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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 and one | 151 |
member from each of the following stakeholder groups: | 152 |
(1) The natural gas transmission pipeline industry; | 153 |
(2) The natural gas distribution industry; | 154 |
(3) Electric utilities; | 155 |
(4) Electric cooperatives; | 156 |
(5) A statewide organization representing independent oil and | 157 |
gas producers; | 158 |
(6) The telephone industry; | 159 |
(7) Cable service providers; | 160 |
(8) Locators of underground utility facilities; | 161 |
(9) Municipal corporations; | 162 |
(10) The department of transportation; | 163 |
(11) The general public; | 164 |
(12) The hazardous liquids pipeline industry; | 165 |
(13) Designers, developers, or surveyors. | 166 |
(C) The governor shall appoint seven members, the president | 167 |
of the senate shall appoint five members, and the speaker of the | 168 |
house of representatives shall appoint five members. The governor, | 169 |
president, and speaker shall coordinate their appointments to | 170 |
ensure that the membership of the committee consists of persons | 171 |
from each of the stakeholder groups as described in division (B) | 172 |
of this section. | 173 |
(D) The terms of office for members initially appointed shall | 174 |
be staggered at two, three, and four years and determined by lot, | 175 |
except that the stakeholder group of the commercial excavator | 176 |
industry shall have only one member with an initial two-year term. | 177 |
The term of office for each member subsequently appointed shall be | 178 |
four years. | 179 |
(E) Each member may be reappointed for an unlimited number of | 180 |
times. | 181 |
(F) If a vacancy occurs during a member's term of office, a | 182 |
new member shall be appointed in the same manner as the original | 183 |
appointment. | 184 |
Sec. 3781.341. A member of the underground technical | 185 |
committee who has a conflict of interest in a particular review | 186 |
under section 4913.15 of the Revised Code shall declare the | 187 |
conflict to the committee and recuse self from committee | 188 |
discussions and voting regarding that review. | 189 |
Sec. 3781.342. (A) The underground technical committee may | 190 |
conduct meetings in person, by teleconference, or by video | 191 |
conference. | 192 |
(B) The committee shall establish a primary meeting location | 193 |
that is open and accessible to the public. | 194 |
(C) Before convening a meeting by teleconference or video | 195 |
conference, the committee shall send, via electronic mail, | 196 |
facsimile, or United States postal service, a copy of | 197 |
meeting-related documents to each committee member. | 198 |
(D) The minutes of each meeting shall specify who was | 199 |
attending by teleconference, who was attending by video | 200 |
conference, and who was physically present. Any vote taken in a | 201 |
meeting held by teleconference that is not unanimous shall be | 202 |
recorded as a roll call vote. | 203 |
Sec. 3781.343. A member of the underground technical | 204 |
committee is not subject to the disclosure requirements of | 205 |
sections 102.02 and 102.021 of the Revised Code by virtue of | 206 |
membership on the committee. | 207 |
Sec. 3781.36. (A) The underground technical committee shall | 208 |
do the following: | 209 |
(1) Coordinate with the public utilities commission in | 210 |
carrying out its duties under Chapter 4913. of the Revised Code; | 211 |
(2) Provide subject matter expertise when requested during | 212 |
inquiries conducted under section 4913.09 of the Revised Code; | 213 |
(3) Review reports in accordance with section 4913.15 of the | 214 |
Revised Code; | 215 |
(4) Make recommendations under sections 4913.15 and 4913.16 | 216 |
of the Revised Code; | 217 |
(5) Perform any additional duties as may be required under | 218 |
this chapter. | 219 |
(B) The committee shall meet as necessary to carry out its | 220 |
duties and meet the time-period requirements of division (B) of | 221 |
section 4913.15 of the Revised Code, but not less than once every | 222 |
three months. A majority of committee members constitutes a | 223 |
quorum. | 224 |
Sec. 3781.38. Every member of the underground technical | 225 |
committee shall be immune, individually and jointly, from civil | 226 |
liability for any act or omission done or made in performance of | 227 |
the member's duties while serving as a member of the committee, | 228 |
but only in the absence of willful misconduct. | 229 |
Sec. 4905.041. (A) The public utilities commission has | 230 |
exclusive jurisdiction to enforce, in accordance with Chapter | 231 |
4913. of the Revised Code, section 153.64, divisions (A) and (B) | 232 |
of section 3781.26, sections 3781.27 and 3781.28 to 3781.32, and | 233 |
Chapter 4913. of the Revised Code. | 234 |
(B) The commission's enforcement authority described in | 235 |
division (A) of this section is limited to actions specifically | 236 |
authorized by Chapter 4913. of the Revised Code. | 237 |
(C) Nothing in this section or Chapter 4913. of the Revised | 238 |
Code gives the commission or the underground technical committee, | 239 |
created under section 3781.34 of the Revised Code, the authority | 240 |
to determine the civil liability of any person for any compliance | 241 |
failure as that term is defined in section 4913.01 of the Revised | 242 |
Code. | 243 |
Sec. 4905.26. Upon complaint in writing against any public | 244 |
utility by any person, firm, or corporation, or upon the | 245 |
initiative or complaint of the public utilities commission, that | 246 |
any rate, fare, charge, toll, rental, schedule, classification, or | 247 |
service, or any joint rate, fare, charge, toll, rental, schedule, | 248 |
classification, or service rendered, charged, demanded, exacted, | 249 |
or proposed to be rendered, charged, demanded, or exacted, is in | 250 |
any respect unjust, unreasonable, unjustly discriminatory, | 251 |
unjustly preferential, or in violation of law, or that any | 252 |
regulation, measurement, or practice affecting or relating to any | 253 |
service furnished by the public utility, or in connection with | 254 |
such service, is, or will be, in any respect unreasonable, unjust, | 255 |
insufficient, unjustly discriminatory, or unjustly preferential, | 256 |
or that any service is, or will be, inadequate or cannot be | 257 |
obtained, and, upon complaint of a public utility as to any matter | 258 |
affecting its own product or service, if it appears that | 259 |
reasonable grounds for complaint are stated, the commission shall | 260 |
fix a time for hearing and shall notify complainants and the | 261 |
public utility thereof. The notice shall be served not less than | 262 |
fifteen days before hearing and shall state the matters complained | 263 |
of. The commission may adjourn such hearing from time to time. | 264 |
The parties to the complaint shall be entitled to be heard, | 265 |
represented by counsel, and to have process to enforce the | 266 |
attendance of witnesses. | 267 |
This section does not apply to matters governed by Chapter | 268 |
4913. of the Revised Code. | 269 |
Sec. 4913.01. As used in this chapter: | 270 |
(A) "Aggrieved person" means a person with duties and | 271 |
obligations under sections 153.64, 3781.27, and 3781.28 to 3781.32 | 272 |
of the Revised Code and divisions (A) and (B) of section 3781.26 | 273 |
of the Revised Code and who is directly involved with or impacted | 274 |
by the alleged compliance failure, as identified in the request | 275 |
for inquiry, of another person with duties and obligations under | 276 |
sections 153.64, 3781.27, and 3781.28 to 3781.32 of the Revised | 277 |
Code and divisions (A) and (B) of section 3781.26 of the Revised | 278 |
Code. | 279 |
(B) "Compliance failure" means a failure to comply with any | 280 |
provision of sections 153.64, 3781.27, and 3781.28 to 3781.32 of | 281 |
the Revised Code and divisions (A) and (B) of section 3781.26 of | 282 |
the Revised Code. | 283 |
(C) "Designer," "developer," "excavation," "excavator," | 284 |
"one-call notification system," "person," "protection service," | 285 |
"underground utility facility", and "utility" have the same | 286 |
meanings as in section 3781.25 of the Revised Code. | 287 |
Sec. 4913.03. (A) Each utility, excavator, developer, and | 288 |
designer who participates in the one-call notification system | 289 |
shall register with the public utilities commission and pay a | 290 |
safety registration not to exceed fifty dollars annually, which | 291 |
the commission may lower if the commission determines lowering the | 292 |
registration to be necessary. The commission shall administer and | 293 |
oversee the registration process. Failure to register shall result | 294 |
in a fine of not more than two thousand five hundred dollars. | 295 |
(B) The commission shall deposit all safety registrations and | 296 |
fines collected under this section in the underground facilities | 297 |
protection administrative fund created under section 4913.30 of | 298 |
the Revised Code. | 299 |
Sec. 4913.05. (A) Beginning January 1, 2016, an aggrieved | 300 |
person may request an inquiry with the staff of the public | 301 |
utilities commission seeking the imposition, in accordance with | 302 |
this chapter, of a fine or penalty on the person responsible for | 303 |
the alleged compliance failure described in division (A) of | 304 |
section 4913.01 of the Revised Code. The person shall make the | 305 |
request not later than ninety days after discovering the alleged | 306 |
compliance failure. The request shall not, by itself, cause the | 307 |
creation of a formal proceeding at the commission. | 308 |
(B) A request made under this section shall state, at a | 309 |
minimum and with particularity, the name of the person responsible | 310 |
for the alleged compliance failure, the date of the compliance | 311 |
failure, the nature of the compliance failure, the location of the | 312 |
compliance failure, and any other information that the requestor | 313 |
considers relevant. | 314 |
(C) The staff shall, not later than ten business days after | 315 |
receiving a request under this section, notify the person | 316 |
responsible for the alleged compliance failure that the request | 317 |
was made. | 318 |
Sec. 4913.07. If a request for an inquiry is made under | 319 |
section 4913.05 of the Revised Code, the person responsible for | 320 |
the alleged compliance failure may, not later than thirty days | 321 |
after being notified under that section, respond to the request, | 322 |
providing any information that the person considers relevant to | 323 |
the request. The response may include an admission of the | 324 |
compliance failure. | 325 |
Sec. 4913.09. (A) The staff of the public utilities | 326 |
commission shall conduct an inquiry upon receiving a request made | 327 |
under section 4913.05 of the Revised Code. The inquiry shall be | 328 |
limited to whether there was a compliance failure. | 329 |
(B) During an inquiry conducted under this section, the staff | 330 |
shall examine relevant facts regarding the alleged compliance | 331 |
failure and may request records verification, informal meetings, | 332 |
teleconferences, photo documentation, and any other documentation | 333 |
or information relevant to the inquiry. | 334 |
Sec. 4913.13. The staff of the public utilities commission | 335 |
shall make a report of each inquiry conducted under section | 336 |
4913.09 of the Revised Code available to the underground technical | 337 |
committee, created under section 3781.34 of the Revised Code. The | 338 |
report shall contain any admission made under section 4913.07 of | 339 |
the Revised Code by the person who is the subject of the inquiry. | 340 |
This report shall not contain a recommendation as to the | 341 |
imposition of a fine or penalty or as to whether no enforcement | 342 |
action should be taken. | 343 |
Sec. 4913.15. (A) The underground technical committee shall | 344 |
review every report of the staff of the public utilities | 345 |
commission made available under section 4913.13 of the Revised | 346 |
Code or submitted under section 4913.16 of the Revised Code. | 347 |
(B) Not later than ninety days after the committee obtains | 348 |
the staff's report under section 4913.13 of the Revised Code, the | 349 |
committee shall do any of the following: | 350 |
(1) Make a written recommendation to the commission as to the | 351 |
imposition of a fine, a penalty, or a combination of fines and | 352 |
penalties, in accordance with section 4913.151 of the Revised | 353 |
Code; | 354 |
(2) Determine that no enforcement action should be taken and | 355 |
notify the commission in writing of the determination; | 356 |
(3) Request a hearing under section 4913.19 of the Revised | 357 |
Code. | 358 |
(C) There shall be a majority vote of the full committee, | 359 |
with at least one of the commercial-excavator stakeholders voting | 360 |
with the majority, for the committee to do any of the following: | 361 |
(1) Recommend a fine, penalty, or a combination of fines and | 362 |
penalties under this section or section 4913.16 of the Revised | 363 |
Code; | 364 |
(2) Determine, under this section or section 4913.16 of the | 365 |
Revised Code, that no enforcement action should be taken; | 366 |
(3) Request a hearing under section 4913.19 of the Revised | 367 |
Code. | 368 |
If the committee fails to achieve the required majority for | 369 |
any action described in division (C) of this section, it shall | 370 |
notify the commission. | 371 |
Sec. 4913.151. In determining a fine or penalty | 372 |
recommendation as required under section 4913.15 or 4913.16 of the | 373 |
Revised Code: | 374 |
(A) If the compliance failure is the first for the person | 375 |
responsible, the underground technical committee may recommend a | 376 |
penalty of a training requirement, an education requirement, or | 377 |
another nonmonetary penalty, or may recommend a fine not exceeding | 378 |
two thousand five hundred dollars, or may recommend a combination | 379 |
of this fine and these penalties. | 380 |
(B) If the compliance failure is a subsequent compliance | 381 |
failure for the person responsible, the committee may recommend a | 382 |
penalty of a training requirement, an education requirement, or | 383 |
another nonmonetary penalty, or may recommend a fine not exceeding | 384 |
five thousand dollars, or may recommend a combination of this fine | 385 |
and these penalties. | 386 |
(C) Any penalty recommended under this section shall be | 387 |
appropriately related to enforcement of the provisions enumerated | 388 |
in division (A) of section 4905.041 of the Revised Code. | 389 |
Sec. 4913.152. The underground technical committee may | 390 |
communicate with persons who have knowledge or information | 391 |
concerning the alleged compliance failure as part of the | 392 |
committee's review under section 4913.15 of the Revised Code and | 393 |
to assist the committee in making recommendations under that | 394 |
section and section 4913.16 of the Revised Code. | 395 |
Sec. 4913.16. (A)(1) If the underground technical committee | 396 |
votes during the ninety-day time period as required under division | 397 |
(B) of section 4913.15 of the Revised Code but fails to achieve | 398 |
the required majority as described in division (C) of that | 399 |
section, no enforcement action shall be taken. | 400 |
(2) If the committee, during the ninety-day time period, | 401 |
fails to vote on any action as required under division (B) of | 402 |
section 4913.15 of the Revised Code, the staff of the public | 403 |
utilities commission shall make a recommendation as to a fine or | 404 |
penalty or no enforcement. The staff shall cause the initial | 405 |
report made available under section 4913.13 of the Revised Code to | 406 |
be amended to add the recommendation, and shall submit the amended | 407 |
report to the committee. | 408 |
(B) Not later than thirty days after the committee receives | 409 |
an amended report under division (A)(2) of this section, the | 410 |
committee shall do any of the following, subject to division (C) | 411 |
of section 4913.15 of the Revised Code: | 412 |
(1) Make a written recommendation to the commission as to the | 413 |
imposition of a fine, penalty, or a combination of fines and | 414 |
penalties in accordance with section 4913.151 of the Revised Code; | 415 |
(2) Determine that no enforcement action should be taken and | 416 |
notify the commission in writing of the determination; | 417 |
(3) Request a hearing under section 4913.19 of the Revised | 418 |
Code. | 419 |
(C)(1) If the committee votes during the thirty-day time | 420 |
period as required under division (B) of this section but fails to | 421 |
achieve the required majority as described in division (C) of | 422 |
section 4913.15 of the Revised Code, no enforcement action shall | 423 |
be taken. | 424 |
(2) If the committee fails to vote on any action as required | 425 |
under division (B) of this section, the commission shall impose a | 426 |
fine or penalty consistent with section 4913.151 of the Revised | 427 |
Code or take no enforcement action. The commission shall inform | 428 |
the committee of its decision. | 429 |
Sec. 4913.17. (A) Based upon the number and type of | 430 |
compliance failures committed by a person, the underground | 431 |
technical committee may find, as part of the committee's review | 432 |
under section 4913.15 of the Revised Code, that the person is a | 433 |
persistent noncomplier. | 434 |
(B) The committee shall report a finding made under division | 435 |
(A) of this section to the staff of the public utilities | 436 |
commission. | 437 |
(C) There shall be a majority vote of the full committee, | 438 |
with at least one of the commercial-excavator stakeholders voting | 439 |
with the majority, for the committee to make a finding under | 440 |
division (A) of this section. | 441 |
Sec. 4913.171. If the underground technical committee reports | 442 |
that a person responsible for a compliance failure has been found | 443 |
to be a persistent noncomplier under section 4913.17 of the | 444 |
Revised Code, the public utilities commission may impose a fine on | 445 |
the person not exceeding ten thousand dollars. A penalty | 446 |
recommended by the committee under section 4913.15 or 4913.16 of | 447 |
the Revised Code may also be imposed by the commission. | 448 |
Sec. 4913.19. In lieu of making a recommendation of a fine or | 449 |
penalty or a no-enforcement determination, the underground | 450 |
technical committee may request an administrative hearing with the | 451 |
public utilities commission if the committee believes that any | 452 |
person responsible for a compliance failure should be subject to a | 453 |
fine or penalty exceeding those described in section 4913.151 of | 454 |
the Revised Code. As a result of the hearing, the commission shall | 455 |
impose a fine or penalty or take no enforcement action. | 456 |
Sec. 4913.20. In determining a fine or penalty | 457 |
recommendation or imposition or whether no enforcement action | 458 |
should be taken under section 4913.15, 4913.16, 4913.171, 4913.19, | 459 |
or 4913.25 of the Revised Code, the underground technical | 460 |
committee, the public utilities commission, and the commission | 461 |
staff, as applicable, shall consider the following factors, as | 462 |
they apply: | 463 |
(A) The person's demonstrated history of one-call, design, | 464 |
and excavation practices, including the following: | 465 |
(1) The number of locate requests received and responded to; | 466 |
(2) The number of locates completed; | 467 |
(3) The number of one calls placed; | 468 |
(4) The number of excavations completed; | 469 |
(5) The number of design or development projects. | 470 |
(B) The nature, circumstances, and gravity of the compliance | 471 |
failure, including the amount of damage involved in relation to | 472 |
the compliance failure, and whether it resulted in death, serious | 473 |
injury, dismemberment, or a significant threat to public safety; | 474 |
(C) The organizational size of the responsible person; | 475 |
(D) The prospective effect of a fine on the person's ability | 476 |
to pay business obligations and otherwise conduct business; | 477 |
(E) The history or number of compliance failures by the | 478 |
person; | 479 |
(F) The good faith effort on the person's part in attempting | 480 |
to achieve compliance after the compliance failure was identified. | 481 |
Sec. 4913.21. Except as provided in sections 4913.171 and | 482 |
4913.19 of the Revised Code, the public utilities commission shall | 483 |
impose every recommendation made under section 4913.15 or 4913.16 | 484 |
of the Revised Code by the underground technical committee. | 485 |
Sec. 4913.22. A person subject to a fine imposed under | 486 |
section 4913.171, 4913.19, or 4913.21 of the Revised Code or | 487 |
division (C)(2) of section 4913.16 of the Revised Code shall pay | 488 |
the fine not later than sixty days after the fine or penalty is | 489 |
imposed. A person subject to a penalty imposed under any of those | 490 |
sections or that division shall begin compliance with the penalty | 491 |
not later than thirty days after the penalty is imposed. | 492 |
Sec. 4913.23. The public utilities commission shall, by | 493 |
letter, promptly notify the person that requested the inquiry and | 494 |
the person responsible for the compliance failure of any fine or | 495 |
penalty imposed under section 4913.171, 4913.19, or 4913.21 of the | 496 |
Revised Code or division (C)(2) of section 4913.16 of the Revised | 497 |
Code, or of a no-enforcement determination under section 4913.15 | 498 |
or 4913.19 of the Revised Code or division (A)(1) or (C)(1) of | 499 |
section 4913.16 of the Revised Code. The notice shall include all | 500 |
of the following, as applicable: | 501 |
(A) The date of the compliance failure; | 502 |
(B) The citation to the statute that was not complied with; | 503 |
(C) A brief description of the compliance failure; | 504 |
(D) The fine or penalty to be imposed, if any; | 505 |
(E) Instructions on how to remit payment of a fine or to | 506 |
comply with a penalty; | 507 |
(F) Instructions on how the person may file for | 508 |
reconsideration under section 4913.25 of the Revised Code and how | 509 |
to make a timely filing; | 510 |
(G) A statement that failure to file for reconsideration | 511 |
under section 4913.25 of the Revised Code will make any findings | 512 |
final and enforceable. | 513 |
Sec. 4913.25. (A) If either the person that requested the | 514 |
inquiry or the person responsible for the compliance failure | 515 |
disagrees with either a finding or a no-enforcement determination | 516 |
made by the underground technical committee under section 4913.15, | 517 |
4913.16, 4913.17, or 4913.19 of the Revised Code, either person | 518 |
may, not later than thirty days after receiving notice under | 519 |
section 4913.23 of the Revised Code, file a written application | 520 |
with the public utilities commission for reconsideration of the | 521 |
committee's finding. The application for reconsideration must | 522 |
state with particularity the grounds for reconsideration. | 523 |
(B) Upon the filing of an application for reconsideration | 524 |
under this section, the commission shall formally review the | 525 |
finding of the committee. | 526 |
(C) The commission may hold a hearing on the application for | 527 |
reconsideration. | 528 |
(D) The commission shall affirm, reject, or modify the | 529 |
finding of the committee and shall impose any fine or penalty | 530 |
authorized under this chapter or take no enforcement action. The | 531 |
person responsible for the compliance failure shall pay any fine | 532 |
not later than sixty days after the fine is imposed by the | 533 |
commission. A person subject to a penalty shall begin compliance | 534 |
with the penalty not later than thirty days after the penalty is | 535 |
imposed by the commission. | 536 |
Sec. 4913.251. A reconsideration order issued under section | 537 |
4913.25 of the Revised Code is subject to the rehearing and appeal | 538 |
process under Chapter 4903. of the Revised Code. | 539 |
Sec. 4913.252. All hearings conducted by the public utilities | 540 |
commission under this chapter and under the process described in | 541 |
section 4913.251 of the Revised Code shall be conducted in a | 542 |
manner consistent with Chapter 4903. of the Revised Code. | 543 |
Sec. 4913.26. Any documentation obtained pursuant to an | 544 |
inquiry conducted under section 4913.09 of the Revised Code, | 545 |
communications described in section 4913.152 of the Revised Code, | 546 |
or an administrative hearing conducted under section 4913.19 of | 547 |
the Revised Code shall be treated as confidential until a formal | 548 |
proceeding is commenced under section 4913.25 of the Revised Code, | 549 |
at which time the parties to the proceeding shall be bound by the | 550 |
rules of the public utilities commission governing discovery in | 551 |
matters pending before it. | 552 |
Sec. 4913.27. Except for safety registrations and fines | 553 |
collected under section 4913.03 of the Revised Code, the public | 554 |
utilities commission shall deposit all fines collected under this | 555 |
chapter into the underground facilities protection fund created | 556 |
under section 4913.29 of the Revised Code. | 557 |
Sec. 4913.29. There is hereby created in the state treasury | 558 |
the underground facilities protection fund. The fund shall consist | 559 |
of all fines collected under this chapter, except for safety | 560 |
registrations and fines collected under section 4913.03 of the | 561 |
Revised Code. The fund shall retain the interest earned. The | 562 |
amounts in the fund shall be used solely to fund grants under | 563 |
section 4913.31 of the Revised Code. | 564 |
Sec. 4913.30. There is hereby created in the state treasury | 565 |
the underground facilities protection administrative fund to be | 566 |
administered by the public utilities commission. The fund shall | 567 |
consist of all safety registrations and fines collected under | 568 |
section 4913.03 of the Revised Code. The fund shall retain the | 569 |
interest earned. The amounts in the fund shall be used for the | 570 |
operation of the underground technical committee, created under | 571 |
section 3781.34 of the Revised Code, and the commission in the | 572 |
performance of its duties under this chapter. | 573 |
Sec. 4913.31. (A) The public utilities commission may | 574 |
administer an underground utility damage prevention grant program | 575 |
to provide grants for any of the following purposes: | 576 |
(1) Public awareness programs established by a protection | 577 |
service; | 578 |
(2) Training and education programs for excavators, | 579 |
operators, designers, persons who locate underground utility | 580 |
facilities, or other persons; | 581 |
(3) Programs providing incentives for excavators, operators, | 582 |
persons who locate underground utility facilities, or other | 583 |
persons to reduce the number and severity of compliance failures. | 584 |
(B) The commission shall determine the appropriate amount of | 585 |
any grant issued under this section. | 586 |
Sec. 4913.43. The public utilities commission shall submit to | 587 |
the general assembly an annual report of the previous year's | 588 |
activities under this chapter. Each report shall be submitted on | 589 |
or before April 1. Each report shall be made publicly available on | 590 |
the commission's web site. | 591 |
Sec. 4913.45. (A) The public utilities commission shall, in | 592 |
consultation with the underground technical committee, adopt rules | 593 |
under section 111.15 of the Revised Code to carry out this | 594 |
chapter. The rules shall include all of the following: | 595 |
(1) Guidelines for consistent application of fines and | 596 |
penalties under this chapter; | 597 |
(2) Tracking compliance of persons on whom fines or penalties | 598 |
have been imposed under this chapter; | 599 |
(3) The required contents of the underground utility damage | 600 |
prevention grant program established under section 4913.31 of the | 601 |
Revised Code; | 602 |
(4) The gathering, review, and acceptance of applications for | 603 |
a grant under section 4913.31 of the Revised Code; | 604 |
(5) The dispensation and tracking of money from the | 605 |
underground facilities protection fund; | 606 |
(6) The committee's duties, including rules that establish | 607 |
the committee's operation, meeting schedule, and voting | 608 |
procedures; | 609 |
(7) The contents of the annual report required under section | 610 |
4913.43 of the Revised Code; | 611 |
(8) The process related to collecting the registration under | 612 |
section 4913.03 of the Revised Code. | 613 |
(B) The commission may adopt rules establishing the | 614 |
following: | 615 |
(1) Procedures for conducting inquiries under section 4913.09 | 616 |
of the Revised Code; | 617 |
(2) Any other duties for the underground technical committee | 618 |
pursuant to section 3781.36 of the Revised Code. | 619 |
Sec. 4913.47. Notwithstanding any provision of the Revised | 620 |
Code to the contrary, if a person is subject to more than one fine | 621 |
for the same compliance failure, and one fine is imposed under | 622 |
this chapter and one or more other fines are imposed under federal | 623 |
law, rules, or regulations, the person shall not be required to | 624 |
pay the fine imposed under this chapter. | 625 |
Sec. 4913.50. Any proceeding held under this chapter, any | 626 |
no-enforcement determination under this chapter, and any fine or | 627 |
penalty imposed under this chapter shall neither prevent nor | 628 |
preempt the right of any party to obtain civil damages for | 629 |
personal injury or property damage in a private cause of action. | 630 |
No finding, determination, or recommendation of the underground | 631 |
technical committee, no decision of the public utilities | 632 |
commission under this chapter, and no no-enforcement determination | 633 |
under this chapter shall be determinative of civil liability in a | 634 |
private cause of action for personal injury or property damage. | 635 |
Sec. 4913.52. A person with a permit for excavation from the | 636 |
state or a local governmental unit is subject to this chapter. | 637 |
This chapter does not affect or impair local ordinances, charters, | 638 |
or other provisions of law requiring permits to be obtained before | 639 |
excavating. | 640 |
Section 2. That existing sections 3781.25 and 4905.26 of the | 641 |
Revised Code are hereby repealed. | 642 |