IIA
103D CONGRESS
2D SESSION
H. R. 5248
IN THE SENATE OF THE UNITED STATES
OCTOBER 8 (legislative day, SEPTEMBER 12), 1994
Received; read twice and referred to the Committee on Commerce, Science,
and Transportation
AN ACT
To require States to consider adopting mandatory, com-
prehensive, 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
TITLE I—ONE-CALL
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Comprehensive One-
Call Notification Act of 1994’’.
SEC. 102. DEFINITIONS.
For purposes of this title, the following definitions
apply:
(1) DAMAGE.—The term ‘‘damage’’ means any
impact or contact with an underground facility, its
appurtenances, or its protective coating, or weaken-
ing of the support for the facility or protective hous-
ing, which requires repair.
(2) 
EXCAVATION.—The 
term 
‘‘excavation’’
means any operation in which earth, rock, or other
material in the ground is moved, removed, or other-
wise displaced by means of any mechanized tools or
equipment, or any explosive, but shall not include—
(A) any generally accepted normal agricul-
tural practices and activities taken in support
thereof, as determined by each State, including
tilling of the soil for agricultural purposes to a
depth of 18 inches or less;
(B) generally accepted normal lawn and
garden activities, as determined by each State;
(C) the excavation of a gravesite in a cem-
etery; and
(D) routine railroad maintenance as long
as such maintenance would disturb the ground
to a depth of no more than 18 inches as meas-
ured from the surface of the ground and the
railroad has rules requiring underground facili-
ties other than its own to be buried 3 feet or
lower on its property or along its right-of-way.
When a facility operator believes that its under-
ground facility is not buried 3 feet or lower on rail-
road property or right-of-way, the facility operator
may request permission to enter the railroad prop-
erty or right-of-way for the purpose of assessing the
depth of such underground facility and report its
finding to the railroad.
(3) EXCAVATOR.—The term ‘‘excavator’’ means
a person who conducts excavation.
(4) FACILITY OPERATOR.—The term ‘‘facility
operator’’ means any person who operates an under-
ground facility.
(5) HAZARDOUS LIQUID.—The term ‘‘hazard-
ous liquid’’ has the meaning given such term in sec-
tion 60101(a)(4) of title 49, United States Code.
(6) NATURAL GAS.—The term ‘‘natural gas’’
has the meaning given the term ‘‘gas’’ in section
60101(a)(2) of title 49, United States Code.
(7) PERSON.—The term ‘‘person’’ includes any
agency of Federal, State, or local government.
(8) ROUTINE
RAILROAD
MAINTENANCE.—The
term ‘‘routine railroad maintenance’’ includes such
activities as ballast cleaning, general ballast work,
track lining and surfacing, signal maintenance, and
the replacement of crossties.
(9) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Transportation.
(10) STATE.—The term ‘‘State’’ has the mean-
ing given such term in section 60101(a)(20) of title
49, United States Code.
(11) STATE PROGRAM.—The term ‘‘State pro-
gram’’ means the program of a State to establish or
maintain a one-call notification system.
(12) 
UNDERGROUND
FACILITY.—The 
term
‘‘underground facility’’ means any underground line,
system, or structure used for gathering, storing,
transmitting, or distributing oil, petroleum products,
other hazardous liquids, natural gas, communication,
electricity, water, steam, sewerage, or any other
commodities the Secretary determines should be in-
cluded under the requirements of this title, but such
term does not include a portion of a line, system, or
structure if the person who owns or leases, or holds
an oil or gas mineral leasehold interest in, the real
property in which such portion is located also oper-
ates, or has authorized the operation of, the line,
system, or structure only for the purpose of furnish-
ing services or materials to such person, except to
the extent that such portion contains predominantly
natural gas or hazardous liquids and—
(A) is located within an easement for a
public road (as defined under section 101(a) of
title 23, United States Code), or a toll highway,
bridge, or tunnel (as described in section
129(a)(2) of such title); or
(B) is located on a mineral lease and is
within the boundaries of a city, town, or village.
SEC. 103. NATIONWIDE TOLL-FREE NUMBER SYSTEM.
Within 1 year after the date of enactment of this Act,
the Secretary shall, in consultation with the Federal Com-
munications Commission, facility operators, excavators,
and one-call notification system operators, provide for the
establishment of a nationwide toll-free telephone number
system to be used by State one-call notification systems.
SEC. 104. STATE PROGRAMS.
(a) CONSIDERATION.—Each State shall consider
whether to adopt a comprehensive statewide one-call noti-
fication program with each element described in section
105, to protect all underground facilities from damage due
to any excavation. Such State program may be provided
for through the establishment of a new program, or
through modification or improvement of an existing pro-
gram, and may be implemented by a nongovernmental or-
ganization.
(b) PROCEDURES.—State consideration under sub-
section (a) shall be undertaken after public notice and
hearing, and shall be completed within 3 years after the
date of enactment of this Act. Such consideration may be
undertaken as part of any proceeding of a State with re-
spect to the safety of pipelines or other underground
facilities.
(c) COMPLIANCE.—If a State fails to comply with the
requirements of subsection (a), the Secretary or any per-
son aggrieved by such failure may in a civil action obtain
appropriate relief against any appropriate officer or entity
of the State, including the State itself, to compel such
compliance.
(d) APPROPRIATENESS.—Nothing in this title pro-
hibits a State from making a determination that it is not
appropriate to adopt a State program described in section
105, pursuant to its authority under otherwise applicable
State law.
SEC. 105. ELEMENTS OF STATE PROGRAM.
(a) IN GENERAL.—Each State’s consideration under
section 104(a) shall include consideration of program ele-
ments that—
(1) provide for a one-call notification system or
systems which shall—
(A) apply to all excavators and to all facil-
ity operators;
(B) operate in all areas of the State and
not duplicate the geographical coverage of other
one-call notification systems;
(C) receive and record appropriate infor-
mation from excavators about intended exca-
vations;
(D) inform facility operators of any in-
tended excavations that may be in the vicinity
of their underground facilities; and
(E) inform excavators of the identity of fa-
cility operators who will be notified of the in-
tended excavation;
(2) provide for 24-hour coverage for emergency
excavation, with the manner and scope of coverage
determined by the State;
(3) employ mechanisms to ensure that the gen-
eral public, and in particular all excavators, are
aware of the one-call telephone number and the re-
quirements, penalties, and benefits of the State pro-
gram relating to excavations;
(4) inform excavators of any procedures that
the State has determined must be followed when ex-
cavating;
(5) require that any excavator must contact the
one-call notification system in accordance with State
specifications, which may vary depending on whether
the excavation is short term, long term, routine, con-
tinuous, or emergency;
(6) require facility operators to provide for lo-
cating and marking or otherwise identifying their fa-
cilities at an excavation site, in accordance with
State specifications, which may vary depending on
whether the excavation is short term, long term, rou-
tine, continuous, or emergency;
(7) provide effective mechanisms for penalties
and enforcement as described in section 106;
(8) provide for a fair and appropriate schedule
of fees to cover the costs of providing for, maintain-
ing, and operating the State program;
(9) provide an opportunity for citizen suits to
enforce the State program; and
(10) require railroads to report any accidents
that occur during or as a result of routine railroad
maintenance to the Secretary and the appropriate
local officials.
(b) EXCEPTION.—Where excavation is undertaken by
or for a person, on real property owned or leased, or in
which an oil or gas mineral leasehold interest is held, by
that person, and the same person operates all under-
ground facilities located at the site of the excavation, a
State program may elect not to require that such person
contact the one-call notification system before excavating.
SEC. 106. PENALTIES AND ENFORCEMENT.
(a) GENERAL PENALTIES.—Each State’s consider-
ation under section 104(a) shall include consideration of
a requirement that any excavator or facility operator who
violates the requirements of the State program shall be
liable for an appropriate administrative or civil penalty.
(b) INCREASED PENALTIES.—If a violation results in
damage to an underground facility resulting in death, seri-
ous bodily harm, or actual damage to property exceeding
$50,000, or damage to a hazardous liquid underground
facility resulting in the release of more than 50 barrels
of product, the penalties shall be increased, and an addi-
tional penalty of imprisonment may be assessed for a
knowing and willful violation.
(c) DECREASED PENALTIES.—Each State’s consider-
ation under section 104(a) shall include consideration of
reduced penalties for a violation, that results in or could
result in damage, that is promptly reported by the viola-
tor.
(d) EQUITABLE
RELIEF
AND
MANDAMUS
AC-
TIONS.—Each State’s consideration under section 104(a)
shall include consideration of provisions for appropriate
equitable relief and mandamus actions.
(e) IMMEDIATE CITATION
OF VIOLATIONS.—Each
State’s consideration under section 104(a) shall include
consideration of procedures for issuing a citation of viola-
tion at the site and time of the violation.
SEC. 107. GRANTS TO STATES.
(a) AUTHORITY.—Using $4,000,000 of the amounts
previously collected under section 7005 of the Consoli-
dated Omnibus Budget Reconciliation Act of 1985 (pre-
viously codified as 49 U.S.C. App. 1682a) or section
60301 of title 49, United States Code, for each of the fis-
cal years 1996, 1997, and 1998, to the extent provided
in advance in appropriations Acts, the Secretary shall
make grants to States, or to operators of one-call notifica-
tion systems in such States, which have elected to adopt
a State program described in section 105, or to establish
and maintain a State program pursuant to subsection (b)
of this section. Such grants may be used in establishing
one-call notification systems, modifying existing systems
to conform to standards established under this title, and
improving systems to exceed such standards. Such grants
may be used to—
(1) improve communications systems linking
one-call notification systems;
(2) improve location capabilities, including
training personnel and developing and using location
technology;
(3) improve record retention and recording ca-
pabilities;
(4) enhance public information and education
campaigns;
(5) increase and improve enforcement mecha-
nisms, including administrative processing of viola-
tions; and
(6) otherwise further the purposes of this title.
(b) ALTERNATE FORM OF STATE PROGRAM.—The
Secretary may make a grant under subsection (a) to a
State that establishes or maintains a State program that
differs from a State program described in section 105 if
such State program is at least as protective of the public
health and safety and the environment as a State program
described in section 105.
SEC. 108. DEPARTMENT OF TRANSPORTATION.
(a) COORDINATION
WITH
OTHER
RESPONSIBIL-
ITIES.—
(1) COORDINATION.—The Secretary shall co-
ordinate the implementation of this title with the im-
plementation of chapter 601 of title 49, United
States Code.
(2) REVIEW OF PROGRAMS.—Within 18 months
after the date of enactment of this Act, the Sec-
retary shall review, and report to Congress on, the
extent to which any policies, programs, and proce-
dures of the Department of Transportation could be
used to achieve the purposes of this title.
(b) MODEL PROGRAM.—
(1) DEVELOPMENT.—Within 1 year after the
date of enactment of this Act, the Secretary, in con-
sultation with facility operators, excavators, one-call
notification system operators, and State and local
governments, shall develop and make available to
States a model State program, including a model en-
forcement program. Such model program may be
amended by the Secretary on the Secretary’s initia-
tive or in response to reports submitted by the
States pursuant to section 109, or as a result of
workshops conducted under paragraph (3) of this
subsection.
(2) SUGGESTED ELEMENTS.—The model pro-
gram developed under paragraph (1) shall include all
elements of a State program described in section
105. The Secretary shall consider incorporating the
following elements into the model program:
(A) The one-call notification system or sys-
tems shall—
(i) receive and record appropriate in-
formation from excavators about intended
excavations, including—
(I) the name of the person con-
tacting the one-call notification sys-
tem;
(II) the name, address, and tele-
phone number of the excavator;
(III) the specific location of the
intended excavation, along with the
starting date thereof and a description
of the intended excavation activity;
and
(IV) the name, address, and tele-
phone number of the person for whom
the work is being performed; and
(ii) maintain records on each notice of
intent to excavate for the period of time
necessary to ensure that such records re-
main available for use in the adjudication
of any claims relating to the excavation.
(B) The provision of information on exca-
vation requirements at the time of issuance of
excavation or building permits, or other specific
mechanisms for ensuring excavator awareness.
(C) A requirement that any excavator
must contact the one-call notification system at
least 2 business days, and not more than 10
business days, before excavation begins.
(D) Alternative notification procedures for
excavation activities conducted as a normal part
of ongoing operations within specific geographic
locations over an extended period of time.
(E) A requirement that facility opera-
tors—
(i) provide for locating and marking,
in accordance with the American Public
Works Association Uniform Color Code for
Utilities, or otherwise identifying, in ac-
cordance with standards established by the
State or the American National Standards
Institute, their underground facilities at
the site of an intended excavation within
no more than 2 business days after notifi-
cation of such intended excavation; and
(ii) monitor such excavation as appro-
priate.
(F) Provision for notification of excavators
if no underground facilities are located at the
excavation site.
(G) Provision for the approval of a State
program under this title with time limitations
longer than those required under subpara-
graphs (C) and (E) of this paragraph where
special circumstances, such as severe weather
conditions or remoteness of location, pertain.
(H) Procedures for excavators and facility
operators to follow when the location of under-
ground facilities is unknown.
(I) Procedures to improve underground fa-
cility location capabilities, including compiling
and notifying excavators, facility operators, and
one-call centers of any information about pre-
viously unknown underground facility locations
when such information is discovered.
(J) Alternative rules for timely compliance
with State program requirements in emergency
circumstances.
(K) If a State has procedures for licensing
or permitting entities to do business, procedures
for the revocation of the license or permit to do
business of any excavator determined to be a
habitual violator of the requirements of the
State program.
(3) WORKSHOPS.—Within 6 months after the
date of enactment of this Act, and annually there-
after, the Secretary shall conduct workshops with fa-
cility operators, excavators, one-call notification sys-
tem operators, and State and local governments in
order to develop, amend, and promote the model
program, and to provide an opportunity to share in-
formation among such parties and to recognize State
programs that exemplify the goals of this title.
(c) PUBLIC EDUCATION.—The Secretary shall de-
velop, in conjunction with facility operators, excavators,
one-call notification system operators, and State and local
governments, public service announcements and other edu-
cational materials and programs to be broadcast or pub-
lished to educate the public about one-call notification sys-
tems, including the national phone number.
SEC. 109. STATE REPORTS.
(a) REQUIREMENT.—