130th Ohio General Assembly
The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.

S. B. No. 378  As Introduced
As Introduced

130th General Assembly
Regular Session
2013-2014
S. B. No. 378


Senator Coley 

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;
(4) The owner of a farm;
(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;
(3) Electric utilities;
(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;
(11) The general public;
(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.
Please send questions and comments to the Webmaster.
© 2017 Legislative Information Systems | Disclaimer