Subject 515-9-4 ENFORCEMENT PROCEDURES UNDER THE GEORGIA UTILITY FACILITY PROTECTION ACT
The purpose and scope of these rules is to describe the enforcement authority and sanctions exercised by the Georgia Public Service Commission in carrying out its duty to enforce the provisions of the Georgia Utility Facility Protection Act (O.C.G.A. § 25-9-1et seq.). These rules also prescribe the procedures governing the exercise of that authority and imposition of those sanctions.
Terms used in these rules have the following meaning:
|(a)||"Act" means the Georgia Utility Facility Protection Act (O.C.G.A. § 25-9-1et seq.).|
|(b)||"Advisory committee" means the committee appointed by the Governor pursuant to O.C.G.A. 25-9-13(g)(1).|
|(c)||"Business days" means Monday through Friday, excluding the following holidays: New Year's Day, Birthday of Dr. Martin Luther King, Jr., Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the following Friday, Christmas Eve, and Christmas Day. Any such holiday that falls on a Saturday shall be observed on the preceding Friday. Any such holiday that falls on a Sunday shall be observed on the following Monday.|
|(d)||"Business hours" means the time from 7:00 A.M. to 4:30 P.M. local time on business days.|
|(e)||"Commission" means the Georgia Public Service Commission.|
|(f)||"Facility owner or operator" means any person or entity who owns, operates or controls the operation of a utility facility.|
|(g)||"Person" means an individual, firm, joint venture, partnership, association, municipality, state or other governmental unit, authority, department, agency, or a corporation and shall include any trustee, receiver, assignees, employee, agent or personal representative thereof.|
|(h)||"Utilities Protection Center" or "Center" means the corporation or other organization formed by facility owners or operators to provide a joint telephone number notification service for the purpose of receiving advance notification from persons planning to blast or excavate and distributing such notifications to its affected facility owner or operator members.|
|(i)||"Utility facility" means an underground or submerged conductor, pipe, or structure used in providing electric or communications service, or an underground or submerged pipe used in carrying, providing or gathering gas, oil, or oil products, sewage, wastewater, storm drainage, water or other liquids, and appurtenances thereto. This does not include utility facilities owned by a homeowner for service at the homeowner's residence.|
|(j)||O.C.G.A. § 25-9-3(17)defines "Large Project" as an excavation that involves more work to locate utility facilities than can reasonably be completed within the requirements of subsection (a) of O.C.G.A. Section 25-9-7. This requires a facility owner or operator to locate and mark its facilities within 48 hours beginning the next business day after receipt of a locate request by the Utilities Protection Center ("UPC"). For simplicity of administration by the Commission, a "large project" shall include at a minimum, any single mechanized excavation or blasting, as those terms are defined by O.C.G.A. § 25-9-3(12), at a contiguous geographical site or area that exceeds or will exceed one linear mile or that reasonably requires or will require more than ninety (90) days to complete. Nothing in this rule shall prohibit any person from requesting a large project ticket for any other project.|
The Georgia Legislature has empowered the Commission to enforce the provisions of the Act, and to promulgate any rules and regulations necessary to implement the Commission's authority to enforce the provisions of the Act.
|(1)||The Governor shall appoint an advisory committee to assist the Commission in the enforcement of the Act. The advisory committee shall perform such duties as may be assigned by the Commission from time to time.|
|(2)||The advisory committee shall develop and implement operating procedures to delineate the advisory committee's practices and procedures relative to the performance of the duties assigned by the Commission. The operating procedures developed by the advisory committee shall include, but not be limited to, procedures for review of probable violations of the Act. Such procedures, and any amendments or modifications thereto, shall not become effective until they have been approved by the Commission. (3) If deemed necessary, the advisory committee shall establish one or more subcommittees of experts in the operations covered by the Act. These subcommittees shall assist the advisory committee in performing its assigned duties.|
|(1)||Any person may report a probable violation of the Act by filing a written or an electronic report in a form as may be designated by the Commission from time to time; provided that all such reports shall be filed electronically whenever and wherever possible, but a written report may be filed by any person lacking computer reporting or communication capability. All written or electronic reports shall include the information requested on an approved Commission form, if available. All probable violations shall be reported to the Commission within thirty (30) days of a person becoming aware of the circumstances constituting the probable violation.|
|(2)||A person shall file such written report directly with the Commission. The Commission shall maintain, or cause to be maintained, a database of all written reports filed with the Commission.|
|(3)||Any person who files a written or electronic report shall conduct an investigation to examine the relevant facts regarding the reported probable violation of the Act. The results of such investigation shall be filed together with the report in accordance with these rules.|
|(4)||Each facility owner or operator whose utility facilities have been damaged as a result of a probable violation of the Act shall conduct an investigation to examine the relevant facts regarding such probable violation, and provide the Commission or its designee with the results of such investigation. The results of such investigation shall be submitted to the Commission on a form designated by the Commission.|
Whenever the Commission Staff ("Staff") becomes aware of a probable violation of the Act by means of a written or an electronic report or otherwise, the Staff shall conduct an investigation to examine all the relevant facts regarding the probable violation. The investigation may include, among other factors, records verification, informal meetings, teleconferences, and photo documentation. Responses to reports of probable violations may be provided to the Commission in writing, by phone, fax, e-mail, or in person.
The Advisory Committee shall meet on a periodic basis to review contested probable violations of the Act and the Staff's finding and recommendations relative to such probable violations. Following such review, the Advisory Committee shall make its recommendations for review by the Commission, together with any recommendations of the Staff, regarding resolution of such contested probable violations.
Upon a determination that a violation of the Act may have occurred, the Commission Staff shall take one or more of the following actions:
|(1)||Enter settlement negotiations with the Respondent. Upon reaching agreement on settlement terms, the Commission Staff shall present the proposed settlement to the Commission for acceptance or rejection. If the Commission Staff and the Respondent are unable to reach agreement on settlement terms, the Respondent may present additional facts to the Advisory Committee;|
|(2)||Request that the Commission issue a Rule Nisi pursuant to Commission Rules.|
|(1)||The Commission may accept or reject a proposed settlement to resolve probable violations of the Act. If the Commission rejects a proposed settlement, a hearing may be scheduled to receive evidence and take appropriate enforcement action as provided by Commission Rule.|
|(2)||If the Commission finds, after a hearing, that a violation of the Act has occurred, it may impose a civil penalty as provided by O.C.G.A. § 25-9-13.|
|(1)||In determining the amount of any civil penalty to be assessed, the Commission may consider the nature, circumstances and gravity of the violation of the Act; the degree of the Respondent's culpability; the Respondent's history of prior violations of the Act; and such other factors as may be appropriate.|
|(2)||A Respondent shall pay any civil penalty that has been assessed by submitting to the Commission, in care of Case Manager, Utility Facility Protection Section, a certified check payable to the Georgia Public Service Commission for ultimate forwarding to the State of Georgia general fund.|
For the purpose of this rule and the assessment and enforcement of civil penalties under this Chapter 515-9-4 of the Commission's Utility Rules, the following definitions apply:
|(2)|| Enforcement Procedures for Violations of
the Act by Local Governing Authorities.
|(3)|| Tiered Structure To Be Utilized in
Assessing Civil Penalties against Local Governing Authorities for Violations of
|(4)|| Commission Discretion in
Assessing Civil Penalties against Local Governing Authorities.
Nothing set forth elsewhere in this Rule shall require the Commission or its investigators to assess civil penalties against a local governing for violations of the Act or the Commission's Utility Rules. Under each penalty tier, the investigator may recommend training. If the investigator finds that a probable violation has occurred, the investigator may recommend training in lieu of all or any portion of any otherwise recommended civil penalties for any local governing authority's violation. The investigator shall provide suggestions for corrective action to any person requesting such assistance on behalf of a local governing Upon determination after investigation, the Commission's investigator may, subject to Commission review and approval, make recommended offers of settlement to the respondent or make recommended findings for assessment of civil penalties or other corrective action, subject to respondent's right to hearing thereon before the Advisory Committee and/or the Commission.
Any person subject to an order from the Commission may petition the Commission for reconsideration of the order under Rule 515-2-1-.08 of the Commission's Rules of Practice and Procedure. Moreover, any person aggrieved by an order of the Commission may seek relief pursuant to O.C.G.A. Chapter 50-13.
|(1)|| Purpose and Scope:
|(3)||The excavator and facility owner(s)/operator(s) or LOCATOR(S)/UTILITY(S) shall enter into a negotiated written agreement setting out the schedule for marking the project (see attached example form) at the Large Project planning meeting. Steps shall be taken to work together, including the Large Project Planning Meeting, so that a negotiated marking plan may be agreed upon allowing the facility owner(s)/operator(s) to locate the utility facilities at a time reasonably in advance of the actual start of excavation or blasting for each phase of the work. A working relationship shall be established between the excavator and the facility owner/operator representatives to reduce confusion at the work site. Emergency phone numbers and contact people shall be identified for notification of problems, delays or changes in the marking plan. In addition to the Large Project Planning Meeting, the excavator shall conduct periodic utility coordination meetings to enhance the communication and progress of the planned schedule and markings. IF FOR ANY REASON A FACILITY OWNER/OPERATOR CANNOT ATTEND SUCH MEETING, THE FACILITY OWNER/OPERATOR'S REPRESENTATIVE MAY CONTACT THE EXCAVATOR AND MAKE OTHER ARRANGEMENTS IF THE EXCAVATOR IS AGREEABLE, OR HAVE THE LINES MARKED WITHIN THE 48 HOURS REQUIRED BY LAW (O.C.G.A. § 25-9-1ET SEQ.).|
|(4)||The terms and conditions of such negotiated marking agreement must be in writing, and executed by the excavator and the facility owner/operator or locate representative (i.e. contract LOCATOR/UTILITY for the facility owner/operator) before excavation commences. If the LOCATOR/UTILITY is going to execute the negotiated marking agreement on behalf of the facility owner/operator, the facility owner/operator shall have on file with the UPC, written documentation of such grant of authority from the facility owner/operator to the LOCATOR/UTILITY. Such negotiated marking agreement and compliance with the terms thereof, shall constitute an exemption from the requirements of subsections O.C.G.A. §§ 25-9-7(a)(1),(b)(1),(c),(e) and (k)(1) and subsections O.C.G.A. §§ 25-9-6(c),(e) and (h). The excavator and facility owner/operator shall each retain a copy of the executed marking agreement.|
|(5)||If the facility owner/operator fails to respond to the excavator's terms of the negotiated marking agreement or the facility owner/operator notifies the excavator that the facilities cannot be marked within the time frame delineated within the negotiated marking agreement and a mutually agreeable date for marking cannot be reached, the excavator may attempt to locate the facilities in accordance with subsection O.C.G.A. § 25-9-7(f), then proceed with excavation or blasting provided reasonable care is exercised. At the option of the excavator and as an alternative to the excavator's attempting to locate the facilities at issue, such facilities shall revert back to the locate time-frame mandated by O.C.G.A. § 25-9-7.|
|(6)||Failure of any party to abide by the terms of the negotiated marking agreement shall be a violation of the Commission's Large Project Rule delineated herein. Any such violation shall be grounds for and may result in sanctions including but not limited to civil and/or criminal penalties being imposed upon the violating party in accordance with Georgia Law. Moreover, where an excavator fails to abide by the terms of the negotiated marking agreement and causes damage to a utility facility as a result, the excavator may be subject to penalties delineated in O.C.G.A. § 25-9-13(7).|
|(7)||Good Faith Negotiation Required. The failure of any party to negotiate in good faith shall constitute a violation of the Commission's Large Project Rules and may result in the imposition of penalties under O.C.G.A. §§ 25-9-13 and/or 46-2-91 as well as any other penalties that may be imposed pursuant to Georgia Law or the Commission's Rules. The failure of any party to negotiate in good faith shall also result in all locates being performed in accordance with the procedures and timelines set forth in O.C.G.A. § 25-9-1et. seq. with the cost for all such locates to be paid for by the party having negotiated in bad faith.|
|(8)||Any person holding an active large project ticket may allow any dually authorized subcontractors to work under such large project ticket provided the provisions of O.C.G.A. § 25-9-6(g)are met. For purposes of this rule, any contractual agreement entered into pursuant to O.C.G.A. § 25-9-6(g)shall be in writing.|
|(9)||Nothing in this Rule exempts any facility owner/operator, excavator, LOCATOR/UTILITY or any other person from the duty he or she would otherwise have under GUFPA or the Commission's Utility Rules to report damages to buried utility facilities.|
Large Project - Sample Utility Facility Locating Agreement
THIS AGREEMENT, made this___________________________ (month/date/year), by and between______________________, hereinafter called the EXCAVATOR, and ___________________, hereinafter called the LOCATOR/UTILITY: Due to the construction of this large project, it will become necessary to make certain arrangements for the locating of the utility facilities in accordance with the Georgia Public Service Commission's Rule 515-9-4.
This Agreement is for the sole purpose of each party working together to minimize or eliminate any damages to utility facilities as well as allow the EXCAVATOR to pursue the work more expeditiously.
In consideration of the premises and the mutual covenants of the parties hereinafter set forth, it is agreed:
1. The LOCATOR/UTILITY shall provide the EXCAVATOR with correct contact information, including but not limited to, business address, business phone numbers, business facsimile numbers and any available pager or cellular numbers for all available locate technicians/representatives and their supervisors for this project at the time of executing this Agreement.
2. Attached and made part of this agreement is the negotiated marking plan, which is prepared by the EXCAVATOR. Any modifications or changes to the negotiated marking plan shall be reviewed and agreed to by both parties.
3. It is specifically understood that the EXCAVATOR will notify the LOCATOR/UTILITY by telephone, electronic mail or other means as provided by the LOCATOR/UTILITY prior to commencing any excavation activities to ensure the specific work sites have been marked.
4. If EXCAVATOR needs to move to a project work site involving excavation that has not been marked by the LOCATOR/UTILITY or the LOCATOR/UTILITY has not confirmed the accuracy of the existing marks at such site, the EXCAVATOR shall make contact with the LOCATOR/UTILITY and allow time to respond.
5. The LOCATOR/UTILITY shall be available within 24 hours and shall respond within such time frame in order for the work site to be marked or confirm the accuracy of the existing marks.
6. If for any reason, the negotiated marking agreement is terminated, the Large Project Procedures under the Georgia Public Service Commission's Rule 515-9-4 are hereby waived and the provisions of the Official Code of Georgia, Annotated Section 25-9-1et. seq. shall continue in full force and effect.
LOCATOR/UTILITY Name (print):__________________________
EXCAVATOR Name (print):________________________
(insert date on page one of the agreement)
|(2)||Facility Marking by or for