) improving systems to exceed those

2 standards.

3 (3) PARTICULAR USES.—Grants under sub4 section (a) may be used to—

5 (A) improve communications systems link6 ing one-call notification systems;

7 (B) improve location capabilities, including

8 training personnel and developing and using lo9 cation technology;

10 (C) improve record retention and recording

11 capabilities;

12 (C) enhance public information and edu13 cation campaigns;

14 (E) increase and improve enforcement

15 mechanisms, including administrative process16 ing of violations; and

17 (F) otherwise further the purposes of this

18 Act.

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

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

21 State that establishes or maintains a State program that

22 differs from a State program described in section 5 if the

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

24 and safety and the environment as a State program de25 scribed in section 5.
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1 SEC. 8. DEPARTMENT OF TRANSPORTATION.

2 (a) COORDINATION WITH OTHER RESPONSIBIL3 ITIES.—

4 (1) COORDINATION.—The Secretary shall co5 ordinate the implementation of this Act with the im6 plementation of chapter 601 of title 49, United

7 States Code.

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

9 after the date of enactment of this Act, the Sec10 retary shall review, and report to Congress on, the

11 extent to which any policies, programs, and proce12 dures of the Department of Transportation could be

13 used to achieve the purposes of this Act.

14 (b) MODEL PROGRAM.—

15 (1) DEVELOPMENT.—

16 (A) INITIAL MODEL PROGRAM.—Within 1

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

18 Secretary, in consultation with facility opera19 tors, excavators, one-call notification system op20 erators, and State and local governments, shall

21 develop and make available to States a model

22 State program, including a model enforcement

23 program.

24 (B) AMENDMENTS.—The model program

25 may be amended by the Secretary on the Sec26 retary’s initiative or in response to reports sub-
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1 mitted by the States pursuant to section 9 or

2 as a result of workshops conducted under para3 graph (3).

4 (2) MANDATORY ELEMENTS.—The model pro5 gram developed under paragraph (1) shall include all

6 elements of a State program described in section 5.

7 (3) OTHER ELEMENTS.—The Secretary shall

8 consider incorporating the following elements into

9 the model program:

10 (A) RECORDATION OF INFORMATION.—

11 The one-call notification system or systems

12 shall—

13 (i) receive and record appropriate in14 formation from excavators about intended

15 excavations, including—

16 (I) the name of the person con17 tacting the one-call notification sys18 tem;

19 (II) the name, address, and tele20 phone number of the excavator;

21 (III) the specific location of the

22 intended excavation, along with the

23 starting date thereof and a description

24 of the intended excavation activity;

25 and
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1 (IV) the name, address, and tele2 phone number of the person for whom

3 the work is being performed; and

4 (ii) maintain records on each notice of

5 intent to excavate for the period of time

6 necessary to ensure that such records re7 main available for use in the adjudication

8 of any claims relating to the excavation.

9 (B) PROVISION OF INFORMATION.—The

10 provision of information on excavation require11 ments at the time of issuance of excavation or

12 building permits, or other specific mechanisms

13 for ensuring excavator awareness.

14 (C) ADVANCE CONTACT.—A requirement

15 that any excavator must contact the one-call

16 notification system at least 2 business days,

17 and not more than 10 business days, before ex18 cavation begins.

19 (D) ALTERNATIVE NOTIFICATION PROCE20 DURES.—Alternative notification procedures for

21 excavation activities conducted as a normal part

22 of continuing operations within specific geo23 graphic locations over an extended period of

24 time.
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1 (E) MARKING OF FACILITIES; MONITORING

2 OF EXCAVATION.—A requirement that facility

3 operators—

4 (i) provide for locating and marking,

5 in accordance with the American Public

6 Works Association Uniform Color Code for

7 Utilities, or otherwise identifying, in ac8 cordance with standards established by the

9 State or the American National Standards

10 Institute, their underground facilities at

11 the site of an intended excavation within

12 no more than 2 business days after notifi13 cation of such intended excavation; and

14 (ii) monitor such excavation as appro15 priate.

16 (F) NOTIFICATION OF NO UNDERGROUND

17 FACILITIES.—Provision for notification of exca18 vators if no underground facilities are located

19 at the excavation site.

20 (G) LONGER TIME LIMITATIONS.—Provi21 sion for the approval of a State program under

22 this Act with time limitations longer than those

23 required under subparagraphs (C) and (E) of

24 this paragraph where special circumstances,
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1 such as severe weather conditions or remoteness

2 of location, pertain.

3 (H) UNKNOWN LOCATIONS.—Procedures

4 for excavators and facility operators to follow

5 when the location of underground facilities is

6 unknown.

7 (I) IMPROVEMENT OF CAPABILITIES.—Pro8 cedures to improve underground facility location

9 capabilities, including compiling and notifying

10 excavators, facility operators, and one-call cen11 ters of any information about previously un12 known underground facility locations when such

13 information is discovered.

14 (J) ALTERNATIVE RULES FOR TIMELY

15 COMPLIANCE.—Alternative rules for timely com16 pliance with State program requirements in

17 emergency circumstances.

18 (K) REVOCATION OF LICENSES AND PER19 MITS.—If a State has procedures for licensing

20 or permitting entities to do business, procedures

21 for the revocation of the license or permit to do

22 business of any excavator determined to be a

23 habitual violator of the requirements of the

24 State program.
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1 (4) WORKSHOPS.—Within 6 months after the

2 date of enactment of this Act, and annually there3 after, the Secretary shall conduct workshops with fa4 cility operators, excavators, one-call notification sys5 tem operators, and State and local governments in

6 order to develop, amend, and promote the model

7 program, and to provide an opportunity to share in8 formation among such parties and to recognize State

9 programs that exemplify the goals of this Act.

10 (c) PUBLIC EDUCATION.—The Secretary shall de11 velop, in conjunction with facility operators, excavators,

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

13 governments, public service announcements and other edu14 cational materials and programs to be broadcast or pub15 lished to educate the public about one-call notification sys16 tems, including the national phone number.

17 SEC. 9. STATE REPORTS.

18 (a) REQUIREMENT.—

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

20 date of enactment of this Act, each State shall sub21 mit to the Secretary a report on progress made in

22 implementing this Act.

(2) STATUS REPORTS.—Within 41 23 ⁄2 years after

24 the date of enactment of this Act, and annually

25 thereafter, each State shall report to the Secretary
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1 on the status of its State program, if any, and its

2 requirements, and any other information the Sec3 retary requires.

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

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

6 develop and distribute to the States a simplified form for

7 complying with the reporting requirements of subsection

8 (a)(2).

9 SEC. 10. FEDERAL REPORT.

10 The Secretary shall report annually to Congress on

11 the number and circumstances surrounding accidents

12 caused by routine railroad maintenance.

13 SEC. 11. MORE PROTECTIVE SYSTEMS.

14 Nothing in this Act prohibits a State from imple15 menting a one-call notification system that provides great16 er protection for underground facilities from damage due

17 to excavation than a system established pursuant to this

18 Act.

19 SEC. 12. USE OF TECHNOLOGIES FOR REMOTE AND ABOVE20 GROUND PIPELINE LOCATION.

21 The Secretary shall consult with other agencies as to

22 the availability and affordability of technologies which will

23 help relocate pipelines from above-ground and remote loca24 tions.

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