New York Protection of Underground Facilities Update

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STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

At a session of the Public Service

Commission held in the City of

COMMISSIONERS PRESENT:

MEMORANDUM AND RESOLUTION

ADOPTING AMENDMENTS TO 16 NYCRR PART 753

(Issued December 20, 2011 and Effective January 4, 2012)

BY THE COMMISSION:

INTRODUCTION

On October 4, 2011, we issued a Notice of Proposed Consensus Rulemaking (NPCR) concerning proposed amendments to 16 NYCRR, proposed amendments to Chapter VII, Subchapter F, Part 753 - Protection of Underground Facilities. The intent of the proposed changes is to allow the implementation of a system called Automated Positive Response (APR) and other minor technical changes and clarifications. The purpose of the APR is to facilitate through a central information repository, the process by which utility operators respond to excavators to advise them of whether underground facilities are present within a proposed excavation site.

One minor change is to require the use of 911 during an emergency instead of requiring the excavator to make two separate calls; one to the police department and one to the fire department. Additionally, the uniform color code is being revised to conform to American Public Works Association (APWA) uniform color code for marking excavation sites and underground facilities. This uniform color code is referenced by the Common Ground Alliance (CGA) Best Practices.

The clarification being made is that one or more of the alternative means of designating the location of buried facilities will be acceptable if mutually agreed to by both the operator and excavator, rather than all the listed means in Section 753-4.6(c)(3).

The amendments were noticed as a consensus rulemaking because no objections were expected. A NPCR was published in the State Register in accordance with the State Administrative Procedure Act §201(1), and the comment period expired on December 3, 2011. Only comments in support of the proposed amendments were received.

SEQRA REVIEW

We have reviewed the proposed regulations pursuant to the State Environmental Quality Review Act and its implementing regulations and find that they are Type II actions (those previously determined not to have a significant adverse impact on the environment) within the meaning of 16 NYCRR Section 7.2(b)(5).

CONCLUSION

Having considered the comments received concerning the proposed amendments to 16 NYCRR Part 753, we will adopt the amendments as shown in the attached Resolution.

  By the Commission,

  JACLYN A. BRILLING

Secretary

STATE OF NEW YORK

PUBLIC SERVICE COMMISSION

RESOLUTION BY THE COMMISSION

Statutory Authority

Public Service Law, Section 66

Case 10-M-0466 - In the Matter of the Rules and Regulations of the Public Service Commission contained in 16 NYCRR, proposed amendments to Chapter VII, Subchapter F, Part 753 - Protection of Underground Facilities.

At a Session of the Public Service Commission held in the City of Albany on December 14, 2011, the Commission, by vote of its members present

RESOLVED:

1. That the provisions of Section 202(1) of the State Administrative Procedure Act and Section 101-a (2) of the Executive Law having been complied with, Title 16 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended, effective upon publication of a Notice of Adoption in the State Register, by revising Chapter VII, Subchapter F, Part 753 - Protection of Underground Facilities; by amending Sections 753-1.2, 753-3.3, 753-3.14, 753-4.5, 753-4.6, 753-4.7 and 753-5.3 to read as follows (underscoring indicates new material, brackets indicate deletions):

SUBCHAPTER F - Miscellaneous.

PART 753

PROTECTION OF UNDERGROUND FACILITIES

(Statutory Authority: Public Service Law §119-b and

General Business Law Article 36)

753-1.2 Definitions.

(a) Automated Positive Response (APR) system: a system established by the one-call notification system to furnish a single point of contact between member operators and excavators for the purpose of communicating the status of an excavation location request as provided by the member operators.

(b) Commission: The Public Service Commission

([b]c) Contact: Any defacing, scraping, impact upon an underground facility or its protective coating, housing or other protective device.

([c]d) Damage: Any destruction or severance of any underground facility or its protective coating, housing or other protective device or any displacement of or removal of support from any underground facility which would necessitate repair of such facility.

([d]e) Department: The Department of Public Service.

([e]f) Demolition: The total or partial wrecking, razing, rending, moving or removal of any structure.

([f]g) Enforcement proceeding: A proceeding by the Commission to determine a penalty under the authority of §119-(b)(8) of the Public Service Law.

([g]h) Emergency: Any abnormal condition which presents an immediate danger to life or property including the discontinuance of a vital utility service necessary for the maintenance of public health, safety and welfare.

([h]i) Excavation: Any operation for the purpose of movement or removal of earth, rock, pavement or other materials in or on the ground by use of mechanized equipment or by blasting, including but not limited to, digging, auguring, backfilling, boring, drilling, grading, plowing in, pulling in, fence post or pile driving, tree root removal, saw cutting, jack hammering, trenching and tunneling; provided, however, that the following shall not be deemed excavation:

(1) movement of earth by tools manipulated only by human or animal power;

(2) the tilling of soil for agricultural purposes;

(3) vacuum excavation; and

(4) saw cutting and jack hammering in connection with pavement restoration of a previous excavation where only the pavement is involved.

([i]j) Excavator: Any person who is engaged in a trade or business which includes the carrying out of excavation or demolition; provided, however, that an individual employed by an excavator and having no supervisory authority other than the routine direction of employees over an excavation or demolition, shall not be deemed an excavator for the purpose of this Part. The act of any employee or agent of any excavator acting within the scope of his or her official duties or employment shall be deemed to be the act of such excavator.

([j]k) Field Citation: A written statement issued pursuant to subdivision 753-6.2 of this Part by an employee of the Department informing a Respondent that, in the judgment of the employee, a violation has occurred and setting forth the specific provisions allegedly violated by Respondent.

([k]l) Hand dug test holes: Excavations performed for designating, testing or verification purposes which are dug by the use of hand-held tools utilizing only human power. The use of vacuum excavation techniques are acceptable means of exposing underground facilities.

([l]m) Local governing body: A town, village or city outside the city of New York or a county within the city of New York.

([m]n) Near: An area within 15 feet of the outside perimeter or diameter of an underground facility or its encasement.

([n]o) Notice of probable violation (NOPV): A written statement or letter from the Department, containing the items specified by subdivision 753-6.4(b) of this Part, to a Respondent informing him or her that an enforcement proceeding is being initiated.

([o]p) One-call notification system: Any organization among whose purposes is establishing and carrying out procedures to protect underground facilities from damage due to excavation and demolition, including but not limited to, receiving notices of intent to perform excavation and demolition and transmitting the notices to one or more member operators of underground facilities in the specified area.

([p]q) Operator: Any person who operates an underground facility to furnish any of the following services or materials: electricity, gases, steam, liquid petroleum products, telephone or telegraph communications, cable television, sewage removal, traffic control systems, or water.

([q]r) Person: Any individual, firm, corporation, association or partnership, cooperative association, joint venture, joint stock association, business trust, their lessees, trustees or receivers, municipality, governmental unit or public authority whether or not incorporated.

([r]s) Powered equipment: Any equipment energized by an engine or motor and used in excavation or demolition work.

([s]t) Respondent: A person who the Department has served a field citation, warning letter or Notice of Probable Violation.

([t]u) Tolerance zone: If the diameter of the underground facility is known, the distance of one-half of the known diameter plus two feet, on either side of the designated center line or, if the diameter of the underground facility is not known, two feet on either side of the designated center line.

([u]v) Underground facility: A facility and its attachments located underground and installed by an operator to furnish its services or materials, including but not limited to, pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels and any encasement containing such facilities. Such term shall not include oil and gas production and gathering pipeline systems used primarily to collect oil or gas production from wells.

([v]w) Warning Letter: A written letter from the Department to a Respondent, pursuant to subdivision 753-6.3 of this Part, informing a Respondent that an alleged violation of a specific provision(s) of Part 753 has occurred or is continuing, advising the Respondent to correct it, if it is correctable, and to comply henceforth or be subject to enforcement proceedings under this Part.

([w]x) Work area: The area of the ground or equivalent surface which will be disturbed or removed by excavation work or affected by demolition work.

([x]y) Working days: Mondays through Fridays, exclusive of public holidays. The public holidays observed by the State of New York are as follows:

If the holiday occurs on a Saturday, it will be observed the Friday before. If the holiday occurs on a Sunday, it will be observed the Monday after.

753-3.3 Commencement of excavation or demolition.

(a) The excavator may proceed with excavation or demolition on the stated date of commencement if, prior thereto, he or she has received notification from each and every operator notified by the one-call notification system that:

(1) Such operator has no underground facility located in or within 15 feet of the work area; or

(2) That any underground facility located in or within 15 feet of the work area has been staked, marked or otherwise designated in accordance with the provisions of Subpart 753-4 of this Part.

(b) The excavator shall not commence the excavation or demolition on the stated commencement date if he or she has been notified by an operator that the staking, marking or other designations of an underground facility located in or within 15 feet of the proposed work area will not be completed on the stated commencement date. In such case, the operator is required promptly to report such fact to the excavator and to inform the excavator of a prompt and practicable completion date, which in no case shall be more than two working days after the excavator's stated commencement date, unless a longer period is agreed to by both parties.

(c) The excavator may proceed with excavation or demolition prior to the stated date of commencement once he or she has received notification from each and every operator notified by the one-call notification system that each operator has no underground facilities located in or within 15 feet of the work area.

(d) Where available through the one-call notification system, the excavator shall utilize the Automated Positive Response (APR) system in order to obtain the response(s) of the operators that were notified by the one-call notification system.

753-3.14 Emergency requirements.

In the event of an emergency involving danger to life, health or property as a result of damage to an underground facility containing gas or liquid petroleum products or as a result of an electrical short or escape of gas or hazardous fluids, the excavator shall:

(a) Proceed to evacuate his or her employees and all other endangered persons from the immediate vicinity to the best of his or her ability;

(b) Immediately notify [the local police and fire departments]911 and the operator of the affected facility of the exact location, nature of the emergency and of the underground facility which is affected.

753-4.5 Operator’s response to notice

(a) Prior to the stated commencement date of the excavation or demolition work as stated in the recorded notice, the operator shall make a reasonable attempt to inform the excavator[ directly], by means of an Automated Positive Response (APR) system, where available, or by means of direct communications with the excavator, where APR is not available, that either:

(1) The operator has no underground facility in or within 15 feet of the work area; or

(2) Every underground facility belonging to him or her which is located in or within 15 feet of the work area has been staked, marked or otherwise designated in accordance with the provisions of this Subpart.

(b) Where an operator cannot complete the staking, marking or other designation of an underground facility prior to the stated commencement date and time of the excavation or demolition, the operator shall promptly report such fact to the excavator and shall inform the excavator of a prompt and practicable completion date which in no case shall be more than two working days after the excavator's stated commencement date, unless a longer period is agreed to by both parties.

(c) Whenever an excavator requests a review of any staking, marking or other designation, the operator shall comply with such request as soon as possible.

753-4.6 Locating underground facilities.

(a) Whenever an operator's underground facilities are in or within 15 feet of a work area, such facility shall be located, accurately and with due care, by means of staking, marking or other designation in accordance with the provisions of this Subpart.

(b) The following staking and marking requirements shall apply:

(1) Stakes or surface markings shall be provided preferably at the center line of the underground facility and at such sufficient intervals as is necessary to indicate clearly the location and direction of run of such underground facility.

(2) All stakes and surface markings shall be color coded in accordance with the provisions of this Subpart in order to identify the type of underground facility so staked or marked.

(3) Stakes and surface markings shall indicate in inches the size or diameter of the underground facility or its encasement, if known.

(4) Each stake and surface marking shall indicate in inches the depth of the underground facility at that point, if known.

(5) Surface markings shall consist of paint, dye or equivalent material which is color coded in accordance with the provisions of this Subpart and which contrasts with the ground or equivalent surface.

(6) Where conditions exist so as to render center line staking or marking impractical or confusing, the operator may indicate the location of an underground facility by means of offset staking or remote tie-in markings which will clearly indicate the location and direction of run of the facility.

(c) If staking or marking are not used to indicate the location of an underground facility, the operator shall designate such location in accordance with the following:

(1) By exposing the underground facility or its encasement to view within the work area in a manner sufficient to allow the excavator to verify the type, size, direction of run and depth of the facility;

(2) By providing field representation and instruction to the excavator in the work area; or

(3) By any other means as mutually agreed to by the operator and excavator, including but not limited to written descriptions, photographs [and]or verbal instructions. Such agreement shall be provided in writing to the excavator upon his or her request

(d) An operator, or its agents or contractors, performing excavation or demolition work at or near his or her own underground facility shall not be required to stake, mark or otherwise designate such underground facility.

753-4.7 Uniform color code.

The following uniform color code shall be utilized for staking and marking used to designate the location of underground facilities and excavation sites:

(a) Yellow - Gas, oil, petroleum products, steam, compressed air, compressed gases and all other hazardous liquid or gaseous materials except water.

(b) Red - Electric power lines or conduits.

(c) Orange - Communication lines or cables, including but not limited to telephone, telegraph, fire signals, cable television, civil defense, data systems, electronic controls and other instrumentation.

(d) Blue - Water.

(e) Green - Storm and sanitary sewers including force mains and other non-hazardous materials.

(f) Purple - Radioactive materials, reclaimed water, irrigation and slurry line.

(g) White - Excavation site.

(h) Pink - Survey markings.

753-5.3 System duties.

Each one-call notification system shall perform the following duties:

(a) Provide highest priority to notices concerning the discovery of underground facilities that have unknown operators or are in danger of failing;

(b) Conduct a continuing program to:

(1) Inform excavators of the one-call notification system's existence and purpose and their responsibility to notify the one-call notification system of planned excavation and demolition and to protect underground facilities;

(2) Inform operators of the responsibility to participate in the one-call notification system, to respond to a notice relating to a planned excavation and demolition and to designate and mark facilities according to the provisions of this Part.

(c) Provide a means by which contact information provided by the member operators can be obtained for the purpose of learning the location of underground facilities for design purposes.

(d) Provide an Automated Positive Response (APR) system for mandatory use by excavators and member operators, where determined by the one-call notification system to be technologically and economically practical.