Chapter 4901:1-2 Protection of Underground Utility Facilities
As used within this chapter, these terms denote the following:
(B) "Commission" means the public utilities commission of Ohio.
(E) "Coordinator" shall be a full-time employee of the commission designated by the director of the service monitoring and enforcement department to assist the committee in the performance of its duties.
(F) "Days," when used to compute any period of time prescribed or allowed by these rules, shall not include the date of the act or event from which the designated period of time begins to run. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.
(G) "Designer," "developer," "excavation," "excavator," "one-call notification system," "person," "protection service," "underground utility facility," and "utility" shall have the same meanings as in section 3781.25 of the Revised Code.
(H) "Director" means the director of the commission's service monitoring and enforcement department or the director's designee.
(I) "Filing" means delivery, through paper filing, facsimile transmission (fax) filing, or electronic filing (e-file), to the commission's docketing division in accordance with rule 4901-1-02 of the Administrative Code.
(J) "Hearing" means all proceedings before the commission conducted in a manner consistent with Chapter 4903. of the Revised Code.
(K) "Participants" means the aggrieved person and the person responsible for the alleged compliance failure and any persons permitted to intervene after commencement of a proceeding.
(L) "Report of inquiry" is a document summarizing the investigation of a compliance failure and reporting on a fine, penalty, or no-penalty determination made by either the committee or the staff, when applicable.
(N) Staff" means those employees of the commission to whom responsibility has been delegated for administering the provisions of Chapter 4913. of the Revised Code, as applicable.
(O) "Violation" means any conduct, act, or failure to act, prohibited by Chapter 4913. of the Revised Code.
(B) This chapter establishes rules for the committee and for the protection of underground utility facilities pursuant to Chapter 4913. of the Revised Code.
(C) This chapter shall apply to all persons with duties and obligations under 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.
(D) The commission may, upon application or motion, waive any requirement of this chapter, other than a requirement mandated by statute, for good cause shown.
The committee shall do the following:
(A) Coordinate with the commission in carrying out its duties under Chapter 4913. of the Revised Code.
(E) Perform any additional duties as may be required under Chapter 4913. of the Revised Code.
(A) Members of the committee shall annually select a chairperson, vice chairperson, and secretary from among its members. The selection shall be made at the first meeting of each calendar year. The selection of the chairperson, vice chairperson, and secretary shall be those members receiving the most votes for those three positions by an absolute majority of the committee.
(B) Unless removed from office or replaced as a member of the committee, the term of office for the chairperson, vice chairperson, and secretary shall be until the first meeting of the committee held the following calendar year. The chairperson, vice chairperson, or secretary may be removed from office by an absolute majority vote of the committee at any regularly scheduled or special meeting.
(C) The chairperson of the committee shall preside over the meetings of the committee, schedule meetings of the committee, cause notice of the meetings to be emailed or, if individually requested, mailed to members of the committee, and perform such other duties as required to enable the members of the committee to perform their duties.
(D) The secretary of the committee shall record the minutes or designate another person to record the minutes subject to the secretary's review and approval of the meetings. A complete transcript of a meeting, except an executive session, may be substituted for the minutes. If the committee holds an executive session, the minutes or transcript shall state the matter to be considered in the session. A copy of the minutes or the transcript of each meeting shall be available for public inspection at the offices of the commission.
(E) If the chairperson has been removed from office or replaced as a member of the committee or has otherwise relinquished the position or is not present at a meeting, the vice chairperson shall assume the duties of the chairperson until such time as a chairperson is seated.
(F) If the committee is without a chairperson, vice chairperson, and secretary, the coordinator of the committee shall schedule a meeting of the committee and cause notice of the meeting to be sent to members of the committee upon receipt of a written request signed by at least two members of the committee.
(G) The coordinator shall work with the chairperson, vice chairperson, and secretary of the committee to ensure that notice of meetings occur, to gather and distribute to members of the committee copies of the report of each inquiry conducted pursuant to section 4913.09 of the Revised Code, and such other duties as requested by the chairperson, vice chairperson, or secretary of the committee.
(A) All meetings of the committee shall be open and accessible to the public. For the purpose of this rule, the term "meeting" shall mean any prearranged discussion of the public business of the committee by a majority of its members. Consistent with division (B) of section 3781.36 of the Revised Code, a majority of committee members constitutes a quorum.
(B) The committee may conduct meetings in person, by teleconference, or by video conference.
(C) 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.
(D) The committee may hold an executive session for the sole purpose of the consideration of a matter contained in division (G) of section 121.22 of the Revised Code. Such executive session may be held only at a regular or special meeting for which notice has been given in accordance with rule 4901:1-2-08 of the Administrative Code, and only after a majority of a quorum of the committee determines, by a roll call vote, to hold such a session.
(E) Meetings of the committee may be recessed for up to three business days.
(A) Each member of the committee shall have one vote.
(B) There shall be majority vote of the full committee, with at least one of the commercial-excavator members voting with the majority, for the committee to do any of the following:
(A) A regularly scheduled meeting is one in which members of the committee are informed of the meeting at least five days prior to the start of the meeting.
(B) A special meeting is one in which members are informed less than five days but more than twenty-four hours prior to the start of the meeting.
(C) An emergency meeting is one in which members are informed less than twenty-four hours prior to the start of the meeting.
(A) Any person may determine the time, place, and purpose of all upcoming regular, special, and emergency meetings of the committee by:
(1) Writing to the following address: "Underground Technical Committee Coordinator, Service Monitoring and Enforcement Department, Public Utilities Commission of Ohio, 180 East Broad Street, Columbus, Ohio 43215."
(2) Contacting the commission via telephone, 800-686-7826, during normal business hours.
(B) Any person may request to receive notice of the time, place, and purpose of all regularly scheduled, special, and emergency meetings of the committee by submitting a written request to: "Underground Technical Committee Coordinator, Service Monitoring and Enforcement Department, Public Utilities Commission of Ohio, 180 East Broad Street, Columbus, Ohio 43215." Requests shall include the name, address, telephone number, and email address of the person making the request.
(C) Notice of regularly scheduled meetings shall be emailed to those persons who have requested to receive notice not less than five days prior to the date of the meeting.
(D) If a special meeting of the committee is scheduled, notice of the meeting will be made by email no later than twenty-four hours prior to the special meeting. Such notice shall be complete once an email has been sent. Notice of special meetings shall be given to representatives of the news media who made request to receive notice.
(E) Members of the news media who wish to be notified of a special meeting or emergency meeting of the committee should indicate on their request that they are a member of the news media, the news agency that they represent, and a request to be notified when a special meeting or emergency meeting is scheduled. Notice of a special meeting or emergency meeting will only be given to one representative of any particular news agency.
(F) If an emergency meeting of the committee is scheduled, immediate notice of the meeting will be made by email or telephone to members of the news media who have requested notification. Calls will be made during the normal business hours of the commission. Such notice shall be complete if an email has been sent or if a telephone message has been left for the representative.
(G) The coordinator of the committee may request that persons verify in writing that they wish to remain on the list of persons to be notified of meetings of the committee.
(A) Each utility, excavator, developer, and designer who participates in the one-call notification system in the current or previous calendar year shall receive notice from the commission to pay a safety registration fee not to exceed fifty dollars annually, which the commission may lower if the commission determines lowering the registration to be necessary.
(B) To recognize compliance, the commission may charge a discounted safety registration fee to those registrants that have no fines or penalties assessed against them in the previous calendar year.
(C) The registration year shall be the calendar year and registration will be accomplished through payment by the due date of the invoice issued by the commission.
(E) The commission shall deposit all safety registrations and fines collected under this section in the underground facilities protection administrative fund created under section 4913.30 of the Revised Code.
During the investigation of an alleged compliance failure:
(A) Unless provided otherwise by this chapter, service upon the staff may be made by ordinary or certified United States mail, by courier service, by facsimile transmission, or by personal service upon the coordinator.
Service is effective upon receipt except that service by United States mail is complete upon mailing and service by facsimile transmission is complete upon transmission.
(B) Service upon the participants shall be made by ordinary or certified United States mail, by courier service, by facsimile transmission, by electronic mail, or by personal service. Service is effective upon receipt by any person, except that service by ordinary or certified United States mail is effective upon mailing and service by facsimile transmission or email is complete upon transmission. Service by email may be made only if the person to be served has consented to receive service by email. Service upon the participants by ordinary or certified United States mail shall be made at any of the following:
(1) If the participant is a natural person at the address listed on the inquiry report.
(2) If the participant is other than a natural person:
(a) If the participant has provided any information to the staff or to the committee, at the address indicated in this communication.
(b) If the participant wants to have notices or requests for inquiries served at a particular address, the participant may contact the commission and request service at such a specific address.
(c) If the participant is a business entity, and whose address is not otherwise disclosed, at any business address of the participant.
(C) Once a participant has filed a written application for reconsideration with the commission in accordance with section 4913.25 of the Revised Code, any further service shall be made in accordance with Chapter 4901-1 of the Administrative Code.
(A) An aggrieved person may request an inquiry with the staff. The request for inquiry must be made no later than ninety days after discovering the alleged compliance failure. A request for inquiry shall not, by itself, cause the creation of a formal proceeding at the commission. A request for inquiry shall state, at a minimum and with particularity:
(1) Name of the respondent.
(2) Date of the compliance failure.
(3) Nature of the compliance failure.
(4) Location of the compliance failure.
(5) Any other information that the requestor considers relevant.
(B) Not later than ten business days after receiving a request for inquiry, the staff shall notify the respondent that the request for inquiry was made.
(C) The respondent may respond to the request for inquiry by providing any information that the person considers relevant to the inquiry, including an admission of the compliance failure, not later than thirty days after being notified by the staff.
(D) The staff shall conduct an inquiry. The staff's investigation shall be limited to whether there was a compliance failure.
(E) A report of each inquiry will be made by the staff to the committee and to the participants. The report of inquiry should include all relevant material collected in the course of the proceeding including any documentary and photographic evidence which has been collected regarding the alleged violation. The report of inquiry should also include any information concerning past violations under sections 4913.151 and 4913.17 of the Revised Code and the various factors for consideration under section 4913.20 of the Revised Code. This report shall not contain a recommendation as to the imposition of a fine or penalty or as to whether any enforcement action should be taken except as provided in section 4913.16 of the Revised Code.
(F) The committee shall review every report of inquiry submitted to it by the staff and consider making a recommendation that a fine, a penalty, or a combination of fine and penalty be imposed or that no enforcement action be taken pursuant to section 4913.15, 4913.16, 4913.17, or 4913.19 of the Revised Code.
(G) The commission, the legal director, the deputy legal director, or an attorney examiner may issue subpoenas, upon the request of the staff or upon the request of the committee, to support the investigation of an inquiry. A subpoena shall command the person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command such person to produce the papers, documents, or other tangible things described therein. A subpoena issued under this rule shall be served by personal service or by certified United States mail and is effective upon receipt.
(H) The commission, the legal director, the deputy legal director, or an attorney examiner may, upon their own motion or upon motion of the person to whom the subpoena is directed, quash a subpoena if it is unlawful, unreasonable, or oppressive.
Five Year Review (FYR) Dates: 11/30/2020
Promulgated Under: 111.15
Statutory Authority: 4913.45
Rule Amplifies: 4913.05, 4913.07, 4913.09, 4913.13, 4913.13, 4913.15, 4913.16, 4913.17, 4913.19
In determining a fine or penalty recommendation or whether no enforcement action should be taken under section 4913.15, 4913.16, 4913.171, 4913.19, or 4913.25 of the Revised Code, the committee, the commission, and the staff, as applicable, shall consider the following factors, as they apply:
(A) The person's demonstrated history of one-call, design, and excavation practices, including the following:
(1) The number of locate requests received and responded to.
(2) The number of locates completed.
(3) The number of one calls placed.
(4) The number of excavations completed.
(5) The number of design or development projects.
(B) 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.
(C) The organizational size of the responsible person.
(D) The prospective effect of a fine on the person's ability to pay business obligations and otherwise conduct business.
(E) The history or number of compliance failures by the person based on information maintained by the coordinator.
(F) The good faith effort on the person's part in attempting to achieve compliance after the compliance failure was identified.
(A) Within ten business days of receiving from the committee either a recommendation to impose a fine or penalty or a determination that no enforcement action should be taken, the staff will serve upon the participants a letter notifying the participants of any fine or penalty or of a no-enforcement determination. Service of the letter is effective upon mailing by ordinary or certified United States mail. The letter shall include all of the following, as applicable:
(1) The date of the compliance failure.
(2) The citation to the statute that was not complied with.
(3) A brief description of the compliance failure.
(4) The fine or penalty to be imposed, if any.
(A) The respondent upon whom a letter has been served in accordance with paragraph (A) of rule 4901:1-2-13 of the Administrative Code who fails within sixty days to pay the fine or who fails to begin compliance with the penalty within thirty days after the letter shall be in default unless reconsideration in accordance with section 4913.25 of the Revised Code is requested. A person responsible for a compliance failure in default shall be deemed to have admitted the occurrence of the violation and waived all further right to contest liability under Chapter 4913. of the Revised Code for the fine or penalty set forth in the letter or to further contest the fine or penalty through a request for reconsideration.
(B) The attorney general, upon the written request of the commission, shall bring a civil action in the court of common pleas of Franklin county to collect a fine or enforce a penalty assessed under this section.
(A) Not later than thirty days after receiving notice under rule 4901:1-2-13 of the Administrative Code, either the person that requested the inquiry or the respondent may file a written application for reconsideration with the commission. The application for reconsideration must state with particularity the grounds for reconsideration.
(B) Any person opposing an application for reconsideration shall have fifteen days to file a memorandum contra with the commission.
(C) The staff shall have thirty days after the filing of the application for reconsideration to file a responsive pleading.
(D) In all other respects, the procedural requirements set forth in Chapter 4901-1 of the Administrative Code shall apply to the reconsideration proceeding before the commission.
(E) On reconsideration, the commission shall affirm, reject, or modify the finding of the committee and shall impose any fine or penalty authorized or take no enforcement action in accordance with section 4913.25 of the Revised Code.
Pursuant to section 4913.251 of the Revised Code, a reconsideration order issued under section 4913.25 of the Revised Code is subject to the rehearing and appeal process under Chapter 4903. of the Revised Code.
All hearings conducted by the commission under Chapter 4913. of the Revised Code and the process described in section 4913.251 of the Revised Code shall be conducted in a manner consistent with Chapter 4903. of the Revised Code.
Any fine shall be paid in a manner determined by the commission. Payment shall contain the identifying case number of the violation for which payment is tendered. Payment is complete upon receipt by the staff.
(A) The commission may administer an underground utility damage prevention grant program, subject to availability of funds, to provide grants for qualified purposes.
(1) Qualified purposes include:
(a) Public awareness programs established by a protection service.
(b) Training and education programs for excavators, operators, designers, persons who locate underground utility facilities, or other persons.
(c) Programs providing incentives for excavators, operators, persons who locate underground utility facilities, or other persons to reduce the number and severity of compliance failures.
(2) Grant funds will be awarded:
(a) At the discretion of the commission.
(b) After a review of all grant applications for the grant review period.
(c) As reimbursement for qualified expenses incurred after grant application approval.
In accordance with section 4913.43 of Revised Code, the commission shall submit to the general assembly an annual report regarding the activities of the commission and committee for the previous calendar year. The report shall include, but shall not be limited to:
(E) Accounting of funds received through enrollments, penalties, fines, and forfeitures.
(F) Accounting of funds distributed through the utility damage prevention grant program.
(G) The membership activities of the committee for the previous year.
(H) Any other pertinent information, excluding confidential information, the commission believes will be helpful to the general assembly in the review of this report.