68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
Senate Bill 559
Sponsored by Senator HANNON; Representative MARKHAM (at the
request of Northwest Natural Gas)
CHAPTER ................
AN ACT
Relating to excavation regulation; creating new provisions; and
repealing ORS 757.541, 757.546, 757.551, 757.556, 757.561,
757.566 and 757.571.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. { + As used in
sections 1 to 7 of this Act:
(1) 'Business day' means any 24-hour day other than a Saturday,
Sunday or federal or state legal holiday.
(2) 'Damage' means harm to or destruction of underground
facilities including, but not limited to, the weakening of
structural, lateral or subjacent support; the penetration,
impairment or destruction of any coating, housing or other
protective device; and the denting of, penetration into or
severance of underground facilities.
(3) 'Excavation' means any operation in which earth, rock or
other material on or below the ground is moved or otherwise
displaced by any means, except sidewalk, road and ditch
maintenance less than 12 inches in depth that does not lower the
road grade or original ditch flow line. 'Excavation' does not
include the tilling of soil for agricultural purposes conducted
on private property that is not within the boundaries of a
recorded right of way or easement for underground facilities.
(4) 'Excavator' means any person who engages in excavation.
(5) 'Operator' means any person, public utility, municipal
corporation, political subdivision of the state or other person
with control over underground facilities.
(6) 'Underground facilities' means items partially or entirely
below the surface of the ground for use in connection with the
storage or conveyance of electrical energy, water, sewage,
petroleum products, gas, gaseous vapors or hazardous liquids, or
the transmission of electronic, telephonic, telegraphic or cable
communications. Such items include, but are not limited to,
pipes, sewers, conduits, cables, valves, lines, wires, manholes,
attachments and those parts of poles or anchors that are
underground.
(7) 'Unlocatable underground facilities' means underground
facilities that cannot be marked with reasonable accuracy,
including nonconductive sewers and nonmetallic underground
facilities that have no trace wires. + }
**************************** SECTION 2. { + (1)(a) The Oregon
Utility Notification Center is created as an independent
not-for-profit public corporation. The corporation shall be
governed by a board of directors consisting of one member
appointed to represent each of the following:
(A) Cities with a population of 25,000 or more;
(B) Cities with a population under 25,000;
(C) Counties;
(D) Natural gas utilities regulated by the Public Utility
Commission under ORS chapter 757;
(E) Electric utilities regulated by the Public Utility
Commission under ORS chapter 757;
(F) Water districts, special districts, sanitary districts or
water and sanitary authorities;
(G) Telecommunications utilities serving less than 15,000
access lines and regulated by the Public Utility Commission under
ORS chapter 759;
(H) Telecommunications utilities serving 15,000 access lines or
more and regulated by the Public Utility Commission under ORS
chapter 759;
(I) Telecommunications cooperatives;
(J) Electric cooperatives;
(K) People's utility districts;
(L) Contractors;
(M) Excavators;
(N) Railroads;
(O) Cable system operators; and
(P) Municipal electric utilities.
(b) To facilitate appointment of members of the first board of
directors, the Public Utility Commission shall, by order, select
organizations that are most representative of each of the groups
set forth in paragraph (a) of this subsection. Each organization
so selected may nominate a member for the board and may, within
the time allowed by the commission's order, submit the name of
the nominee to the Governor, who shall consider the nominee
before making any other appointment to the board.
(c) After appointment of the first board of directors, to
facilitate appointment of new members to the board, the board
shall, by rule, select organizations that are most representative
of each of the groups set forth in paragraph (a) of this
subsection. Each organization so selected may nominate a member
for the board and may, within the time allowed by rule, submit
the name of the nominee to the Governor, who shall consider the
nominee before making any other appointment to the board.
(d) If the board of directors determines that a group not
listed in paragraph (a) of this subsection should be represented
on the board, the board may select an organization that is most
representative of the group and may ask that organization to
nominate a member. Upon receipt of the nomination, the board may
request that the Governor appoint the nominee.
(e) The Governor shall also appoint to the board of directors
one employee of the commission and one employee of the Department
of Transportation.
(2) The term of office of a member is four years. A member is
eligible for reappointment. Before the expiration of the term of
a member, the board of directors shall solicit a nomination as
provided in subsection (1) of this section and the Governor shall
appoint a successor. If there is a vacancy for any cause, the
board shall solicit a nomination as provided in subsection (1) of
this section and the Governor shall make an appointment to become
immediately effective for the unexpired term. A member may
continue to serve until a successor is appointed. Nothing in this
subsection or subsection (1) of this section shall restrict the
authority of the Governor to appoint a person other than one of
Enrolled Senate Bill 559 Page 2
the persons nominated according to this subsection or subsection
(1) of this section.
(3) The board of directors shall select one of its members as
chairperson and another as vice chairperson, for such terms and
with such duties and powers as the board considers necessary for
the performance of the functions of those offices. A minimum of
seven of the members of the board constitutes a quorum for the
transaction of business.
(4) The board of directors shall meet at least once every three
months at a time and place determined by the board. The board
shall meet at such other times and places specified by the call
of the chairperson or of a majority of the members of the
board. + }
**************************** SECTION 3. { + (1) It is the
function of the board of directors to operate the Oregon Utility
Notification Center, through which a person shall notify
operators of underground facilities of proposed excavations and
request that the underground facilities be marked.
(2) The board of directors shall:
(a) Utilize a competitive process to contract with any
qualified person to provide the notification required under
subsection (1) of this section.
(b) Subject to subsection (3) of this section, establish rates,
on a per call basis, under which subscribers shall pay to fund
all of the activities of the Oregon Utility Notification Center.
(c) Adopt rules according to ORS 183.310 to 183.550 to become
effective July 1, 1997, that regulate the notification and
marking of underground facilities to prevent damage to
underground facilities. The rules, insofar as is practicable,
shall be consistent with the Oregon Utilities Coordinating
Council Standards Manual of March 31, 1995.
(3) The Oregon Utility Notification Center shall have all of
the powers of a state agency. Except as provided in subsection
(2) of this section, the provisions of ORS chapters 240, 276,
279, 282, 283, 291, 292 and 293 shall not apply to the Oregon
Utility Notification Center.
(4) Notwithstanding subsection (2)(b) of this section, the
board of directors shall not establish rates or other charges
that require payments from any subscriber who receives fewer than
50 telephone calls in the calendar year or that result in annual
payments of more than $500 for any of the following subscribers:
(a) Cities with a population under 15,000;
(b) Telecommunications utilities serving fewer than 15,000
access lines and regulated by the Public Utility Commission under
ORS chapter 759;
(c) Cable system operators serving fewer than 15,000 customers;
(d) Utilities, special districts, people's utility districts or
authorities providing electricity, water or sanitary sewer
service to fewer than 15,000 residential customers; and
(e) Telecommunications cooperatives. + }
**************************** SECTION 4. { + (1) On or before
July 1, 1997, every operator of underground facilities shall
subscribe to the Oregon Utility Notification Center.
(2) On and after July 1, 1997, any person intending to excavate
shall notify the Oregon Utility Notification Center at least two
but not more than 10 business days before commencing an
excavation. The board of directors shall, by rule, provide an
exception to the requirement of advance notice for excavators in
cases that involve an immediate danger to life or property, or a
Enrolled Senate Bill 559 Page 3
customer service outage. The board may adopt additional
exceptions as the board, in its discretion, determines necessary.
(3) After July 1, 1997, nonsubscribing operators of underground
facilities shall be responsible to all injured parties for all
costs associated with damages to such facilities, loss of product
or service or damages that occur as a result of excavation where
the facilities damaged are under the control of the
nonsubscribing operator and proper notice was given to the Oregon
Utility Notification Center.
(4) The provisions of this section shall not apply to operators
of underground facilities that are located entirely on private
property and that provide services exclusively for the use of
residents or owners of the property. + }
**************************** SECTION 5. { + (1) The board of
directors shall file with the Legislative Assembly and the
Governor, not later than April 15 of each year, a report covering
the activities and operations of the Oregon Utility Notification
Center for the preceding calendar year according to the
provisions of ORS 192.230 to 192.250.
(2) In carrying out the duties, functions and powers imposed by
law on the Oregon Utility Notification Center, the board of
directors may contract with any state agency or private party for
the performance of such duties, functions and powers as the board
considers appropriate. + }
**************************** SECTION 6. { + Section 7 of this
Act is added to and made a part of ORS chapter 757. + }
**************************** SECTION 7. { + (1) Except as
provided in subsection (2) of this section and in addition to all
other penalties provided by law, every person who violates or who
procures, aids or abets in the violation of any rule of the
Oregon Utility Notification Center shall incur a penalty of not
more than $1,000 for the first violation and not more than $5,000
for each subsequent violation.
(2) In addition to all other penalties provided by law, every
person who intentionally violates or who intentionally procures,
aids or abets in the violation of any rule of the Oregon Utility
Notification Center shall incur a penalty of not more than $5,000
for the first violation and not more than $10,000 for each
subsequent violation.
(3) Each violation of any rule of the Oregon Utility
Notification Center shall be a separate offense. In the case of a
continuing violation, each day that the violation continues shall
constitute a separate violation.
(4) Penalties under this section shall not be imposed except by
order following complaint as provided in ORS 756.500 to 756.610.
A complaint must be filed within two years following the date of
the violation.
(5) The Public Utility Commission may reduce any penalty
provided in this section on such terms as the commission
considers proper if:
(a) The defendant admits to the violation or violations alleged
in the complaint and makes a timely request for reduction of the
penalty; or
(b) The defendant submits to the commission a written request
for reduction of the penalty within 15 days from the date of the
penalty order.
(6) If the amount of the penalty is not paid to the commission,
the Attorney General, at the request of the commission, shall
bring an action in the name of the State of Oregon in the Circuit
Court for Marion County to recover the penalty. The action shall
Enrolled Senate Bill 559 Page 4
not be commenced until after the time has expired for an appeal
from the findings, conclusions and order of the commission.
(7) Notwithstanding any other provision of law, the commission
shall pay penalties recovered under this section to the Oregon
Utility Notification Center.
(8) The commission shall not seek penalties under this section
except in response to a complaint alleging a violation of a rule
or rules adopted by the Oregon Utility Notification Center. The
commission may investigate any such complaint, and the commission
shall have sole discretion to seek penalties under this
section. + }
**************************** SECTION 8. { + ORS 757.541,
757.546, 757.551, 757.556, 757.561, 757.566 and 757.571 are
repealed June 30, 1997. + }
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Passed by Senate May 8, 1995
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 3, 1995
...........................................................
Speaker of House
Enrolled Senate Bill 559 Page 5
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled Senate Bill 559 Page 6