STATE OF MAINE
PUBLIC UTILITIES COMMISSION Docket No. 2011-335
October 5, 2011
MAINE PUBLIC UTILITIES COMMISSION NOTICE OF RULEMAKING
Amendments to Underground Facility Damage
Prevention Requirements (Chapter 895)
WELCH, Chairman; VAFIADES and LITTELL, Commissioners
I. SUMMARY
Through this Notice of Rulemaking, we initiate a rulemaking proceeding to consider proposed amendments to our Underground Facility Damage Prevention Requirements rules (Chapter 895). The purpose of this proceeding is to make proposed changes based on the results of a stakeholder process conducted at the Legislature’s instruction pursuant to P.L. 2011, ch. 72, An Act to Clarify Dig Safe Standards.[1]
II. BACKGROUND
On May 9, 2011, P.L. 2011, ch. 72 became effective. The law made amendments to 23 M.R.S.A. §3360-A and established the Dig Safe Work Group (Work Group). The Work Group was comprised of 22 persons appointed by the Public Advocate, to be selected from specific entities affected by the Section 3360-A and Chapter 895. The Work Group, chaired by the Public Advocate, was charged with examining ways to clarify and simplify Section 3360-A and Chapter 895 to facilitate compliance and to eliminate regulatory uncertainty with a specific focus on:
1. Pre-excavation marking standards for excavators;
2. Marking standards for owners and operators of underground facilities;
3. Enforcement procedures and standards and the appropriate use of penalties; and
4. Clarification of incident reporting and ensuring that incident investigations involve appropriate fact-finding and do not assume or require inappropriate admission of fault.
The law also requires the Commission and the Public Advocate to submit a report to the Joint Standing Committee on Energy, Utilities and Technology that includes all findings and recommendations supported by at least 2/3 of the appointed members of the work group. Additionally, the Commission is directed to submit provisionally adopted rules necessary to carry out the recommendations of the Work Group to the Second Regular Session of the 125th Legislature.
The Work Group was convened by the Public Advocate on July 12, 2011 and held additional meetings on July 19, 2011, August 2, 2011, and September 15, 2011. On August 30, 2011, the Public Advocate sent a letter to the Commission conveying the recommendations of the Work Group. The amendments described below reflect the recommendations of the Work Group as determined by 2/3 majority vote of Work Group members during these sessions.
III. PROPOSED RULE AMENDMENTS
A. Pre-marking Locations of Intended Excavation [Section 4(A)].
Prior to notifying the damage prevention system of the location of an intended excavation, Section 4(A) requires an excavator to mark the parameters of the intended excavation site with white paint or a single stake and an indication of the radius around the stake where the excavation is to occur. During winter months it has commonly been the practice for excavators to use pink or black paint to pre-mark intended excavation sites so the marks will be easily visible on snow or ice. The proposed amendment formalizes this practice by allowing the use of black or pink paint during snow or ice conditions.
B. Additional Notifications Prior to Commencing Excavation [Section 4(B)(3)].
Private property owners, specifically the owners of residential property, are often the operators of underground facilities, such as the water service lines and sewer laterals connected to their homes. As such, they are considered non-member operators under Chapter 895 and excavators are required to provide homeowners with the same notice given to any other non-member operator. Additionally, excavators must wait 3 days after providing such notice before commencing excavation. Unlike other non-member operators, however, homeowners are often unaware of the requirements of Chapter 895 and the location of their underground facilities. As a result, these facilities are rarely marked by homeowners and are often damaged during excavation. Excavators in the Work Group report that damage of this type is generally repaired by excavators as soon as it is discovered.
The proposed amendment attempts to formalize this general practice while recognizing that notice to private landowners is often ineffective and of little value. The proposed amendment requires excavators to provide notice to private landowners of intended excavation but allows the excavator to commence excavation without waiting for 72 hours to allow the private landowner to mark out facilities. Additionally, the proposed amendment requires the excavator to be responsible for all damages to underground facilities that occur as a result of the excavation.
C. Indexing Facilities by Non-member Operators [Section 6(A)(2)].
Facility operators who are not mandatory or voluntary members of the Dig Safe system, such as many municipalities, water and sewer districts, must still be notified of prospective excavations by excavators. To facilitate this process, the Commission maintains a database of non-member operators by municipality. An excavator can then locate a list of all non-member operators within a municipality and provide notice of its intended excavation. The proposed rule allows non-member operators to index their facilities by street rather than by town, thereby decreasing the number of notifications made by excavators and received by non-member operators.
D. Tolerance Zones for Marking Facilities [Section 6(B)(4)].
When marking facilities present on an intended excavation site, facility operators are required to notify the excavator of the location of all underground facilities by marking a finite area designated as the “tolerance zone” on each side of the underground facility. The currently adopted Chapter 895 allows for an 18 inch tolerance zone for members of the damage prevention system and a 36 inch tolerance zone for non-members. The proposed amendment changes the tolerance zone for non-member operators to 18 inches, thus making the requirement consistent for all facility operators.
E. Enforcement Action Procedures [Section 7(B)].
The Work Group approved two general nomenclature changes in Section 7(B). First, the term “Notice of Probable Violation” (NOPV) has been replaced with “Notice of Enforcement Investigation” (NOEI) and second, references to “probable violator” have been replaced with “potential violator.”
1. Preliminary Incident Investigations [Section 7(B)(1)(a)].
The proposed amendment requires the Commission’s staff assigned to investigate potential violations to determine the number of excavations and markings undertaken by the potential violator within the previous 12 months and determine how many were undertaken without a reported violation of Section 3360-A or Chapter 895. The Commission’s access to the Dig Safe System records limits the collection of excavator history to the previous six months. Accordingly, the proposed amendment would generate the need for self-reporting of excavations and markings by excavators and operators.
2. Content of Notice of Enforcement Investigation [Section 7(B)(1)(c)].
The proposed amendment adds a substantial amount of information to each NOEI issued by the Commission. Specifically, each NOEI will now include; 1) the specific subsection of 23 M.R.S.A. §3360-A(6-C) that may have been violated; 2) whether and to what extent there was damage to property; 3) the extent of any injury to a person or persons; 4) the number of violations by the respondent in the past 12 months; 5) the number of excavations and markings by the respondent in the past 12 months that did not result in a violation; 6) whether the respondent has been required to attend mandatory training sessions within the past 12 months for a violation of the same section of the law or rule that is the subject of the NOEI; 7) where applicable, an explanation of the legal basis for determining the respondent acted in a negligent or reckless manner; 8) whether Commission staff is recommending mandatory training or an administrative penalty; and 9) the amount of any administrative penalty recommended to resolve the matter. Finally, under the proposed amendment, the NOEI will contain information on how the respondent can request an adjudicatory hearing.
Subsections 7(B)(1)(c)(iv) and (v) of the proposed rule require the Commission to determine whether a violation of Section 3360-A or Chapter 895 occurred during excavations where the Commission neither investigated an incident nor engaged in deliberations. Accordingly, the rule requires a logically impossible finding. We particularly seek comment on how the Commission would effectuate the requirement of these sections.
3. Adjudicatory Hearings [Section 7(B)(4)].
Under the currently adopted rule, a respondent who seeks to dispute the issuance of an NOEI must request an informal conference. Following the conference, the Commission’s staff issues a recommended decision. If the recommended decision is adverse to the respondent, the respondent may request an adjudicatory hearing at any point within 30 days of receiving the recommended decision. The proposed amendment approved by the Work Group changes this requirement by removing the option of requesting a hearing after an informal conference and instead requiring a respondent who wishes to dispute an NOEI to request an adjudicatory hearing within 30 days of receiving the NOEI. The result of this change is to require respondents who wish to preserve the option of seeking an adjudicatory hearing before the Commission to request such a hearing within 30 days of receiving an NOEI even when the respondent seeks to contest the NOEI through informal review. Additionally, Section 7(B)(2) requires Commission staff to conduct an informal review whenever an NOEI is contested unless the respondent requests the informal conference be waived. This would require Commission staff to conduct an informal review even when the respondent contests the NOEI by requesting to proceed directly to an adjudicatory hearing. Accordingly, a respondent who wishes to proceed directly to an adjudicatory hearing would need to request both a hearing and the waiver of the informal conference. We particularly seek comment on ways to clarify or simplify the proposed process.
4. Consent Agreements [Section 7(B)(6)].
The proposed amendment removes the requirement of the current adopted rule that a respondent seeking to resolve an alleged violation by consent agreement must sign a consent agreement indicating they agree to the terms of the consent agreement. Instead, the proposed amendment allows a respondent to only indicate that it does not contest the imposition of any penalties set forth in the NOEI. Additionally, the proposed amendment clarifies that a respondent who signs a consent agreement is not admitting to the alleged violation or indicating agreement with any legal conclusion set forth in the NOEI. However, a NOEI resolved by consent agreement will be treated as a finding of violation for determination of future enforcement actions in accordance with Chapter 895.
F. Imposition of Administrative Penalties [Section 8(D)].
The proposed amendment to Section 8(D) ties the penalty levels to “violations subject to a penalty pursuant to Section 7(B)(f).” Neither the currently adopted rule nor the proposed amendments approved by the Work Group contain a Section 7(B)(f) and it is likely a reference to additional changes that were proposed during the Work Group but not included in the final version adopted by 2/3 majority vote. The Commission particularly seeks comment on whether this proposed amendment should be removed from consideration.
V. FISCAL IMPACT
In accordance with 5 M.R.S.A. § 8057-A(1), the fiscal impact of the proposed rule is expected to be minimal. The Commission invites all interested parties to comment on the fiscal impact and all other implications of the proposed rule.
Pursuant to 5 M.R.S.A. § 8052(5-A), the Commission also invites comments on the impact of the proposed rule on small businesses, which are defined as businesses that have 20 or fewer employees, to aid the Commission in preparing any economic impact statement on the proposed rule. Specifically, the Commission seeks comments on:
1. the types and estimated number of small businesses subject to the proposed rule;
2. the projected reporting, record-keeping and other administrative costs required for compliance with the proposed rule, including the type of professional skills necessary for preparation of the report or record;
3. the probable impact on affected small businesses; and
4. a description of any less intrusive or less costly, reasonable alternative methods of achieving the purposes of the proposed rule.
VI. RULEMAKING PROCEDURES
This rulemaking will be conducted according to the procedures set forth in 5 M.R.S.A. §§ 8051-8058. A public hearing on this matter will be held on November 10, 2011 at 1:30 p.m. at the Public Utilities Commission. Written comments on the proposed Rule may be filed with the Administrative Director until November 18, 2011. However, the Commission requests that comments be filed by November 4, 2011 to allow for follow-up inquiries during the hearing; supplemental comments may be filed until November 18, 2011. Written comments should refer to the docket number of this proceeding, Docket No. 2011-335 and be sent to the Administrative Director, Public Utilities Commission, 18 State House Station, Augusta, Maine 04333-0018.
Accordingly, we
O R D E R
1. That the Administrative Director shall notify the following of this rulemaking proceeding:
a. All persons who filed comments in theAmendments to Underground Facility Damage Prevention Requirements (Chapter 895) (Docket No. 2010-296);
b. All persons who have filed with the Commission within the past year a written request for notice of rulemakings; and
2. That the Administrative Director shall send copies of this Notice of Rulemaking and attached proposed rule to:
a. The Secretary of State for publication in accordance with 5 M.R.S.A. § 8053(5); and
b. Executive Director of the Legislative Council, 115 State House Station, Augusta, Maine 04333-0115 (20 copies).
Dated at Augusta, Maine, this 5th day of October, 2011.
BY ORDER OF THE COMMISSION
[1]On December 15, 2010, the Commission provisionally adopted amendments to Chapter 895. Because these rules were denominated as “major substantive” by 23 M.R.S.A. § 3360-A(13), they required legislative approval under 5 M.R.S.A. §§ 8071-8072. In compliance with these provisions, the Commission submitted the provisionally adopted rules to the Legislature for approval. On May 9, 2011, Resolves 2011, chapter 31 became effective, authorizing the final adoption of the rule but removing all of the provisionally adopted changes and requiring certain amendments. See Amendments to Underground Facility Damage Prevention Requirements (Chapter 895), Order Adopting Final Rule, Docket No. 2010-296. (June 15, 2011).
