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| To amend sections 3781.25 and 4905.26 and to enact | 1 |
| sections 3781.34, 3781.341, 3781.342, 3781.343, | 2 |
| 3781.36, 3781.38, 4905.041, 4913.01, 4913.03, | 3 |
| 4913.05, 4913.07, 4913.09, 4913.13, 4913.15, | 4 |
| 4913.151, 4913.152, 4913.16, 4913.17, 4913.171, | 5 |
| 4913.19, 4913.20, 4913.21, 4913.22, 4913.23, | 6 |
| 4913.25, 4913.251, 4913.252, 4913.26, 4913.27, | 7 |
| 4913.29, 4913.30, 4913.31, 4913.43, 4913.45, | 8 |
| 4913.47, 4913.50, and 4913.52 of the Revised Code | 9 |
| regarding the enforcement of the law governing the | 10 |
| protection of underground utility facilities. | 11 |
| Section 1. That sections 3781.25 and 4905.26 be amended and | 12 |
| sections 3781.34, 3781.341, 3781.342, 3781.343, 3781.36, 3781.38, | 13 |
| 4905.041, 4913.01, 4913.03, 4913.05, 4913.07, 4913.09, 4913.13, | 14 |
| 4913.15, 4913.151, 4913.152, 4913.16, 4913.17, 4913.171, 4913.19, | 15 |
| 4913.20, 4913.21, 4913.22, 4913.23, 4913.25, 4913.251, 4913.252, | 16 |
| 4913.26, 4913.27, 4913.29, 4913.30, 4913.31, 4913.43, 4913.45, | 17 |
| 4913.47, 4913.50, and 4913.52 of the Revised Code be enacted to | 18 |
| read as follows: | 19 |
| Sec. 3781.25. As used in sections 3781.25 to | 20 |
| of the Revised Code: | 21 |
| (A) "Protection service" means a notification center, but not | 22 |
| an owner of an individual utility, that exists for the purpose of | 23 |
| receiving notice from persons that prepare plans and | 24 |
| specifications for or that engage in excavation work, that | 25 |
| distributes this information to its members and participants, and | 26 |
| that has registered by March 14, 1989, with the secretary of state | 27 |
| and the public utilities commission of Ohio under former division | 28 |
| (F) of section 153.64 of the Revised Code as it existed on that | 29 |
| date. | 30 |
| (B) "Underground utility facility" includes any item buried | 31 |
| or placed below ground or submerged under water for use in | 32 |
| connection with the storage or conveyance of water or sewage; | 33 |
| electronic, telephonic, or telegraphic communications; television | 34 |
| signals; electricity; crude oil; petroleum products; artificial or | 35 |
| liquefied petroleum; manufactured, mixed, or natural gas; | 36 |
| synthetic or liquefied natural gas; propane gas; coal; steam; hot | 37 |
| water; or other substances. "Underground utility facility" | 38 |
| includes all operational underground pipes, sewers, tubing, | 39 |
| conduits, cables, valves, lines, wires, worker access holes, and | 40 |
| attachments, owned by any person, firm, or company. "Underground | 41 |
| utility facility" does not include a private septic system in a | 42 |
| one-family or multi-family dwelling utilized only for that | 43 |
| dwelling and not connected to any other system. | 44 |
| (C) "Utility" means any owner or operator, or an agent of an | 45 |
| owner or operator, of an underground utility facility, including | 46 |
| any public authority, that owns or operates an underground utility | 47 |
| facility. "Utility" does not include the owners of the following | 48 |
| types of real property with respect to any underground utility | 49 |
| facility located on that property: | 50 |
| (1) The owner of a single-family or two-, three-, or | 51 |
| four-unit residential dwelling; | 52 |
| (2) The owner of an apartment complex; | 53 |
| (3) The owner of a commercial or industrial building or | 54 |
| complex of buildings, including but not limited to, factories and | 55 |
| shopping centers; | 56 |
| (4) The owner of a farm; | 57 |
| (5) The owner of an exempt domestic well as defined in | 58 |
| section 1509.01 of the Revised Code. | 59 |
| (D) "Approximate location" means the immediate area within | 60 |
| the perimeter of a proposed excavation site where the underground | 61 |
| utility facilities are located. | 62 |
| (E) "Tolerance zone" means the site of the underground | 63 |
| utility facility including the width of the underground utility | 64 |
| facility plus eighteen inches on each side of the facility. | 65 |
| (F) "Working days" excludes Saturdays, Sundays, and legal | 66 |
| holidays as defined in section 1.14 of the Revised Code and | 67 |
| "hours" excludes hours on Saturdays, Sundays, and legal holidays. | 68 |
| (G) "Designer" means an engineer, architect, landscape | 69 |
| architect, contractor, surveyor, or other person who develops | 70 |
| plans or designs for real property improvement or any other | 71 |
| activity that will involve excavation. | 72 |
| (H) "Developer" means the person for whom the excavation is | 73 |
| made and who will own or be the lessee of any improvement that is | 74 |
| the object of the excavation. | 75 |
| (I) "Excavation" means the use of hand tools, powered | 76 |
| equipment, or explosives to move earth, rock, or other materials | 77 |
| in order to penetrate or bore or drill into the earth, or to | 78 |
| demolish any structure whether or not it is intended that the | 79 |
| demolition will disturb the earth. "Excavation" includes such | 80 |
| agricultural operations as the installation of drain tile, but | 81 |
| excludes agricultural operations such as tilling that do not | 82 |
| penetrate the earth to a depth of more than twelve inches. | 83 |
| "Excavation" excludes any activity by a governmental entity which | 84 |
| does not penetrate the earth to a depth of more than twelve | 85 |
| inches. "Excavation" excludes coal mining and reclamation | 86 |
| operations regulated under Chapter 1513. of the Revised Code and | 87 |
| rules adopted under it. | 88 |
| (J) "Excavation site" means the area within which excavation | 89 |
| will be performed. | 90 |
| (K) "Excavator" means the person or persons responsible for | 91 |
| making the actual excavation. | 92 |
| (L) "Interstate gas pipeline" means an interstate gas | 93 |
| pipeline subject to the "Natural Gas Pipeline Safety Act of 1968," | 94 |
| 82 Stat. 720, 49 U.S.C. 1671, as amended. | 95 |
| (M) "Interstate hazardous liquids pipeline" means an | 96 |
| interstate hazardous liquids pipeline subject to the "Hazardous | 97 |
| Liquid Pipeline Safety Act of 1979," 93 Stat. 1003, 49 U.S.C. | 98 |
| 2002, as amended. | 99 |
| (N) "Special notification requirements" means requirements | 100 |
| for notice to an owner of an interstate hazardous liquids pipeline | 101 |
| or an interstate gas pipeline that must be made prior to | 102 |
| commencing excavation and pursuant to the owner's public safety | 103 |
| program adopted under federal law. | 104 |
| (O) "Commercial excavator" means any excavator, excluding a | 105 |
| utility as defined in this section, that satisfies both of the | 106 |
| following: | 107 |
| (1) For compensation, performs, directs, supervises, or is | 108 |
| responsible for the excavation, construction, improvement, | 109 |
| renovation, repair, or maintenance on a construction project and | 110 |
| holds out or represents oneself as qualified or permitted to act | 111 |
| as such; | 112 |
| (2) Employs tradespersons who actually perform excavation, | 113 |
| construction, improvement, renovation, repair, or maintenance on a | 114 |
| construction project. | 115 |
| (P) "Person" has the same meaning as in section 1.59 of the | 116 |
| Revised Code and also includes a public authority. | 117 |
| (Q) "Positive response system" means an automated system | 118 |
| facilitated by a protection service allowing a utility to | 119 |
| communicate to an excavator the presence or absence of any | 120 |
| conflict between the existing underground utility facilities and | 121 |
| the proposed excavation site. | 122 |
| (R) "One-call notification system" means the software or | 123 |
| communications system used by a protection system to notify its | 124 |
| membership of proposed excavation sites. | 125 |
| (S) "Project" means any undertaking by a private party of an | 126 |
| improvement requiring excavation. | 127 |
| (T) "Public authority" has the same meaning as in section | 128 |
| 153.64 of the Revised Code. | 129 |
| (U) "Improvement" means any construction, reconstruction, | 130 |
| improvement, enlargement, alteration, or repair of a building, | 131 |
| highway, drainage system, water system, road, street, alley, | 132 |
| sewer, ditch, sewage disposal plant, water works, and all other | 133 |
| structures or works of any nature. | 134 |
| (V) "Emergency" means an unexpected occurrence causing a | 135 |
| disruption or damage to an underground utility facility that | 136 |
| requires immediate repair or a situation that creates a clear and | 137 |
| imminent danger that demands immediate action to prevent or | 138 |
| mitigate loss of or damage to life, health, property, or essential | 139 |
| public services. | 140 |
| (W) "Nondestructive manner" means using low-impact, low-risk | 141 |
| technologies such as hand tools, or hydro or air vacuum excavation | 142 |
| equipment. | 143 |
| (X) "Cable service provider" has the same meaning as in | 144 |
| section 1332.01 of the Revised Code. | 145 |
| (Y) "Electric cooperative" and "electric utility" have the | 146 |
| same meanings as in section 4928.01 of the Revised Code. | 147 |
| Sec. 3781.34. (A) There is hereby created the underground | 148 |
| technical committee. | 149 |
| (B) The committee shall consist of four members from the | 150 |
| stakeholder group of the commercial excavator industry, in | 151 |
| accordance with division (C) of this section, and one member from | 152 |
| each of the following stakeholder groups: | 153 |
| (1) The natural gas transmission pipeline industry, appointed | 154 |
| by the president of the senate; | 155 |
| (2) The natural gas distribution industry, appointed by the | 156 |
| speaker of the house of representatives; | 157 |
| (3) Electric utilities, appointed by the governor; | 158 |
| (4) Electric cooperatives, appointed by the speaker of the | 159 |
| house of representatives; | 160 |
| (5) A statewide organization representing independent oil and | 161 |
| gas producers, appointed by the president of the senate; | 162 |
| (6) The telephone industry, appointed by the governor; | 163 |
| (7) Cable service providers, appointed by the president of | 164 |
| the senate; | 165 |
| (8) Locators of underground utility facilities, appointed by | 166 |
| the speaker of the house of representatives; | 167 |
| (9) Municipal corporations, appointed by the governor; | 168 |
| (10) The department of transportation, appointed by the | 169 |
| governor; | 170 |
| (11) The general public, appointed by the governor; | 171 |
| (12) The hazardous liquids pipeline industry, appointed by | 172 |
| the governor; | 173 |
| (13) Designers, developers, or surveyors, appointed by the | 174 |
| governor. | 175 |
| (C) The president of the senate, the speaker of the house of | 176 |
| representatives, the minority leader of the senate, and the | 177 |
| minority leader of the house of representatives shall each appoint | 178 |
| one of the members from the stakeholder group of the commercial | 179 |
| excavator industry. | 180 |
| (D) The terms of office for members initially appointed shall | 181 |
| be staggered at two, three, and four years and determined by lot, | 182 |
| except that the stakeholder group of the commercial excavator | 183 |
| industry shall have only one member with an initial two-year term. | 184 |
| The term of office for each member subsequently appointed shall be | 185 |
| four years. | 186 |
| (E) Each member may be reappointed for an unlimited number of | 187 |
| times. | 188 |
| (F) If a vacancy occurs during a member's term of office, a | 189 |
| new member shall be appointed in the same manner as the original | 190 |
| appointment. | 191 |
| Sec. 3781.341. A member of the underground technical | 192 |
| committee who has a conflict of interest in a particular review | 193 |
| under section 4913.15 of the Revised Code shall declare the | 194 |
| conflict to the committee and recuse self from committee | 195 |
| discussions and voting regarding that review. | 196 |
| Sec. 3781.342. (A) The underground technical committee may | 197 |
| conduct meetings in person, by teleconference, or by video | 198 |
| conference. | 199 |
| (B) The committee shall establish a primary meeting location | 200 |
| that is open and accessible to the public. | 201 |
| (C) Before convening a meeting by teleconference or video | 202 |
| conference, the committee shall send, via electronic mail, | 203 |
| facsimile, or United States postal service, a copy of | 204 |
| meeting-related documents to each committee member. | 205 |
| (D) The minutes of each meeting shall specify who was | 206 |
| attending by teleconference, who was attending by video | 207 |
| conference, and who was physically present. Any vote taken in a | 208 |
| meeting held by teleconference that is not unanimous shall be | 209 |
| recorded as a roll call vote. | 210 |
| Sec. 3781.343. A member of the underground technical | 211 |
| committee is not subject to the disclosure requirements of | 212 |
| sections 102.02 and 102.021 of the Revised Code by virtue of | 213 |
| membership on the committee. | 214 |
| Sec. 3781.36. (A) The underground technical committee shall | 215 |
| do the following: | 216 |
| (1) Coordinate with the public utilities commission in | 217 |
| carrying out its duties under Chapter 4913. of the Revised Code; | 218 |
| (2) Provide subject matter expertise when requested during | 219 |
| inquiries conducted under section 4913.09 of the Revised Code; | 220 |
| (3) Review reports in accordance with section 4913.15 of the | 221 |
| Revised Code; | 222 |
| (4) Make recommendations under sections 4913.15 and 4913.16 | 223 |
| of the Revised Code; | 224 |
| (5) Perform any additional duties as may be required under | 225 |
| this chapter. | 226 |
| (B) The committee shall meet as necessary to carry out its | 227 |
| duties and meet the time-period requirements of division (B) of | 228 |
| section 4913.15 of the Revised Code, but not less than once every | 229 |
| three months. A majority of committee members constitutes a | 230 |
| quorum. | 231 |
| Sec. 3781.38. Every member of the underground technical | 232 |
| committee shall be immune, individually and jointly, from civil | 233 |
| liability for any act or omission done or made in performance of | 234 |
| the member's duties while serving as a member of the committee, | 235 |
| but only in the absence of willful misconduct. | 236 |
| Sec. 4905.041. (A) The public utilities commission has | 237 |
| exclusive jurisdiction to enforce, in accordance with Chapter | 238 |
| 4913. of the Revised Code, section 153.64, divisions (A) and (B) | 239 |
| of section 3781.26, sections 3781.27 and 3781.28 to 3781.32, and | 240 |
| Chapter 4913. of the Revised Code. | 241 |
| (B) The commission's enforcement authority described in | 242 |
| division (A) of this section is limited to actions specifically | 243 |
| authorized by Chapter 4913. of the Revised Code. | 244 |
| (C) Nothing in this section or Chapter 4913. of the Revised | 245 |
| Code gives the commission or the underground technical committee, | 246 |
| created under section 3781.34 of the Revised Code, the authority | 247 |
| to determine the civil liability of any person for any compliance | 248 |
| failure as that term is defined in section 4913.01 of the Revised | 249 |
| Code. | 250 |
| Sec. 4905.26. Upon complaint in writing against any public | 251 |
| utility by any person, firm, or corporation, or upon the | 252 |
| initiative or complaint of the public utilities commission, that | 253 |
| any rate, fare, charge, toll, rental, schedule, classification, or | 254 |
| service, or any joint rate, fare, charge, toll, rental, schedule, | 255 |
| classification, or service rendered, charged, demanded, exacted, | 256 |
| or proposed to be rendered, charged, demanded, or exacted, is in | 257 |
| any respect unjust, unreasonable, unjustly discriminatory, | 258 |
| unjustly preferential, or in violation of law, or that any | 259 |
| regulation, measurement, or practice affecting or relating to any | 260 |
| service furnished by the public utility, or in connection with | 261 |
| such service, is, or will be, in any respect unreasonable, unjust, | 262 |
| insufficient, unjustly discriminatory, or unjustly preferential, | 263 |
| or that any service is, or will be, inadequate or cannot be | 264 |
| obtained, and, upon complaint of a public utility as to any matter | 265 |
| affecting its own product or service, if it appears that | 266 |
| reasonable grounds for complaint are stated, the commission shall | 267 |
| fix a time for hearing and shall notify complainants and the | 268 |
| public utility thereof. The notice shall be served not less than | 269 |
| fifteen days before hearing and shall state the matters complained | 270 |
| of. The commission may adjourn such hearing from time to time. | 271 |
| The parties to the complaint shall be entitled to be heard, | 272 |
| represented by counsel, and to have process to enforce the | 273 |
| attendance of witnesses. | 274 |
| This section does not apply to matters governed by Chapter | 275 |
| 4913. of the Revised Code. | 276 |
| Sec. 4913.01. As used in this chapter: | 277 |
| (A) "Aggrieved person" means a person with duties and | 278 |
| obligations under sections 153.64, 3781.27, and 3781.28 to 3781.32 | 279 |
| of the Revised Code and divisions (A) and (B) of section 3781.26 | 280 |
| of the Revised Code and who is directly involved with or impacted | 281 |
| by the alleged compliance failure, as identified in the request | 282 |
| for inquiry, of another person with duties and obligations under | 283 |
| sections 153.64, 3781.27, and 3781.28 to 3781.32 of the Revised | 284 |
| Code and divisions (A) and (B) of section 3781.26 of the Revised | 285 |
| Code. | 286 |
| (B) "Compliance failure" means a failure to comply with any | 287 |
| provision of sections 153.64, 3781.27, and 3781.28 to 3781.32 of | 288 |
| the Revised Code and divisions (A) and (B) of section 3781.26 of | 289 |
| the Revised Code. | 290 |
| (C) "Designer," "developer," "excavation," "excavator," | 291 |
| "one-call notification system," "person," "protection service," | 292 |
| "underground utility facility", and "utility" have the same | 293 |
| meanings as in section 3781.25 of the Revised Code. | 294 |
| Sec. 4913.03. (A) Each utility, excavator, developer, and | 295 |
| designer who participates in the one-call notification system | 296 |
| shall register with the public utilities commission and pay a | 297 |
| safety registration not to exceed fifty dollars annually, which | 298 |
| the commission may lower if the commission determines lowering the | 299 |
| registration to be necessary. The commission shall administer and | 300 |
| oversee the registration process. Failure to register shall result | 301 |
| in a fine of not more than two thousand five hundred dollars. | 302 |
| (B) The commission shall deposit all safety registrations and | 303 |
| fines collected under this section in the underground facilities | 304 |
| protection administrative fund created under section 4913.30 of | 305 |
| the Revised Code. | 306 |
| Sec. 4913.05. (A) Beginning January 1, 2016, an aggrieved | 307 |
| person may request an inquiry with the staff of the public | 308 |
| utilities commission seeking the imposition, in accordance with | 309 |
| this chapter, of a fine or penalty on the person responsible for | 310 |
| the alleged compliance failure described in division (A) of | 311 |
| section 4913.01 of the Revised Code. The person shall make the | 312 |
| request not later than ninety days after discovering the alleged | 313 |
| compliance failure. The request shall not, by itself, cause the | 314 |
| creation of a formal proceeding at the commission. | 315 |
| (B) A request made under this section shall state, at a | 316 |
| minimum and with particularity, the name of the person responsible | 317 |
| for the alleged compliance failure, the date of the compliance | 318 |
| failure, the nature of the compliance failure, the location of the | 319 |
| compliance failure, and any other information that the requestor | 320 |
| considers relevant. | 321 |
| (C) The staff shall, not later than ten business days after | 322 |
| receiving a request under this section, notify the person | 323 |
| responsible for the alleged compliance failure that the request | 324 |
| was made. | 325 |
| Sec. 4913.07. If a request for an inquiry is made under | 326 |
| section 4913.05 of the Revised Code, the person responsible for | 327 |
| the alleged compliance failure may, not later than thirty days | 328 |
| after being notified under that section, respond to the request, | 329 |
| providing any information that the person considers relevant to | 330 |
| the request. The response may include an admission of the | 331 |
| compliance failure. | 332 |
| Sec. 4913.09. (A) The staff of the public utilities | 333 |
| commission shall conduct an inquiry upon receiving a request made | 334 |
| under section 4913.05 of the Revised Code. The inquiry shall be | 335 |
| limited to whether there was a compliance failure. | 336 |
| (B) During an inquiry conducted under this section, the staff | 337 |
| shall examine relevant facts regarding the alleged compliance | 338 |
| failure and may request records verification, informal meetings, | 339 |
| teleconferences, photo documentation, and any other documentation | 340 |
| or information relevant to the inquiry. | 341 |
| Sec. 4913.13. The staff of the public utilities commission | 342 |
| shall make a report of each inquiry conducted under section | 343 |
| 4913.09 of the Revised Code available to the underground technical | 344 |
| committee, created under section 3781.34 of the Revised Code. The | 345 |
| report shall contain any admission made under section 4913.07 of | 346 |
| the Revised Code by the person who is the subject of the inquiry. | 347 |
| This report shall not contain a recommendation as to the | 348 |
| imposition of a fine or penalty or as to whether no enforcement | 349 |
| action should be taken. | 350 |
| Sec. 4913.15. (A) The underground technical committee shall | 351 |
| review every report of the staff of the public utilities | 352 |
| commission made available under section 4913.13 of the Revised | 353 |
| Code or submitted under section 4913.16 of the Revised Code. | 354 |
| (B) Not later than ninety days after the committee obtains | 355 |
| the staff's report under section 4913.13 of the Revised Code, the | 356 |
| committee shall do any of the following: | 357 |
| (1) Make a written recommendation to the commission as to the | 358 |
| imposition of a fine, a penalty, or a combination of fines and | 359 |
| penalties, in accordance with section 4913.151 of the Revised | 360 |
| Code; | 361 |
| (2) Determine that no enforcement action should be taken and | 362 |
| notify the commission in writing of the determination; | 363 |
| (3) Request a hearing under section 4913.19 of the Revised | 364 |
| Code. | 365 |
| (C) There shall be a majority vote of the full committee, | 366 |
| with at least one of the commercial-excavator stakeholders voting | 367 |
| with the majority, for the committee to do any of the following: | 368 |
| (1) Recommend a fine, penalty, or a combination of fines and | 369 |
| penalties under this section or section 4913.16 of the Revised | 370 |
| Code; | 371 |
| (2) Determine, under this section or section 4913.16 of the | 372 |
| Revised Code, that no enforcement action should be taken; | 373 |
| (3) Request a hearing under section 4913.19 of the Revised | 374 |
| Code. | 375 |
| If the committee fails to achieve the required majority for | 376 |
| any action described in division (C) of this section, it shall | 377 |
| notify the commission. | 378 |
| Sec. 4913.151. In determining a fine or penalty | 379 |
| recommendation as required under section 4913.15 or 4913.16 of the | 380 |
| Revised Code: | 381 |
| (A) If the compliance failure is the first for the person | 382 |
| responsible, the underground technical committee may recommend a | 383 |
| penalty of a training requirement, an education requirement, or | 384 |
| another nonmonetary penalty, or may recommend a fine not exceeding | 385 |
| two thousand five hundred dollars, or may recommend a combination | 386 |
| of this fine and these penalties. | 387 |
| (B) If the compliance failure is a subsequent compliance | 388 |
| failure for the person responsible, the committee may recommend a | 389 |
| penalty of a training requirement, an education requirement, or | 390 |
| another nonmonetary penalty, or may recommend a fine not exceeding | 391 |
| five thousand dollars, or may recommend a combination of this fine | 392 |
| and these penalties. | 393 |
| (C) Any penalty recommended under this section shall be | 394 |
| appropriately related to enforcement of the provisions enumerated | 395 |
| in division (A) of section 4905.041 of the Revised Code. | 396 |
| Sec. 4913.152. The underground technical committee may | 397 |
| communicate with persons who have knowledge or information | 398 |
| concerning the alleged compliance failure as part of the | 399 |
| committee's review under section 4913.15 of the Revised Code and | 400 |
| to assist the committee in making recommendations under that | 401 |
| section and section 4913.16 of the Revised Code. | 402 |
| Sec. 4913.16. (A)(1) If the underground technical committee | 403 |
| votes during the ninety-day time period as required under division | 404 |
| (B) of section 4913.15 of the Revised Code but fails to achieve | 405 |
| the required majority as described in division (C) of that | 406 |
| section, no enforcement action shall be taken. | 407 |
| (2) If the committee, during the ninety-day time period, | 408 |
| fails to vote on any action as required under division (B) of | 409 |
| section 4913.15 of the Revised Code, the staff of the public | 410 |
| utilities commission shall make a recommendation as to a fine or | 411 |
| penalty or no enforcement. The staff shall cause the initial | 412 |
| report made available under section 4913.13 of the Revised Code to | 413 |
| be amended to add the recommendation, and shall submit the amended | 414 |
| report to the committee. | 415 |
| (B) Not later than thirty days after the committee receives | 416 |
| an amended report under division (A)(2) of this section, the | 417 |
| committee shall do any of the following, subject to division (C) | 418 |
| of section 4913.15 of the Revised Code: | 419 |
| (1) Make a written recommendation to the commission as to the | 420 |
| imposition of a fine, penalty, or a combination of fines and | 421 |
| penalties in accordance with section 4913.151 of the Revised Code; | 422 |
| (2) Determine that no enforcement action should be taken and | 423 |
| notify the commission in writing of the determination; | 424 |
| (3) Request a hearing under section 4913.19 of the Revised | 425 |
| Code. | 426 |
| (C)(1) If the committee votes during the thirty-day time | 427 |
| period as required under division (B) of this section but fails to | 428 |
| achieve the required majority as described in division (C) of | 429 |
| section 4913.15 of the Revised Code, no enforcement action shall | 430 |
| be taken. | 431 |
| (2) If the committee fails to vote on any action as required | 432 |
| under division (B) of this section, the commission shall impose a | 433 |
| fine or penalty consistent with section 4913.151 of the Revised | 434 |
| Code or take no enforcement action. The commission shall inform | 435 |
| the committee of its decision. | 436 |
| Sec. 4913.17. (A) Based upon the number and type of | 437 |
| compliance failures committed by a person, the underground | 438 |
| technical committee may find, as part of the committee's review | 439 |
| under section 4913.15 of the Revised Code, that the person is a | 440 |
| persistent noncomplier. | 441 |
| (B) The committee shall report a finding made under division | 442 |
| (A) of this section to the staff of the public utilities | 443 |
| commission. | 444 |
| (C) There shall be a majority vote of the full committee, | 445 |
| with at least one of the commercial-excavator stakeholders voting | 446 |
| with the majority, for the committee to make a finding under | 447 |
| division (A) of this section. | 448 |
| Sec. 4913.171. If the underground technical committee reports | 449 |
| that a person responsible for a compliance failure has been found | 450 |
| to be a persistent noncomplier under section 4913.17 of the | 451 |
| Revised Code, the public utilities commission may impose a fine on | 452 |
| the person not exceeding ten thousand dollars. A penalty | 453 |
| recommended by the committee under section 4913.15 or 4913.16 of | 454 |
| the Revised Code may also be imposed by the commission. | 455 |
| Sec. 4913.19. In lieu of making a recommendation of a fine or | 456 |
| penalty or a no-enforcement determination, the underground | 457 |
| technical committee may request an administrative hearing with the | 458 |
| public utilities commission if the committee believes that any | 459 |
| person responsible for a compliance failure should be subject to a | 460 |
| fine or penalty exceeding those described in section 4913.151 of | 461 |
| the Revised Code. As a result of the hearing, the commission shall | 462 |
| impose a fine or penalty or take no enforcement action. | 463 |
| Sec. 4913.20. In determining a fine or penalty | 464 |
| recommendation or imposition or whether no enforcement action | 465 |
| should be taken under section 4913.15, 4913.16, 4913.171, 4913.19, | 466 |
| or 4913.25 of the Revised Code, the underground technical | 467 |
| committee, the public utilities commission, and the commission | 468 |
| staff, as applicable, shall consider the following factors, as | 469 |
| they apply: | 470 |
| (A) The person's demonstrated history of one-call, design, | 471 |
| and excavation practices, including the following: | 472 |
| (1) The number of locate requests received and responded to; | 473 |
| (2) The number of locates completed; | 474 |
| (3) The number of one calls placed; | 475 |
| (4) The number of excavations completed; | 476 |
| (5) The number of design or development projects. | 477 |
| (B) The nature, circumstances, and gravity of the compliance | 478 |
| failure, including the amount of damage involved in relation to | 479 |
| the compliance failure, and whether it resulted in death, serious | 480 |
| injury, dismemberment, or a significant threat to public safety; | 481 |
| (C) The organizational size of the responsible person; | 482 |
| (D) The prospective effect of a fine on the person's ability | 483 |
| to pay business obligations and otherwise conduct business; | 484 |
| (E) The history or number of compliance failures by the | 485 |
| person; | 486 |
| (F) The good faith effort on the person's part in attempting | 487 |
| to achieve compliance after the compliance failure was identified. | 488 |
| Sec. 4913.21. Except as provided in sections 4913.171 and | 489 |
| 4913.19 of the Revised Code, the public utilities commission shall | 490 |
| impose every recommendation made under section 4913.15 or 4913.16 | 491 |
| of the Revised Code by the underground technical committee. | 492 |
| Sec. 4913.22. A person subject to a fine imposed under | 493 |
| section 4913.171, 4913.19, or 4913.21 of the Revised Code or | 494 |
| division (C)(2) of section 4913.16 of the Revised Code shall pay | 495 |
| the fine not later than sixty days after the fine or penalty is | 496 |
| imposed. A person subject to a penalty imposed under any of those | 497 |
| sections or that division shall begin compliance with the penalty | 498 |
| not later than thirty days after the penalty is imposed. | 499 |
| Sec. 4913.23. The public utilities commission shall, by | 500 |
| letter, promptly notify the person that requested the inquiry and | 501 |
| the person responsible for the compliance failure of any fine or | 502 |
| penalty imposed under section 4913.171, 4913.19, or 4913.21 of the | 503 |
| Revised Code or division (C)(2) of section 4913.16 of the Revised | 504 |
| Code, or of a no-enforcement determination under section 4913.15 | 505 |
| or 4913.19 of the Revised Code or division (A)(1) or (C)(1) of | 506 |
| section 4913.16 of the Revised Code. The notice shall include all | 507 |
| of the following, as applicable: | 508 |
| (A) The date of the compliance failure; | 509 |
| (B) The citation to the statute that was not complied with; | 510 |
| (C) A brief description of the compliance failure; | 511 |
| (D) The fine or penalty to be imposed, if any; | 512 |
| (E) Instructions on how to remit payment of a fine or to | 513 |
| comply with a penalty; | 514 |
| (F) Instructions on how the person may file for | 515 |
| reconsideration under section 4913.25 of the Revised Code and how | 516 |
| to make a timely filing; | 517 |
| (G) A statement that failure to file for reconsideration | 518 |
| under section 4913.25 of the Revised Code will make any findings | 519 |
| final and enforceable. | 520 |
| Sec. 4913.25. (A) If either the person that requested the | 521 |
| inquiry or the person responsible for the compliance failure | 522 |
| disagrees with either a finding or a no-enforcement determination | 523 |
| made by the underground technical committee under section 4913.15, | 524 |
| 4913.16, 4913.17, or 4913.19 of the Revised Code, either person | 525 |
| may, not later than thirty days after receiving notice under | 526 |
| section 4913.23 of the Revised Code, file a written application | 527 |
| with the public utilities commission for reconsideration of the | 528 |
| committee's finding. The application for reconsideration must | 529 |
| state with particularity the grounds for reconsideration. | 530 |
| (B) Upon the filing of an application for reconsideration | 531 |
| under this section, the commission shall formally review the | 532 |
| finding of the committee. | 533 |
| (C) The commission may hold a hearing on the application for | 534 |
| reconsideration. | 535 |
| (D) The commission shall affirm, reject, or modify the | 536 |
| finding of the committee and shall impose any fine or penalty | 537 |
| authorized under this chapter or take no enforcement action. The | 538 |
| person responsible for the compliance failure shall pay any fine | 539 |
| not later than sixty days after the fine is imposed by the | 540 |
| commission. A person subject to a penalty shall begin compliance | 541 |
| with the penalty not later than thirty days after the penalty is | 542 |
| imposed by the commission. | 543 |
| Sec. 4913.251. A reconsideration order issued under section | 544 |
| 4913.25 of the Revised Code is subject to the rehearing and appeal | 545 |
| process under Chapter 4903. of the Revised Code. | 546 |
| Sec. 4913.252. All hearings conducted by the public utilities | 547 |
| commission under this chapter and under the process described in | 548 |
| section 4913.251 of the Revised Code shall be conducted in a | 549 |
| manner consistent with Chapter 4903. of the Revised Code. | 550 |
| Sec. 4913.26. Any documentation obtained pursuant to an | 551 |
| inquiry conducted under section 4913.09 of the Revised Code, | 552 |
| communications described in section 4913.152 of the Revised Code, | 553 |
| or an administrative hearing conducted under section 4913.19 of | 554 |
| the Revised Code shall be treated as confidential until a formal | 555 |
| proceeding is commenced under section 4913.25 of the Revised Code, | 556 |
| at which time the parties to the proceeding shall be bound by the | 557 |
| rules of the public utilities commission governing discovery in | 558 |
| matters pending before it. | 559 |
| Sec. 4913.27. Except for safety registrations and fines | 560 |
| collected under section 4913.03 of the Revised Code, the public | 561 |
| utilities commission shall deposit all fines collected under this | 562 |
| chapter into the underground facilities protection fund created | 563 |
| under section 4913.29 of the Revised Code. | 564 |
| Sec. 4913.29. There is hereby created in the state treasury | 565 |
| the underground facilities protection fund. The fund shall consist | 566 |
| of all fines collected under this chapter, except for safety | 567 |
| registrations and fines collected under section 4913.03 of the | 568 |
| Revised Code. The fund shall retain the interest earned. The | 569 |
| amounts in the fund shall be used solely to fund grants under | 570 |
| section 4913.31 of the Revised Code. | 571 |
| Sec. 4913.30. There is hereby created in the state treasury | 572 |
| the underground facilities protection administrative fund to be | 573 |
| administered by the public utilities commission. The fund shall | 574 |
| consist of all safety registrations and fines collected under | 575 |
| section 4913.03 of the Revised Code. The fund shall retain the | 576 |
| interest earned. The amounts in the fund shall be used for the | 577 |
| operation of the underground technical committee, created under | 578 |
| section 3781.34 of the Revised Code, and the commission in the | 579 |
| performance of its duties under this chapter. | 580 |
| Sec. 4913.31. (A) The public utilities commission may | 581 |
| administer an underground utility damage prevention grant program | 582 |
| to provide grants for any of the following purposes: | 583 |
| (1) Public awareness programs established by a protection | 584 |
| service; | 585 |
| (2) Training and education programs for excavators, | 586 |
| operators, designers, persons who locate underground utility | 587 |
| facilities, or other persons; | 588 |
| (3) Programs providing incentives for excavators, operators, | 589 |
| persons who locate underground utility facilities, or other | 590 |
| persons to reduce the number and severity of compliance failures. | 591 |
| (B) The commission shall determine the appropriate amount of | 592 |
| any grant issued under this section. | 593 |
| Sec. 4913.43. The public utilities commission shall submit to | 594 |
| the general assembly an annual report of the previous year's | 595 |
| activities under this chapter. Each report shall be submitted on | 596 |
| or before April 1. Each report shall be made publicly available on | 597 |
| the commission's web site. | 598 |
| Sec. 4913.45. (A) The public utilities commission shall, in | 599 |
| consultation with the underground technical committee, adopt rules | 600 |
| under section 111.15 of the Revised Code to carry out this | 601 |
| chapter. The rules shall include all of the following: | 602 |
| (1) Guidelines for consistent application of fines and | 603 |
| penalties under this chapter; | 604 |
| (2) Tracking compliance of persons on whom fines or penalties | 605 |
| have been imposed under this chapter; | 606 |
| (3) The required contents of the underground utility damage | 607 |
| prevention grant program established under section 4913.31 of the | 608 |
| Revised Code; | 609 |
| (4) The gathering, review, and acceptance of applications for | 610 |
| a grant under section 4913.31 of the Revised Code; | 611 |
| (5) The dispensation and tracking of money from the | 612 |
| underground facilities protection fund; | 613 |
| (6) The committee's duties, including rules that establish | 614 |
| the committee's operation, meeting schedule, and voting | 615 |
| procedures; | 616 |
| (7) The contents of the annual report required under section | 617 |
| 4913.43 of the Revised Code; | 618 |
| (8) The process related to collecting the registration under | 619 |
| section 4913.03 of the Revised Code. | 620 |
| (B) The commission may adopt rules establishing the | 621 |
| following: | 622 |
| (1) Procedures for conducting inquiries under section 4913.09 | 623 |
| of the Revised Code; | 624 |
| (2) Any other duties for the underground technical committee | 625 |
| pursuant to section 3781.36 of the Revised Code. | 626 |
| Sec. 4913.47. Notwithstanding any provision of the Revised | 627 |
| Code to the contrary, if a person is subject to more than one fine | 628 |
| for the same compliance failure, and one fine is imposed under | 629 |
| this chapter and one or more other fines are imposed under federal | 630 |
| law, rules, or regulations, the person shall not be required to | 631 |
| pay the fine imposed under this chapter. | 632 |
| Sec. 4913.50. Any proceeding held under this chapter, any | 633 |
| no-enforcement determination under this chapter, and any fine or | 634 |
| penalty imposed under this chapter shall neither prevent nor | 635 |
| preempt the right of any party to obtain civil damages for | 636 |
| personal injury or property damage in a private cause of action. | 637 |
| No finding, determination, or recommendation of the underground | 638 |
| technical committee, no decision of the public utilities | 639 |
| commission under this chapter, and no no-enforcement determination | 640 |
| under this chapter shall be determinative of civil liability in a | 641 |
| private cause of action for personal injury or property damage. | 642 |
| Sec. 4913.52. A person with a permit for excavation from the | 643 |
| state or a local governmental unit is subject to this chapter. | 644 |
| This chapter does not affect or impair local ordinances, charters, | 645 |
| or other provisions of law requiring permits to be obtained before | 646 |
| excavating. | 647 |
| Section 2. That existing sections 3781.25 and 4905.26 of the | 648 |
| Revised Code are hereby repealed. | 649 |