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S. B. No. 378 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsor:
Senator Peterson
A BILL
To amend section 3781.25 and to enact sections
3781.34, 3781.341, 3781.342, 3781.36, 4905.041,
4913.01, 4913.03, 4913.05, 4913.07, 4913.09,
4913.13, 4913.15, 4913.151, 4913.152, 4913.16,
4913.17, 4913.171, 4913.19, 4913.21, 4913.22,
4913.23, 4913.25, 4913.27, 4913.29, 4913.31,
4913.45, 4913.47, 4913.50, and 4913.52 of the
Revised Code regarding the enforcement of the law
governing the protection of underground utility
facilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 3781.25 be amended and sections
3781.34, 3781.341, 3781.342, 3781.36, 4905.041, 4913.01, 4913.03,
4913.05, 4913.07, 4913.09, 4913.13, 4913.15, 4913.151, 4913.152,
4913.16, 4913.17, 4913.171, 4913.19, 4913.21, 4913.22, 4913.23,
4913.25, 4913.27, 4913.29, 4913.31, 4913.45, 4913.47, 4913.50, and
4913.52 of the Revised Code be enacted to read as follows:
Sec. 3781.25. As used in sections 3781.25 to 3781.32 3781.36
of the Revised Code:
(A) "Protection service" means a notification center, but not
an owner of an individual utility, that exists for the purpose of
receiving notice from persons that prepare plans and
specifications for or that engage in excavation work, that
distributes this information to its members and participants, and
that has registered by March 14, 1989, with the secretary of state
and the public utilities commission of Ohio under former division
(F) of section 153.64 of the Revised Code as it existed on that
date.
(B) "Underground utility facility" includes any item buried
or placed below ground or submerged under water for use in
connection with the storage or conveyance of water or sewage;
electronic, telephonic, or telegraphic communications; television
signals; electricity; crude oil; petroleum products; artificial or
liquefied petroleum; manufactured, mixed, or natural gas;
synthetic or liquefied natural gas; propane gas; coal; steam; hot
water; or other substances. "Underground utility facility"
includes all operational underground pipes, sewers, tubing,
conduits, cables, valves, lines, wires, worker access holes, and
attachments, owned by any person, firm, or company. "Underground
utility facility" does not include a private septic system in a
one-family or multi-family dwelling utilized only for that
dwelling and not connected to any other system.
(C) "Utility" means any owner or operator, or an agent of an
owner or operator, of an underground utility facility, including
any public authority, that owns or operates an underground utility
facility. "Utility" does not include the owners of the following
types of real property with respect to any underground utility
facility located on that property:
(1) The owner of a single-family or two-, three-, or
four-unit residential dwelling;
(2) The owner of an apartment complex;
(3) The owner of a commercial or industrial building or
complex of buildings, including but not limited to, factories and
shopping centers;
(5) The owner of an exempt domestic well as defined in
section 1509.01 of the Revised Code.
(D) "Approximate location" means the immediate area within
the perimeter of a proposed excavation site where the underground
utility facilities are located.
(E) "Tolerance zone" means the site of the underground
utility facility including the width of the underground utility
facility plus eighteen inches on each side of the facility.
(F) "Working days" excludes Saturdays, Sundays, and legal
holidays as defined in section 1.14 of the Revised Code and
"hours" excludes hours on Saturdays, Sundays, and legal holidays.
(G) "Designer" means an engineer, architect, landscape
architect, contractor, surveyor, or other person who develops
plans or designs for real property improvement or any other
activity that will involve excavation.
(H) "Developer" means the person for whom the excavation is
made and who will own or be the lessee of any improvement that is
the object of the excavation.
(I) "Excavation" means the use of hand tools, powered
equipment, or explosives to move earth, rock, or other materials
in order to penetrate or bore or drill into the earth, or to
demolish any structure whether or not it is intended that the
demolition will disturb the earth. "Excavation" includes such
agricultural operations as the installation of drain tile, but
excludes agricultural operations such as tilling that do not
penetrate the earth to a depth of more than twelve inches.
"Excavation" excludes any activity by a governmental entity which
does not penetrate the earth to a depth of more than twelve
inches. "Excavation" excludes coal mining and reclamation
operations regulated under Chapter 1513. of the Revised Code and
rules adopted under it.
(J) "Excavation site" means the area within which excavation
will be performed.
(K) "Excavator" means the person or persons responsible for
making the actual excavation.
(L) "Interstate gas pipeline" means an interstate gas
pipeline subject to the "Natural Gas Pipeline Safety Act of 1968,"
82 Stat. 720, 49 U.S.C. 1671, as amended.
(M) "Interstate hazardous liquids pipeline" means an
interstate hazardous liquids pipeline subject to the "Hazardous
Liquid Pipeline Safety Act of 1979," 93 Stat. 1003, 49 U.S.C.
2002, as amended.
(N) "Special notification requirements" means requirements
for notice to an owner of an interstate hazardous liquids pipeline
or an interstate gas pipeline that must be made prior to
commencing excavation and pursuant to the owner's public safety
program adopted under federal law.
(O) "Commercial excavator" means any excavator, excluding a
utility as defined in this section, that satisfies both of the
following:
(1) For compensation, performs, directs, supervises, or is
responsible for the excavation, construction, improvement,
renovation, repair, or maintenance on a construction project and
holds out or represents oneself as qualified or permitted to act
as such;
(2) Employs tradespersons who actually perform excavation,
construction, improvement, renovation, repair, or maintenance on a
construction project.
(P) "Person" has the same meaning as in section 1.59 of the
Revised Code and also includes a public authority.
(Q) "Positive response system" means an automated system
facilitated by a protection service allowing a utility to
communicate to an excavator the presence or absence of any
conflict between the existing underground utility facilities and
the proposed excavation site.
(R) "One-call notification system" means the software or
communications system used by a protection system to notify its
membership of proposed excavation sites.
(S) "Project" means any undertaking by a private party of an
improvement requiring excavation.
(T) "Public authority" has the same meaning as in section
153.64 of the Revised Code.
(U) "Improvement" means any construction, reconstruction,
improvement, enlargement, alteration, or repair of a building,
highway, drainage system, water system, road, street, alley,
sewer, ditch, sewage disposal plant, water works, and all other
structures or works of any nature.
(V) "Emergency" means an unexpected occurrence causing a
disruption or damage to an underground utility facility that
requires immediate repair or a situation that creates a clear and
imminent danger that demands immediate action to prevent or
mitigate loss of or damage to life, health, property, or essential
public services.
(W) "Nondestructive manner" means using low-impact, low-risk
technologies such as hand tools, or hydro or air vacuum excavation
equipment.
(X) "Cable service provider" has the same meaning as in
section 1332.01 of the Revised Code.
(Y) "Electric cooperative" and "electric utility" have the
same meanings as in section 4928.01 of the Revised Code.
Sec. 3781.34. (A) There is hereby created the underground
technical committee.
(B) The committee shall consist of four members from the
stakeholder group of the commercial excavator industry and one
member from each of the following stakeholder groups, with all
seventeen members to be appointed by the governor with the consent
of the senate:
(1) The natural gas transmission pipeline industry;
(2) The natural gas distribution industry;
(4) Electric cooperatives;
(5) Oil and gas producers;
(6) The telephone industry;
(7) Cable service providers;
(8) Locators of underground utility facilities;
(9) Municipal corporations;
(10) The department of transportation;
(12) The hazardous liquids pipeline industry;
(13) Designers, developers, or surveyors.
(C) The governor shall appoint an alternate member for each
member listed under division (B) of this section.
(D) The terms of office for members initially appointed under
division (B) of this section shall be staggered at two, three, and
four years and determined by lot, except that the stakeholder
group of the commercial excavator industry shall have only one
member with an initial two-year term. The term of office for each
member subsequently appointed shall be four years.
(E) Each member and each alternate member may be reappointed
for an unlimited number of times.
(F) If a vacancy occurs during a member's term of office, the
alternate member appointed for that member shall assume the
vacated office and serve the rest of the term. If a vacancy occurs
during the term of office of an alternate member, the governor
shall appoint a new alternate member in the same manner as an
original appointment.
Sec. 3781.341. (A) A member of the underground technical
committee who has a conflict of interest in a particular review
under section 4913.15 of the Revised Code shall declare the
conflict to the committee and recuse self from committee
discussions and voting regarding that review.
(B) An alternate member shall serve temporarily in the place
of the member for whom the alternate member was appointed if the
nonalternate member is a party to a review being conducted by the
committee under section 4913.15 of the Revised Code or if the
member has recused self under this section.
Sec. 3781.342. The underground technical committee may
conduct meetings in person, by telephone, or by video conference.
Sec. 3781.36. (A) The underground technical committee shall
do the following:
(1) Coordinate with the public utilities commission in
carrying out its duties under Chapter 4913. of the Revised Code;
(2) Provide subject matter expertise when requested during
inquiries conducted under section 4913.09 of the Revised Code;
(3) Review reports in accordance with section 4913.15 of the
Revised Code;
(4) Make recommendations under section 4913.15 of the Revised
Code;
(5) Coordinate with the commission in establishing rules
under divisions (A)(1) and (2) of section 4913.45 of the Revised
Code;
(6) Perform any additional duties as may be required under
this chapter.
(B) The committee shall meet as necessary to carry out its
duties and meet the time-period requirements of division (B) of
section 4913.15 of the Revised Code, but not less than once every
three months. A majority of committee members constitutes a
quorum.
Sec. 4905.041. (A) The public utilities commission has
exclusive jurisdiction to enforce, in accordance with Chapter
4913. of the Revised Code, sections 153.64, 3781.27, and 3781.28
to 3781.32 of the Revised Code and divisions (A) and (B) of
section 3781.26 of the Revised Code.
(B) The commission's enforcement authority described in
division (A) of this section is limited to actions specifically
authorized by Chapter 4913. of the Revised Code upon the filing of
a complaint under section 4913.05 of the Revised Code.
(C) Nothing in this section or Chapter 4913. of the Revised
Code gives the commission or the underground technical committee,
created under section 3781.34 of the Revised Code, the authority
to determine the civil liability of any person for any compliance
failure as that term is defined in section 4913.01 of the Revised
Code.
Sec. 4913.01. As used in this chapter:
"Compliance failure" means a failure to comply with any
provision of sections 153.64, 3781.27, and 3781.28 to 3781.32 of
the Revised Code and divisions (A) and (B) of section 3781.26 of
the Revised Code.
"Designer," "developer," "excavation," "excavator," "one-call
notification system," "person," "protection service," "underground
utility facility", and "utility" have the same meanings as in
section 3781.25 of the Revised Code.
Sec. 4913.03. Each utility, excavator, developer, and
designer who participates in the one-call notification system
shall register with the public utilities commission and pay a
safety registration not to exceed fifty dollars annually, which
the commission may lower if the commission determines lowering the
registration to be necessary. The amounts shall be used to fund
the operation of the underground technical committee, created
under section 3781.34 of the Revised Code, and the commission in
the performance of duties under this chapter. The commission shall
administer and oversee the registration process. Failure to
register shall result in a fine of not more than two thousand five
hundred dollars.
Sec. 4913.05. (A) Any person who has been aggrieved as a
result of a compliance failure may file a complaint with the
public utilities commission to seek punitive action against the
person responsible for the alleged compliance failure.
(B) A complaint filed under this section shall state, at a
minimum and with particularity, the name of the person responsible
for the alleged compliance failure, the date of the compliance
failure, the nature of the compliance failure, the location of the
compliance failure, and any other information that the complainant
considers relevant.
(C) The commission shall, not later than five business days
after receiving a complaint under this section, notify the person
responsible for the alleged compliance failure that the complaint
was filed.
Sec. 4913.07. If a complaint is filed under section 4913.05
of the Revised Code, the person responsible for the alleged
compliance failure may, not later than thirty days after receiving
notice under that section, respond to the complaint, providing any
information that the person considers relevant to the complaint.
The response may include an admission of the compliance failure.
Sec. 4913.09. (A) The public utilities commission shall
conduct an inquiry upon receiving a complaint made under section
4913.05 of the Revised Code. The inquiry shall be limited to
whether there was a compliance failure.
(B) During an inquiry conducted under this section, the
commission shall examine relevant facts regarding the alleged
compliance failure and may request records verification, informal
meetings, teleconferences, photo documentation, and any other
documentation or information relevant to the inquiry.
Sec. 4913.13. The public utilities commission shall make a
report of each inquiry conducted under section 4913.09 of the
Revised Code to the underground technical committee, created under
section 3781.34 of the Revised Code. The report shall contain any
admission made under section 4913.07 of the Revised Code by the
person who is the subject of the inquiry. This report shall not
contain a recommendation as to the imposition of a fine or
penalty.
Sec. 4913.15. (A) The underground technical committee shall
review every report submitted by the public utilities commission
under sections 4913.13 and 4913.16 of the Revised Code.
(B) Not later than ninety days after the committee receives
the commission's report under section 4913.13 of the Revised Code,
the committee shall do either of the following:
(1) Make a recommendation to the commission as to the
imposition of a fine, a penalty, or a combination of fines and
penalties, in accordance with section 4913.151 of the Revised
Code;
(2) Dismiss the case and notify the commission of the
dismissal.
(C) There shall be a majority vote of the full committee,
with at least one of the commercial-excavator stakeholders voting
with the majority, for the committee to do either of the
following:
(1) Recommend a fine, penalty, or a combination of fines and
penalties under this section or section 4913.16 of the Revised
Code;
(2) Dismiss a case under this section or section 4913.16 of
the Revised Code.
If the committee fails to achieve the required majority for
any action described in divisions (C)(1) and (2) of this section,
it shall notify the commission.
Sec. 4913.151. (A) In determining a fine or penalty
recommendation as required under section 4913.15 or 4913.16 of the
Revised Code, the underground technical committee shall consider
the following, as applicable:
(1) The person's demonstrated history of one-call, design,
and excavation practices, including the following:
(a) The number of locate requests received and responded to;
(b) The number of locates completed;
(c) The number of one calls placed;
(d) The number of excavations completed;
(e) The number of design or development projects.
(2) The nature, circumstances, and gravity of the compliance
failure, including the amount of damage involved in relation to
the compliance failure, and whether it resulted in death, serious
injury, dismemberment, or a significant threat to public safety;
(3) The organizational size of the responsible person;
(4) The prospective effect of a fine on the person's ability
to pay business obligations and otherwise conduct business;
(5) The history or number of compliance failures by the
person;
(6) The good faith effort on the person's part in attempting
to achieve compliance after the compliance failure was identified.
(B)(1) If the compliance failure is the first for the person
responsible, the committee may recommend a penalty of a training
requirement, an education requirement, or another penalty, or may
recommend a fine not exceeding two thousand five hundred dollars,
or may recommend a combination of this fine and these penalties.
(2) If the compliance failure is a subsequent compliance
failure for the person responsible, the committee may recommend a
penalty of a training requirement, an education requirement, or
another penalty, or may recommend a fine not exceeding five
thousand dollars, or may recommend a combination of this fine and
these penalties.
Any penalty recommended under this division shall be
appropriately related to enforcement of the provisions enumerated
in division (A) of section 4905.041 of the Revised Code.
Sec. 4913.152. The underground technical committee may
communicate with responsible persons as part of the committee's
review under section 4913.15 of the Revised Code and to assist the
committee in making recommendations under that section and section
4913.16 of the Revised Code.
Sec. 4913.16. (A) If the underground technical committee
fails to make a recommendation during the ninety-day time period
required under division (B) of section 4913.15 of the Revised
Code, and the committee has not dismissed the case, the public
utilities commission shall make a recommendation as to a fine or
penalty. The commission shall amend the initial report made under
section 4913.13 of the Revised Code to add the recommendation, and
shall submit the amended report to the committee.
(B) Not later than thirty days after the committee receives
the amended report, the committee shall do either of the
following:
(1) Make a recommendation to the commission as to the
imposition of a fine, penalty, or a combination of fines and
penalties in accordance with division (C) of section 4913.15 and
section 4913.151 of the Revised Code;
(2) Dismiss the case and notify the commission of the
dismissal.
(C) If the committee fails to make a recommendation during
the thirty-day time period required under division (B) of this
section, and the committee has not dismissed the case under that
division, the commission shall, at its sole discretion, impose a
fine or penalty consistent with section 4913.151 of the Revised
Code.
Sec. 4913.17. (A) Based upon the number and type of
compliance failures committed by a person, the underground
technical committee may find, as part of the committee's review
under section 4913.15 of the Revised Code, that the person is a
persistent noncomplier.
(B) The committee shall report a finding made under division
(A) of this section to the public utilities commission.
(C) There shall be a majority vote of the full committee,
with at least one of the commercial-excavator stakeholders voting
with the majority, for the committee to make a finding under
division (A) of this section.
Sec. 4913.171. If the underground technical committee reports
that a person responsible for a compliance failure has been found
to be a persistent noncomplier under section 4913.17 of the
Revised Code, the public utilities commission may, at its sole
discretion, impose a fine on the person not exceeding ten thousand
dollars. A penalty recommended by the committee under section
4913.15 or 4913.16 of the Revised Code may also be imposed by the
commission.
Sec. 4913.19. (A) The underground technical committee may
request a hearing with the public utilities commission if the
committee believes that any person responsible for a compliance
failure should be subject to a fine or penalty exceeding those
described in section 4913.151 of the Revised Code. As a result of
the hearing, the commission shall impose a fine or penalty at the
commission's discretion.
(B) There shall be a majority vote of the full committee,
with at least one of the commercial-excavator stakeholders voting
with the majority, for the committee to request a hearing under
division (A) of this section.
Sec. 4913.21. Except as provided in sections 4913.171 and
4913.19 of the Revised Code, the public utilities commission shall
impose every recommendation made under section 4913.15 or 4913.16
of the Revised Code by the underground technical committee.
Sec. 4913.22. A person subject to a fine imposed under
section 4913.171, 4913.19, or 4913.21 of the Revised Code or
division (C) of section 4913.16 of the Revised Code shall pay the
fine not later than sixty days after the fine or penalty is
imposed. A person subject to a penalty imposed under any of those
sections or that division shall begin compliance with the penalty
not later than thirty days after the penalty is imposed.
Sec. 4913.23. The public utilities commission shall notify
the complainant and the person responsible for the compliance
failure of any fine or penalty imposed under section 4913.171,
4913.19, or 4913.21 of the Revised Code or division (C) of section
4913.16 of the Revised Code, or of a dismissal under section
4913.15 or 4913.16 of the Revised Code. The notice shall include
all of the following, as applicable:
(A) The date of the compliance failure;
(B) The citation to the statute that was not complied with;
(C) A brief description of the compliance failure;
(D) The fine or penalty to be imposed, if any;
(E) Instructions on how to remit payment of a fine or to
comply with a penalty;
(F) Instructions on how the person may file for
reconsideration under section 4913.25 of the Revised Code and how
to make a timely filing;
(G) A statement that failure to file for reconsideration
under section 4913.25 of the Revised Code will make any findings
final and enforceable.
Sec. 4913.25. (A) If either the complainant or the person
responsible for the compliance failure disagrees with a finding
made by the underground technical committee under section 4913.15
or 4913.16 of the Revised Code, either person may, not later than
thirty days after receiving notice under section 4913.23 of the
Revised Code, file a written application with the public utilities
commission for reconsideration of the committee's finding. The
application for reconsideration must state with particularity the
grounds for reconsideration.
(B) Upon the filing of an application for reconsideration
under this section, the commission shall review the finding of the
committee.
(C) At the commission's sole discretion, the commission may
hold a hearing on the application for reconsideration.
(D) The commission shall affirm, reject, or modify the
finding of the committee and shall, at its sole discretion, impose
any fine or penalty authorized under this chapter. The person
responsible for the compliance failure shall pay any fine not
later than sixty days after the fine is assessed and shall begin
compliance with any penalty not later than thirty days after the
penalty is imposed.
Sec. 4913.27. (A) All hearings brought under this chapter
shall be conducted in a manner consistent with Chapter 4903. of
the Revised Code.
(B) The public utilities commission shall deposit all fines
collected under this chapter into the underground facilities
protection fund created under section 4913.29 of the Revised Code.
Sec. 4913.29. There is hereby created in the state treasury
the underground facilities protection fund. The fund shall consist
of all fines collected under this chapter. The fund shall retain
the interest earned. The amounts in the fund shall be used solely
to fund grants under section 4913.31 of the Revised Code.
Sec. 4913.31. (A) The public utilities commission may
administer an underground utility damage prevention grant program
to provide grants for any of the following purposes:
(1) Public awareness programs established by a protection
service;
(2) Training and education programs for excavators,
operators, designers, persons who locate underground utility
facilities, or other persons;
(3) Programs providing incentives for excavators, operators,
persons who locate underground utility facilities, or other
persons to reduce the number and severity of compliance failures.
(B) The commission shall determine the appropriate amount of
any grant issued under this section.
Sec. 4913.45. (A) The public utilities commission shall, in
coordination with the underground technical committee, adopt rules
regarding all of the following:
(1) Guidelines for consistent application of fines and
penalties under this chapter;
(2) Tracking compliance of persons on whom fines or penalties
have been imposed under this chapter;
(3) The required contents of the underground utility damage
prevention grant program established under section 4913.31 of the
Revised Code;
(4) The gathering, review, and acceptance of applications for
a grant under section 4913.31 of the Revised Code;
(5) The dispensation and tracking of money from the
underground utility damage prevention fund;
(6) The committee's duties, including rules that establish
the committee's operation, meeting schedule, and voting
procedures.
(B) The commission may adopt rules establishing the
following:
(1) Procedures for conducting inquiries under section 4913.09
of the Revised Code;
(2) Any other duties for the underground technical committee
pursuant to section 3781.36 of the Revised Code.
Sec. 4913.47. Notwithstanding any provision of the Revised
Code to the contrary, if a person is subject to more than one fine
for the same compliance failure, and one fine is imposed under
this chapter and one or more other fines are imposed under federal
law, rules, or regulations, the person shall not be required to
pay the fine imposed under this chapter.
Sec. 4913.50. Any proceeding held under this chapter or any
fine or penalty imposed under this chapter shall neither prevent
nor preempt the right of any party to obtain civil damages for
personal injury or property damage in a private cause of action.
No finding, determination, or recommendation of the underground
technical committee and no decision of the public utilities
commission shall be determinative of civil liability.
Sec. 4913.52. A person with a permit for excavation from the
state or a local governmental unit is subject to this chapter.
This chapter does not affect or impair local ordinances, charters,
or other provisions of law requiring permits to be obtained before
excavating.
Section 2. That existing section 3781.25 of the Revised Code
is hereby repealed.
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