Florida Senate - 2014 SB 288
By Senator Richter
23-00308A-14 2014288__
1 A bill to be entitled
2 An act relating to underground facility damage
3 prevention and safety; amending s. 556.102, F.S.;
4 revising the definition of the term “premark” as it
5 relates to the Underground Facility Damage Prevention
6 and Safety Act; amending s. 556.105, F.S.; requiring
7 all member operators including those with state-owned
8 underground facilities located within the right-of-way
9 of a state highway to be notified through the free
10 access notification system of a proposed excavation or
11 demolition; amending s. 556.106, F.S.; conforming a
12 cross-reference; amending s. 556.107, F.S.; creating
13 an additional noncriminal infraction for the failure
14 of an excavator to notify the member operator in
15 certain circumstances; amending s. 556.108, F.S.;
16 eliminating an exemption; requiring an excavator to
17 provide notice through the free-access notification
18 system before beginning certain excavations,
19 demolitions, or maintenance activities; amending s.
20 556.114, F.S.; clarifying provisions relating to
21 member operators and excavators; amending s. 556.116,
22 F.S.; revising the definition of the term “high
23 priority subsurface installation” to include all
24 underground pipelines or facilities; authorizing a
25 member operator to deem a pipeline or facility a high
26 priority subsurface installation; providing that a
27 decision not to deem a pipeline or facility a high
28 priority subsurface installation does not constitute a
29 basis for recovery; requiring an excavator to provide
30 the operator with current and accurate contact
31 information when notifying the operator of a planned
32 excavation; requiring that an alleged commission of an
33 infraction reasonably believed to be the proximate
34 cause of an incident to be reported to the free-access
35 notification system within a certain timeframe;
36 authorizing the Division of Administrative Hearings to
37 approve a settlement within certain parameters in lieu
38 of conducting a full hearing; providing that the venue
39 for the hearing is the county in which the incident
40 occurred rather than the county in which the
41 underground facility is located; amending s. 337.401,
42 F.S.; making technical changes and conforming cross
43 references; providing an effective date.
44
45 Be It Enacted by the Legislature of the State of Florida:
46
47 Section 1. Subsection (11) of section 556.102, Florida
48 Statutes, is amended to read:
49 556.102 Definitions.—As used in this act:
50 (11) “Premark” means to delineate the general scope of the
51 excavation on the surface of the ground using white paint, white
52 stakes, or other similar white markings, electronic markings, or
53 other industry-accepted methods.
54 Section 2. Subsection (5) of section 556.105, Florida
55 Statutes, is amended to read:
56 556.105 Procedures.—
57 (5) All member operators within the defined area of a
58 proposed excavation or demolition shall be promptly notified
59 through the system pursuant to this section, except that member
60 operators with state-owned underground facilities located within
61 the right-of-way of a state highway need not be notified of
62 excavation or demolition activities and are under no obligation
63 to mark or locate the facilities.
64 (a) If a member operator determines that a proposed
65 excavation or demolition is in proximity to or in conflict with
66 an underground facility of the member operator, except a
67 facility beneath the waters of the state, which is governed by
68 paragraph (b), the member operator shall identify the horizontal
69 route by marking to within 24 inches from the outer edge of
70 either side of the underground facility by the use of stakes,
71 paint, flags, or other suitable means within 2 full business
72 days after the time the notification is received under
73 subsection (1). If the member operator is unable to identify the
74 horizontal route respond within such time, the member operator
75 shall communicate with the person making the request and
76 negotiate in good faith a new schedule and time to mark the
77 underground facility which that is mutually agreeable to, and
78 which should not unreasonably delay, the excavator.
79 (b) If a member operator determines that a proposed
80 excavation is in proximity to or in conflict with an underground
81 facility of the member operator beneath the waters of the state,
82 the member operator shall identify the estimated horizontal
83 route of the underground facility, within 10 business days,
84 using marking buoys or other suitable devices, unless directed
85 otherwise by an agency having jurisdiction over the waters of
86 the state under which the member operator’s underground facility
87 is located.
88 (c) If When excavation is to take place within a tolerance
89 zone, an excavator shall use increased caution to protect
90 underground facilities. The protection requires hand digging,
91 pot holing, soft digging, vacuum excavation methods, or other
92 similar procedures to identify underground facilities. Any use
93 of mechanized equipment within the tolerance zone must be
94 supervised by the excavator.
95 Section 3. Subsection (7) of section 556.106, Florida
96 Statutes, is amended to read:
97 556.106 Liability of the member operator, excavator, and
98 system.—
99 (7) An excavator or a member operator who performs an any
100 excavation with hand tools under s. 556.108(3)(b) or (4) s.
101 556.108(4)(c) or (5) is liable for any damage to any operator’s
102 underground facilities damaged during such excavation.
103 Section 4. Paragraph (a) of subsection (1) of section
104 556.107, Florida Statutes, is amended to read:
105 556.107 Violations.—
106 (1) NONCRIMINAL INFRACTIONS.—
107 (a) Violations of the following provisions are noncriminal
108 infractions:
109 1. Section 556.105(1), relating to providing required
110 information.
111 2. Section 556.105(6), relating to the avoidance of
112 excavation.
113 3. Section 556.105(11), relating to the need to stop
114 excavation or demolition because marks are no longer visible,
115 or, in the case of underwater facilities, are inadequately
116 documented.
117 4. Section 556.105(12), relating to the need to cease
118 excavation or demolition activities because of contact or damage
119 to an underground facility.
120 5. Section 556.105(5)(a) and (b), relating to
121 identification of underground facilities, if a member operator
122 does not mark an underground facility, but not if a member
123 operator marks an underground facility incorrectly.
124 6. Section 556.109(2), relating to falsely notifying the
125 system of an emergency situation or condition.
126 7. Section 556.114(1)-(4) Section 556.114(1), (2), (3), and
127 (4), relating to a failure to follow low-impact marking
128 practices, as defined therein.
129 8. Section 556.116(2)(b), relating to the failure of an
130 excavator to notify a member operator of the start date and time
131 for a planned excavation that is within the vicinity of a high
132 priority subsurface installation, when the excavator has been
133 timely notified by the member operator, either directly or
134 through the system, of the existence of a high-priority
135 subsurface installation.
136 Section 5. Section 556.108, Florida Statutes, is amended to
137 read:
138 556.108 Exemptions.—The notification requirements provided
139 in s. 556.105(1) do not apply to:
140 (1) Any excavation or demolition performed by the owner of
141 a single-family residential property, not including property
142 that is subdivided or is to be subdivided into more than one
143 single-family residential property; or for such owner by a
144 member operator or an agent of a member operator when such
145 excavation or demolition is made entirely on such land, and only
146 up to a depth of 10 inches; provided due care is used and there
147 is no encroachment on any member operator’s right-of-way,
148 easement, or permitted use.
149 (2) Any excavation or demolition associated with normal
150 agricultural or railroad activities, provided such activities
151 are not performed on any operator’s marked right-of-way,
152 easement, or permitted use.
153 (3) Any excavation or demolition that occurs as the result
154 of normal industrial activities, provided such activities are
155 confined to the immediate secured property of the facility and
156 the activities are not performed on any operator’s marked right
157 of-way, easement, or permitted use. For the purposes of this
158 act, the industrial activities are limited to the following list
159 of Standard Industrial Classifications: Industry Group Numbers
160 141, 206, 242, 243, and 491, and Major Group Numbers 13, 26, 28,
161 and 29, as published by the United States Office of Management
162 and Budget in 1987.
163 (3)(4) Any excavation of 18 inches or less for:
164 (a) Surveying public or private property by surveyors or
165 mappers as defined in chapter 472 and services performed by a
166 pest control licensee under chapter 482, excluding marked
167 rights-of-way, marked easements, or permitted uses where marked,
168 if mechanized equipment is not used in the process of such
169 surveying or pest control services and the surveying or pest
170 control services are performed in accordance with the practice
171 rules established under s. 472.027 or s. 482.051, respectively;
172 or
173 (b) Maintenance activities performed by a state agency and
174 its employees when such activities are within the right-of-way
175 of a public road; however, if a member operator has permanently
176 marked facilities on such right-of-way, mechanized equipment may
177 not be used without first providing notification; or
178 (b)(c) Locating, repairing, connecting, adjusting, or
179 routine maintenance of a private or public underground utility
180 facility by an excavator, if the excavator is performing such
181 work for the current owner or future owner of the underground
182 facility and if mechanized equipment is not used.
183 (4)(5)(a) Any excavation with hand tools by a member
184 operator or an agent of a member operator for:
185 1. Locating, repairing, connecting, or protecting, or
186 routine maintenance of, the member operator’s underground
187 facilities; or
188 2. The extension of a member operator’s underground
189 facilities onto the property of a person to be served by such
190 facilities.
191 (b) The exemption provided in this subsection is limited to
192 excavations to a depth of 30 inches if the right-of-way has
193 permanently marked facilities of a company other than the member
194 operator or its agents performing the excavation.
195 Section 6. Subsection (4) of section 556.114, Florida
196 Statutes, is amended to read:
197 556.114 Low-impact marking practices.—
198 (4) A member operator shall identify the horizontal route
199 of its underground facilities as set forth in s. 556.105(5)(a)
200 and (b), and excavators shall premark an excavation site as set
201 forth in subsection (3) using flags or stakes or temporary,
202 nonpermanent paint or other industry-accepted low-impact marking
203 practices.
204 Section 7. Subsections (1) through (4) of section 556.116,
205 Florida Statutes, are amended, and subsection (6) is added to
206 that section, to read:
207 556.116 High-priority subsurface installations; special
208 procedures.—
209 (1) As used in this section, the term:
210 (a) “Division” means the Division of Administrative
211 Hearings.
212 (b) “High-priority subsurface installation” means an
213 underground gas transmission or gas distribution pipeline or
214 facility that, an underground pipeline used to transport
215 gasoline, jet fuel, or any other refined petroleum product or
216 hazardous or highly volatile liquid, such as anhydrous ammonia
217 or carbon dioxide, if the pipeline is deemed to be critical by
218 the operator of the pipeline or facility and:
219 1. Is identified as a high-priority subsurface installation
220 to an excavator who has provided a notice of intent to excavate
221 pursuant to s. 556.105(1);, or
222 2. Would have been identified as a high-priority subsurface
223 installation except for the excavator’s failure to give proper
224 notice of intent to excavate.
225 (c) “Incident” means an event that involves damage to a
226 high-priority subsurface installation that has been identified
227 as such by the operator according to the notification procedures
228 set forth in subsection (2) and that:
229 1. Results in death or serious bodily injury requiring
230 inpatient hospitalization.
231 2. Results in property damage, including service
232 restoration costs, in an amount in excess of $50,000 or
233 interruption of service to 2,500 or more customers or users.
234 (2) A member operator may deem any underground pipeline or
235 facility owned or operated by such member operator to be a high
236 priority subsurface installation and may identify it as such to
237 an excavator. A decision by a member operator not to identify a
238 pipeline or facility as a high-priority subsurface installation
239 does not constitute a basis for recovery against the member
240 operator.
241 (a) If When an excavator proposes to excavate or demolish
242 within 15 feet of the horizontal route of an underground
243 pipeline or facility that has been identified as a high-priority
244 subsurface installation by the operator of the facility, the
245 operator shall, in addition to identifying the horizontal route
246 of its facility as set forth in s. 556.105(5)(a) and (b), and
247 within the time period set forth in s. 556.105(9)(a) for a
248 positive response, notify the excavator that the facility is a
249 high-priority subsurface installation.
250 (b) If the member operator provides such timely notice of
251 the existence of a high-priority subsurface installation, an
252 excavator must shall notify the member operator of the planned
253 excavation start date and time and provide the operator current
254 and accurate contact information before beginning excavation. If
255 the member operator does not provide timely notice, the
256 excavator may proceed, after waiting the prescribed time period
257 set forth in s. 556.105(6)(a) s. 556.105(9)(a), to excavate
258 without notifying the member operator of the excavation start
259 date and time.
260 (c) The exemptions stated in s. 556.108 apply to the
261 notification requirements in this subsection.
262 (3)(a) An alleged commission of an infraction listed in s.
263 556.107(1) which is reasonably believed by an operator or an
264 excavator to be a proximate cause of results in an incident must
265 be reported to the system by a member operator or an excavator
266 within 24 hours after learning of the alleged occurrence of an
267 incident.
268 (a)(b) Upon receipt of an allegation that an incident has
269 occurred, the system shall transmit an incident report to the
270 division and contract with the division to so that the division
271 may conduct a hearing to determine whether an incident has
272 occurred, and, if so, whether a violation of s. 556.107(1)(a)
273 was a proximate cause of the incident. The contract for services
274 to be performed by the division must include provisions for the
275 system to reimburse the division for any costs incurred by the
276 division for court reporters, transcript preparation, travel,
277 facility rental, and other customary hearing costs, in the
278 manner set forth in s. 120.65(9).
279 (b)(c) The division has jurisdiction in a proceeding under
280 this section to determine the facts and law concerning an
281 alleged incident. The division may impose a fine against a
282 violator in an amount not to exceed $50,000 if the person
283 violated a provision of s. 556.107(1)(a) and that violation was
284 a proximate cause of the incident. However, if a state agency or
285 political subdivision caused the incident, the state agency or
286 political subdivision may not be fined more than in an amount in
287 excess of $10,000.
288 (c)(d) A fine imposed by the division is in addition to any
289 amount payable as a result of a citation relating to the
290 incident under s. 556.107(1)(a).
291 (d)(e) A fine against an excavator or a member operator
292 imposed under this subsection shall be paid to the system, which
293 shall use the collected fines to satisfy the costs incurred by
294 the system for any proceedings under this section. To the extent
295 there are any funds remaining, The system may use any remaining
296 the funds exclusively for damage-prevention education.
297 (e) At any time after the system has transmitted an
298 incident report to the division, the person alleged to have
299 caused the occurrence of an incident may offer to settle the
300 matter by payment of a fine.
301 (f) The division may approve a settlement in lieu of
302 conducting a full hearing concerning an alleged incident, if the
303 settlement is within the parameters established under paragraph
304 (b).
305 (g) Any fine resulting from a settlement approved under
306 paragraph (f) shall be used as directed in paragraph (d).
307 (f) This section does not change the basis for civil
308 liability. The findings and results of a hearing under this
309 section may not be used as evidence of liability in any civil
310 action.
311 (4)(a) The division shall issue and serve on all original
312 parties an initial order that assigns the case to a specific
313 administrative law judge and requests information regarding
314 scheduling the final hearing within 5 business days after the
315 division receives a petition or request for hearing. The
316 original parties in the proceeding include all excavators and
317 member operators identified by the system as being involved in
318 the alleged incident. The final hearing must be conducted within
319 60 days after the date the petition or the request for a hearing
320 is filed with the division.
321 (a)(b) Unless the parties otherwise agree, venue for the
322 hearing shall be in the county in which the incident occurred
323 the underground facility is located.
324 (b)(c) An intervenor in the proceeding must file a petition
325 to intervene within no later than 15 days before the final
326 hearing. A person who has a substantial interest in the
327 proceeding may intervene.
328 (6) This section does not change the basis for civil
329 liability that may result from damage to a high-priority
330 subsurface installation. The findings and results of a hearing
331 under this section may not be used as evidence of liability in
332 any civil action.
333 Section 8. Paragraph (c) of subsection (3) of section
334 337.401, Florida Statutes, is amended to read:
335 337.401 Use of right-of-way for utilities subject to
336 regulation; permit; fees.—
337 (3)
338 (c)1. It is the intention of the state to treat all
339 providers of communications services that use or occupy
340 municipal or charter county roads or rights-of-way for the
341 provision of communications services in a nondiscriminatory and
342 competitively neutral manner with respect to the payment of
343 permit fees. Certain providers of communications services have
344 been granted by general law the authority to offset permit fees
345 against franchise or other fees while other providers of
346 communications services have not been granted this authority. In
347 order to treat all providers of communications services in a
348 nondiscriminatory and competitively neutral manner with respect
349 to the payment of permit fees, each municipality and charter
350 county shall make an election under either sub-subparagraph a.
351 or sub-subparagraph b. and must inform the Department of Revenue
352 of the election by certified mail by July 16, 2001. Such
353 election shall take effect October 1, 2001.
354 a.(I) The municipality or charter county may require and
355 collect permit fees from any providers of communications
356 services that use or occupy municipal or county roads or rights
357 of-way. All such fees permitted under this sub-subparagraph must
358 be reasonable and commensurate with the direct and actual cost
359 of the regulatory activity, including issuing and processing
360 permits, plan reviews, physical inspection, and direct
361 administrative costs; must be demonstrable; and must be
362 equitable among users of the roads or rights-of-way. The A fee
363 permitted under this sub-subparagraph may not: be offset against
364 the tax imposed under chapter 202; include the costs of roads or
365 rights-of-way acquisition or roads or rights-of-way rental;
366 include any general administrative, management, or maintenance
367 costs of the roads or rights-of-way; or be based on a percentage
368 of the value or costs associated with the work to be performed
369 on the roads or rights-of-way. In an action to recover amounts
370 due for a fee not permitted under this sub-subparagraph, the
371 prevailing party may recover court costs and attorney attorney’s
372 fees at trial and on appeal. In addition to the limitations set
373 forth in this section, a fee levied by a municipality or charter
374 county under this sub-subparagraph may not exceed $100. However,
375 permit fees may not be imposed with respect to permits that may
376 be required for service drop lines not required to be noticed
377 under s. 556.108(4)(a)2. s. 556.108(5)(a)2. or for any activity
378 that does not require the physical disturbance of the roads or
379 rights-of-way or does not impair access to or full use of the
380 roads or rights-of-way.
381 (II) To ensure competitive neutrality among providers of
382 communications services, for any municipality or charter county
383 that elects to exercise its authority to require and collect
384 permit fees under this sub-subparagraph, the rate of the local
385 communications services tax imposed by such jurisdiction, as
386 computed under s. 202.20, shall automatically be reduced by a
387 rate of 0.12 percent.
388 b. Alternatively, the municipality or charter county may
389 elect not to require and collect permit fees from any provider
390 of communications services that uses or occupies municipal or
391 charter county roads or rights-of-way for the provision of
392 communications services; however, each municipality or charter
393 county that elects to operate under this sub-subparagraph
394 retains all authority to establish rules and regulations for
395 providers of communications services to use or occupy roads or
396 rights-of-way as provided in this section. If a municipality or
397 charter county elects to operate under this sub-subparagraph,
398 the total rate for the local communications services tax as
399 computed under s. 202.20 for that municipality or charter county
400 may be increased by ordinance or resolution by an amount not to
401 exceed a rate of 0.12 percent. If a municipality or charter
402 county elects to increase its rate effective October 1, 2001,
403 the municipality or charter county shall inform the department
404 of such increased rate by certified mail postmarked on or before
405 July 16, 2001.
406 c. A municipality or charter county that does not make an
407 election as provided for in this subparagraph shall be presumed
408 to have elected to operate under the provisions of sub
409 subparagraph b.
410 2. Each noncharter county shall make an election under
411 either sub-subparagraph a. or sub-subparagraph b. and shall
412 inform the Department of Revenue of the election by certified
413 mail by July 16, 2001. Such election shall take effect October
414 1, 2001.
415 a. The noncharter county may elect to require and collect
416 permit fees from any providers of communications services that
417 use or occupy noncharter county roads or rights-of-way. All fees
418 permitted under this sub-subparagraph must be reasonable and
419 commensurate with the direct and actual cost of the regulatory
420 activity, including issuing and processing permits, plan
421 reviews, physical inspection, and direct administrative costs;
422 must be demonstrable; and must be equitable among users of the
423 roads or rights-of-way. A fee permitted under this sub
424 subparagraph may not: be offset against the tax imposed under
425 chapter 202; include the costs of roads or rights-of-way
426 acquisition or roads or rights-of-way rental; include any
427 general administrative, management, or maintenance costs of the
428 roads or rights-of-way; or be based on a percentage of the value
429 or costs associated with the work to be performed on the roads
430 or rights-of-way. In an action to recover amounts due for a fee
431 not permitted under this sub-subparagraph, the prevailing party
432 may recover court costs and attorney attorney’s fees at trial
433 and on appeal. In addition to the limitations set forth in this
434 section, a fee levied by a noncharter county under this sub
435 subparagraph may not exceed $100. However, permit fees may not
436 be imposed with respect to permits that may be required for
437 service drop lines not required to be noticed under s.
438 556.108(4)(a)2. s. 556.108(5)(a)2. or for any activity that does
439 not require the physical disturbance of the roads or rights-of
440 way or does not impair access to or full use of the roads or
441 rights-of-way.
442 b. Alternatively, the noncharter county may elect not to
443 require and collect permit fees from any provider of
444 communications services that uses or occupies noncharter county
445 roads or rights-of-way for the provision of communications
446 services; however, each noncharter county that elects to operate
447 under this sub-subparagraph shall retain all authority to
448 establish rules and regulations for providers of communications
449 services to use or occupy roads or rights-of-way as provided in
450 this section. If a noncharter county elects to operate under
451 this sub-subparagraph, the total rate for the local
452 communications services tax as computed under s. 202.20 for that
453 noncharter county may be increased by ordinance or resolution by
454 an amount not to exceed a rate of 0.24 percent, to replace the
455 revenue the noncharter county would otherwise have received from
456 permit fees for providers of communications services. If a
457 noncharter county elects to increase its rate effective October
458 1, 2001, the noncharter county shall inform the department of
459 such increased rate by certified mail postmarked on or before
460 July 16, 2001.
461 c. A noncharter county that does not make an election as
462 provided for in this subparagraph shall be presumed to have
463 elected to operate under the provisions of sub-subparagraph b.
464 3. Except as provided in this paragraph, municipalities and
465 counties retain all existing authority to require and collect
466 permit fees from users or occupants of municipal or county roads
467 or rights-of-way and to set appropriate permit fee amounts.
468 Section 9. This act shall take effect July 1, 2014.