DE 98-228
R. M. PIPER INC.
Hearing On Violation of Underground Utility
Damage Prevention Program
Order Approving Consent Agreement
O R D E R N O. 23,159
March 9, 1999
Appearances: Richard M. Piper of R. M. Piper, Inc. and
Larry Eckhaus, Esq. for the Staff of the New Hampshire Public
Utilities Commission.
On October 14, 1998, EnergyNorth Natural Gas, Inc.
(ENGI), in accordance with N.H. Admin. Rules, Puc 803.02(e),
reported damage to underground facilities at 991 Mammoth Rd. and
721 Mammoth Rd. in Manchester, N.H. The report alleged that on
September 9, 1998, and September 11, 1998 R. M. Piper, Inc.,
(Piper), hit 60 PSIG plastic and copper services, respectively,
that were clearly marked.
On November 4, 1998, the New Hampshire Public Utilities
Commission Staff (Staff), pursuant to Puc 805.01, issued Notices
of Probable Violation (NOPV) Nos. 98060 and 98061, referencing
RSA 374:55, IV-a, by certified mail, to Piper. The NOPVs were
received on November 5, 1998. Pursuant to NHPUC Part Puc 805.02,
the Respondent had 30 days to respond to the NOPVs.
By letter dated November 9, 1998, Piper requested an
informal conference. This informal conference was held on
December 8, 1998. Both Piper and ENGI were present and after
hearing information from the parties, an agreement was accepted
by Staff to rescind NOPV 98060, contingent upon Piper's holding a
training session with its employees regarding the Underground
Utility Damage Prevention Program, and that a Notice of Violation
(NOV) would be issued on 98061 and that the fine of $200.00 would
be paid by the Respondent. The NOV for 98061 was sent on
December 9, 1998 and received by Respondent on December 10, 1998.
Nevertheless, the Respondent requested a hearing before the
Commission by letter dated December 16, 1998.
A hearing was held on February 9, 1999 before a
Hearings Examiner. Mr. Piper admitted that he caused the damage
alleged in the NOPVs, but testified that, in his opinion, the gas
service line was too shallow and that should mitigate the fine
proposed by Staff with regard to NOPV No. 98061. Mr. Piper
admitted that he did not utilize equipment and procedures in the
tolerance zone around the facility marking that would ensure the
facility would not sustain damage as required by Puc 806.01(g).
Richard G. Marini, P.E., the Safety Division
Administrator testified that the Underground Utility Damage
Prevention Program is "depth-blind" requiring certain procedures
within a tolerance zone equal to 36 inches plus the width of the
underground facility, Puc 806.01(a)(2), regardless of depth.
According to Mr. Marini, these violations occurring so closely
together in both time and location warrant the fines that were
proposed.
After the hearing, Staff and Piper agreed to a Consent
Agreement which was subsequently executed on February 23, 1999.
That Agreement provided for, inter alia, that a violation of New
Hampshire statutes occurred as described in the Notices of
Probable Violation No. 98060 and 98061, both dated November 4,
1998; that with regard to NOPV 98060, Piper shall hold a training
session to be attended by all its employees regarding the
Underground Utility Damage Prevention Program; and that a civil
penalty of $200 would be paid by Piper regarding NOV 98061.
The Commission approves the Consent Agreement. RSA
374:55,IV-b provides
If marked underground facilities are damaged, the
excavator shall be subject to a civil penalty of up to
$500 and liable for the cost of repairs for the damage.
Because underground utility mains and lines are at various depths
which may change over time for many reasons, the Underground
Utility Damage Prevention Program is "depth-blind" requiring
certain procedures within a tolerance zone. Puc 806.01(g)
specifically mentions hand shoveling and vacuum excavation as the
type of methods which could be used to ensure the facilities are
not damaged. In this instance, it is clear that Piper did not
utilize the appropriate procedures and, hence, is liable under
the statute. Although a fine of up to $500 could have been
assessed, the Commission believes that, under the circumstances,
the agreed to penalty, along with the training session is
sufficient. However, further violations may result in larger
fines in the future.
Based upon the foregoing, it is hereby
ORDERED, that the Consent Agreement entered into by
Staff and R.M. Piper is hereby approved; and it is
FURTHER ORDERED, that with regard to NOPV 98060, R.M.
Piper, Inc. shall hold a training session to be attended by all
its employees regarding the Underground Utility Damage Prevention
Program; and it is
FURTHER ORDERED, that a civil penalty of $200 is
imposed on R.M. Piper for NOPV 98061; and it is
FURTHER ORDERED, that R.M. Piper shall be liable to
EnergyNorth for the cost of repairs for the damage to utility
facilities referenced in both NOPV 98060 and NOPV 98061.
By order of the Public Utilities Commission of New
Hampshire this ninth day of March, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary