DE 98-021 C.R. THOMPSON TRUCKING Show Cause Hearing On Violation of Underground Utility Damage Prevention Program Order Affirming Violation and Assessing Penalty O R D E R N O. 22,925 May 12, 1998 APPEARANCES: Kathleen Dumaine on behalf of Bell Atlantic; Terry Sylvester on behalf of On Target; and Richard G. Marini, P.E., for the Staff of the New Hampshire Public Utilities Commission. I. PROCEDURAL HISTORY On November 18, 1997, NYNEX (now Bell Atlantic), in accordance with New Hampshire Public Utilities Commission (NHPUC) Chapter Puc 800 Underground Utility Damage Prevention Program, Puc 803.02(e), reported damage to underground facilities on Daniels St. in Portsmouth, N.H. The report alleged that on July 9, 1997, C.R. Thompson Trucking (C.R. Thompson) bent and pierced a 600-pair pressurized lead cable that was clearly marked. On November 25, 1997, the NHPUC Safety Division (Division), pursuant to Puc 805.01, issued a Notice of Probable Violation (NOPV) No. 97042, which stated, in part, that there was reason to believe that C.R. Thompson caused damage within the boundaries of marked facilities which would constitute a violation of RSA 374:55,IV-a. The notice was sent certified mail, to C.R. Thompson Trucking, P.O. Box 446, Greenland, N.H. 03804. The NOPV was received on December 8, 1997. Pursuant to NHPUC Part Puc 805.02, C.R. Thompson had 30 days to respond to the NOPV. C.R. Thompson failed to respond. On January 21, 1998, based on the lack of response, and in accordance with Puc 805.03(a), the Division issued Notice Of Violation (NOV) No. 97042V by certified mail. The NOV stated that C.R. Thompson was found in violation of RSA 374:55,IV-a, subject to a civil penalty of $100.00, and that payment must be made within 10 days of the receipt of notice. The NOV was received on January 23, 1998. C.R. Thompson failed to respond. On March 9, 1998, the Commission issued Order No. 22,862 ordering C.R. Thompson to appear at a hearing on March 27, 1998 to show cause why C.R. Thomson should not be held liable for penalties assessed, expenses incurred, and whether additional penalties should be imposed. II. POSITIONS OF THE PARTIES AND STAFF A. C.R. Thompson Trucking C.R. Thompson failed to appear at the hearing. B. Bell Atlantic The witness for Bell Atlantic, Kathleen Dumaine, testified that during the course of routine pressure testing of telephone cables, Bell Atlantic discovered an air leak in a pressurized cable in the vicinity of manhole 5 on Daniel St. in Portsmouth, N.H. Ms. Dumaine explained that through additional investigation, Bell Atlantic determined that a Dig-Safe ticket had been issued for that location to Knight's Plumbing and Heating and that C.R. Thompson performed the excavation. Ms. Dumaine stated that damage had occurred to a 600-pair lead cable and creosote duct which required significant repair in the amount of $8,208.81. Ms. Dumaine noted that according to records the area was marked and that the marks were still visible at the time of repair. She also testified that the area had been backfilled with unsuitable material. C. On Target Terry Sylvester, representing On Target, testified that his organization has a contract with Bell Atlantic to perform locating services with respect to Dig-Safe requests. Mr. Sylvester indicated that a representative of his organization responded to a Dig-Safe request at Daniel's St., in Portsmouth, N.H. (Exhibit 2), located underground telephone facilities, and utilized the corridor marking method to mark the facilities with orange paint. Mr. Sylvester noted that exhibit 2 indicated that a Bell Atlantic representative involved with the repair noted that the damage had occurred within the visible marks. D. Staff Richard G. Marini, P.E., Administrator of the Commission's Gas Safety Division, described the actions taken by the Safety Division in processing the violation and provided copies of all correspondence pertinent to the case. (Exhibit 1). Mr. Marini noted that the appropriate documents had been sent certified mail and that representatives of C.R. Thompson had in fact received and signed for the documents. Mr. Marini recommended that C.R. Thompson be assessed civil penalties and reimburse Bell Atlantic for damages in the amount of $8,208.81. III. COMMISSION ANALYSIS Based on the evidence submitted, and the failure of C.R. Thompson to attend the hearing, it is evident that C.R. Thompson has shown a complete disregard for the New Hampshire Underground Utility Damage Prevention Statute, RSA 374:48 et al., and the NHPUC Code Of Administrative Rules Part Puc 800. Upon thorough review of the testimony and exhibits, we find that C.R. Thompson damaged marked underground facilities and pursuant to RSA 374:55,IV-a is subject to a civil penalty of $500.00, and liable for damages in the amount of $8,208.81. In addition, C.R. Thompson failed to notify Bell Atlantic that it had damaged the facilities and backfilled without permission. This action constitutes a violation of RSA 374:54 and pursuant to RSA 374:55,IV-b, C.R. Thompson is subject to an additional civil penalty of $500.00. Based upon the foregoing, it is hereby ORDERED, that C.R. Thompson Trucking remit the amount of $1000.00 via certified check or money order payable to the State of New Hampshire and delivered to the New Hampshire Public Utilities Commission, 8 Old Suncook Road, Concord, N.H. 03301-7319; and it is FURTHER ORDERED, that C.R. Thompson Trucking, reimburse Bell Atlantic for damages incurred in the amount of $8,208.81; and it is FURTHER ORDERED, that the payments noted above shall be received no later than May 29, 1998; By order of the Public Utilities Commission of New Hampshire this twelfth day of May, 1998. Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger Chairman Commissioner Commissioner Attested by: Thomas B. Getz Executive Director and Secretary