CHAPTER En
800 UNDERGROUND UTILITY DAMAGE
PREVENTION PROGRAM
Statutory
Authority: RSA 374:50
REVISION NOTE:
Document #14062,
effective 8-21-24, adopted chapter En 800 by essentially adopting and amending
the text of Puc 800. The authority for public
hearings codified in Puc 800 was transferred from the
Public Utilities Commission to the Department of Energy pursuant to 2021,
91:187, which adopted RSA 12-P, Department of Energy. The prior filings
pertaining to Puc 800 include the following
documents:
#2050, eff 6-13-82
#2912, eff 11-28-84
#5616, eff 4-20-93
#7259, eff 5-20-00, INTERIM
#7350, eff 8-23-00
#7900, eff 5-29-03
#9226, eff 6-46-08, INTERIM
#9318, eff 11-08-08
#12102, eff 2-8-17
PART En 801 APPLICATION OF RULES
En
801.01 Purpose.
(a) The purpose of En 800 is to protect the
public, operators, and excavators from physical harm, damages, and interrupted
service resulting from damage to underground facilities.
(b) En 800 establishes procedures and
requirements relative to:
(1) Minimum requirements for the
operation of the system, including notification procedures;
(2) The investigation of
complaints including enforcement;
(3) Emergency situations for which
notice of excavation pursuant to RSA 374:51, II, is not required; and
(4) Minimum standards of marking
the tolerance zone.
Source. #14062, eff 8-21-24
(a) Each operator, as defined in En 802.12,
shall:
(1) Comply with En 800 and RSA
374:48-56; and
(2) Maintain membership with the
notification center.
(b) Any person, including
any person who owns or operates an underground facility in New Hampshire but
who is not an operator, as defined in En 802.12, may become a member of the
notification center.
(c) Any member of the notification center who is
not an operator but who owns or operates an underground facility shall comply
with En 800.
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PART En 802 DEFINITIONS
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En 802.03 "Department" means the New
Hampshire department of energy.
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En
802.12 "Operator" means
"operator" as defined in RSA 374:48, IV-a, namely, "any public
utility as defined in RSA 362:2 or RSA 362:4, any cable television system as
defined in RSA 53-C:1, and any liquefied petroleum gas company operating any
jurisdictional facility or facilities as defined by the Natural Gas Pipeline
Safety Act (49 U.S.C. chapter 601) that owns or operates underground
facilities." This term also
includes any rural electric cooperative for which a certificate of deregulation
is on file with the commission pursuant to RSA 362:2, II, and any provider of
voice over internet protocol service as defined in RSA 362:7, I(d) or
IP-enabled service as defined in RSA 362:7, I(e).
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PART En 803 SYSTEM REQUIREMENTS
En 803.01 Procedures and Operation of Notification
Center.
(a)
The system shall operate a notification center, as contemplated by RSA
374:49.
(b)
The notification center required by (a) above shall:
(1) Receive notification from excavators about
intended excavation activities;
(2) Provide to excavators who give notice of an
intent to engage in an excavation activity the names of potentially affected
operators and members owning or operating underground facilities to whom the
notification center shall transmit notice;
(3) Promptly transmit to potentially affected
operators and members the information received from excavators about intended
excavation activities;
(4) Provide the excavator, at the time of initial
contact, a registration number confirming the notification of intended
excavation activity;
(5) Create a record, which shall include the
material included in (6) below, of each notification of the intent to engage in
an excavation activity and related communication;
(6) Create, pursuant to (5) above, a record of
each proposed excavation, including the following:
a. The name of the person notifying the
notification center;
b. The name, address, and telephone number of
the excavator;
c. The specific location, including information such as:
1. Latitude and longitude coordinates;
2. Two cross street locations;
3. Notable landmarks;
4. Utility pole numbers that are verifiable in the field; or
5. Mile markers;
d. The starting
date for the proposed excavation;
e. The most current and accurate description of
the intended excavation activity, to include information regarding any blasting
or any trenchless excavation methods;
f. The name(s) of any sub-contractor or other
person or entity who the excavator indicates may excavate at the intended
excavation site on behalf of the excavator making the notification;
g. The date and time of the notification;
h. The confirmation or registration number;
i. The identity of potentially affected members
and operators that the notification center contacts to inform of the intended
excavation activity;
j. The date and time the notification center
transmitted notice of the intended excavation activity to each potentially
affected member and operator;
k. The date and time the notification will
expire in accordance with En 805.01(c);
and
l. As to any material follow-up communication
relating to the proposed excavation activity directed to the communications
center:
1. The party or parties involved in the
communication;
2. The content of the communication;
3. The date and time of the communication; and
4. The date, time, and recipient of any
transmittal of the communication; and
(7) Maintain the record required to be kept by
(5) and (6) above for a period of a minimum of 3 years from the date of the
last communication.
(c)
The current toll-free telephone numbers of the notification center for
reporting proposed excavations and otherwise communicating with the
notification center shall be, 811 or 888-"DIG-SAFE," which is,
888-344-7233.
(d)
The notification center shall maintain an internet-based system for
proposed excavations at www.digsafe.com.
(e)
Operators and members of the notification center shall use
communications equipment that is compatible with the notification center.
(f)
The notification center shall develop and implement procedures and use
communication equipment which are adequate to acknowledge calls within 20
seconds.
(g)
The notification center shall staff its operation a minimum of 10 hours
each day, 5 days each week, excluding Saturdays, Sundays, and holidays, to
respond to both routine and emergency calls.
(h)
During the hours that the notification center is not operated by staff,
the notification center shall provide, at a minimum, for an answering service
capable of responding to an emergency notification request 24 hours per day, 7
days per week.
(i)
The training provided by the notification center shall direct the public
to make emergency calls to 911.
(j)
The notification center shall be capable of responding to a request for
emergency notification and shall transmit the information as provided in (k)(3)
below.
(k)
The notification center shall transmit information as follows:
(1) Notices of proposed excavation activities to
potentially affected members and operators by 5:00 p.m. on the date of receipt;
(2) Routine messages by 5:00 p.m. on the date of
receipt; and
(3) Messages relating to emergency situations, as
described in En 805.03, to any potentially affected member, operator, or
excavator, as applicable, as soon as possible, but not later than 10 minutes
following receipt.
Source. #14062, eff 8-21-24
En
803.02 Education and Training.
(a)
The notification center shall assure that the toll-free telephone number
shall be prominently displayed in telephone directories state-wide.
(b)
The notification center shall:
(1) Make available literature describing the
notification center;
(2) Assure the distribution of such literature to
the public; and
(3) Make such literature available for purchase
and distribution by requesting parties.
(c)
The notification center shall, upon request, provide training to its
members regarding the operations of the notification center.
(d)
The notification center shall provide all members and interested persons
with a brochure explaining the notification center's objectives, procedural
guidelines, and opportunities for member participation.
Source. #14062, eff 8-21-24
PART En 804 DUTIES OF OPERATORS
En 804.01 Reporting Requirements for Operators of
Underground Facilities.
(a)
Each operator shall notify the department as soon as reasonably
possible, which in any event shall be within 24 hours of when it receives an
excavator's notification or otherwise has reason to believe that damage as
defined in En 802.02, has occurred to its underground facilities. Operator
notification to the department shall be sufficient if it includes the date,
time, and location of the damage, as well as all other information included in
an excavator's notification to the operator, whether or not verified or
confirmed by the operator.
(b)
Each operator shall complete and file "Form E-26, Report of
Probable Violation of Underground Utility Regulations and/or Damage to
Underground Facilities," revised August 2024, available on the department's
website at www.energy.nh.gov, to the department as soon as reasonably possible,
which in any event shall be within 20 days of when it receives an excavator's
notification or otherwise has reason to believe that damage has occurred to its
underground facilities.
(c)
Operators shall complete and file a negative report on department
"Form E-26 Report of Probable Violation of Underground Utility Regulations
and/or Damage to Underground Facilities," revised August 2024, available
on the department’s website at www.energy.nh.gov, with the department on or
before the 3rd business day of the following month when there are no
violations or written reports of probable violations of En 800, damage to
underground facilities, or both.
(d)
The operator shall send the reporting form required by this section,
accompanied by, where applicable, any troubleman's
report, technician's report, other operator report, and any other incident
report, to the department's "enforcement division," at the mailing
address or email address listed on department Form E-26.
(e)
After December 31, 2016, upon exposure of previously unrecorded or
inaccurately recorded underground facilities in the course of
excavation the operator shall verify and modify the existing records as
necessary.
(f)
The operator shall maintain records of all existing underground facility
locations identified pursuant to (e) above and of all underground facilities
abandoned in place after December 31, 2016.
Source. #14062, eff 8-21-24
En 804.02 Notification Requirements.
(a)
Any operator who owns or operates an underground facility used in the transportation of gas or hazardous
liquids and subject to the federal pipeline statute, 49 U.S.C. §§ 60101 to
60137, shall:
(1) Maintain a current list of the names and
contact information of persons who normally engage in excavation activities in
the area in which any underground facility is located;
(2) Notify abutters of the existence of an underground
facility used in the transportation of gas or hazardous liquids subject to the
federal pipeline statute; and
(3) Notify persons who normally excavate in the
area in which an underground facility used in the transportation of gas or
hazardous liquids subject to the federal pipeline statute owned by that
operator, as often as needed to make them aware of the notification center,
including:
a. The notification center's existence and
purpose; and
b. How to learn the location of underground
facilities before excavation activities begin.
(b)
An affected operator shall complete the notification required by En
804.02(a)(2) above by:
(1) Distributing fliers;
(2) Informational mailings;
(3) Placing line markers;
(4) Signage; or
(5) Other reasonable public education outreach
actions.
(c)
An affected operator shall complete the notification required by En
804.02(a)(3) above by distributing informational mailings, conducting
informational sessions, or other means of effective communication.
(d)
An operator who participates in an underground utility damage prevention
system shall not be required to locate underground facilities not owned by the
operator, including, but not limited to, any such underground facilities
running from a house to a garage or other outbuilding.
(e)
When no underground facility is within the area of a proposed
excavation, an owner or operator receiving notification of the proposed
excavation shall so advise the excavator by:
(1) Marking the non-existence of facilities
within the premarked area of intended excavation in
accordance with En 806;
(2) Participating in a meeting where details of
the job site are discussed and documented; or
(3) Communicating
with the excavator via e-mail, fax, telephone, or other electronic
communication, provided that the excavator confirms receipt of such
communication.
Source. #14062, eff 8-21-24
En 804.03 Training of Locators.
(a)
Locators shall be trained in accordance with the National Utility
Locating Contractors Association (NULCA) Professional Competence Standards for
Locating Technicians, Fifth Edition 2017, available as noted in Appendix
B, including the competencies as described in (b) below.
(b)
If not already specifically included in the above, training programs for
locators shall be supplemented to include the following competencies:
(1) Electromagnetic locating;
(2) Instruction in the use of transmitters and
receivers;
(3) Procedures for marking underground
facilities;
(4) Training in the identification of facilities;
(5) Safety procedures;
(6) Operator map and record reading; and
(7) Familiarity with the rules in this chapter.
Source. #14062, eff 8-21-24
PART En 805 DUTIES OF AN EXCAVATOR
En 805.01 Notification Required Prior to Excavation.
(a)
No person shall perform an excavation within 100 feet of an underground
facility, except in an emergency situation pursuant to En 805.03, without first
giving notification in accordance with this section.
(b)
Excavators shall, pursuant to RSA 374:51 notify the notification center:
(1) Not less than 72 hours prior to the proposed
excavation, not including Saturdays, Sundays, and legal holidays; and
(2) Not more than 30 days prior to the proposed
excavation.
(c)
The excavator's notification, required by (a) above, shall be valid for
30 calendar days from the date and time the notification center confirms the
notification.
(d)
Excessive notifications by the same excavator on the same day may
constitute extraordinary circumstances causing an operator to be unable to
designate the location of underground facilities in a timely manner as required
in En 806.02. It shall be presumed to be
an extraordinary circumstance causing an operator to be unable to designate the
locations of underground facilities as required in En 806.02 when the same
excavator makes in excess of 15 notifications on the same day, provided that
the operator complies with En 806.01(g) with respect to the notifications in
excess of 15.
(e)
When an excavator contacts the notification center as described in (a)
above, it shall provide the following:
(1) The name of the person notifying the
notification center;
(2) The name, address, and telephone number of
the excavator;
(3) The name of each subcontractor or other
person or entity who is expected to excavate at the intended excavation site on
behalf of the excavator making the notification; and
(4) The specific location, including:
a.
Latitude and longitude coordinates if known;
b.
Two cross street locations if applicable;
c.
Notable landmarks;
d.
Utility pole numbers that are verifiable in the field; and
e.
Mile markers;
(5) The starting date for the proposed
excavation; and
(6) The most current and accurate description of
the intended excavation activity, to include information regarding any blasting
or any trenchless excavation methods.
(f)
Prior to complying with the notification requirements of RSA 374:51, II
and (a) above, an excavator shall, pursuant to RSA 374:51, IV, premark the area of proposed excavation by identifying the
perimeter of the proposed site of the excavation.
(g)
The excavator shall premark in a way that does
not interfere with traffic or pedestrian control and is not misleading to the
general public.
(h)
An excavator shall not be required to premark
any continuous excavation that is over 100 feet in length, or any pole
replacement that is within 5 feet of an existing location.
(i)
If an excavation for a pole replacement is within 5 feet of an existing
location, the excavator shall communicate the perimeter of the excavation to
any potentially affected operator and any other potentially affected member of
the notification center who owns or operates an underground facility, by any
one of the following methods:
(1) Providing a detailed description of the site
area;
(2) Providing detailed construction plans;
(3) Holding an on-site meeting with potentially
affected operators; or
(4) Providing other effective means of
communicating the perimeter of the excavation to any potentially affected
operator, member, or both, of the notification center who owns or operates an
underground facility.
(j)
If an excavation is over 100 feet in length, the excavator shall
communicate the perimeter of the excavation to any potentially affected
operator, as well as any member of the notification center who owns or operates
an affected underground facility, by any 2 of the following methods:
(1) Providing a detailed description of the site
area;
(2) Providing detailed construction plans;
(3) Holding an on-site meeting with potentially
affected operators; and
(4) Providing other effective means of
communicating the perimeter of the excavation to any potentially affected
operator, member, or both, of the notification center who owns or operates an
underground facility.
(k)
Once an owner or operator of an underground facility has marked the
location of its underground facility in the area of an
excavation, pursuant to RSA 374:53 and En 805.02, the excavator, and any
employee or agent of the excavator performing work on behalf of the excavator
at the site, shall be responsible for maintaining the markings during the
excavation.
(l)
No person or entity not an employee of the excavator shall excavate on
behalf of an excavator as a subcontractor or otherwise without separately
complying with the notification requirements of this section unless the
excavator has notified the notification center of the identity of that person
or entity as provided in (e)(3) above.
(m)
A subcontractor of the excavator or other entity may excavate pursuant
to the excavator's notification to the notification center if the subcontractor
or entity:
(1) Performs excavation at the location specified
in the notification;
(2) Has a contract or other written authorization
to perform the excavation for the excavator;
(3) Does the excavation work specified in the
notification;
(4) Is listed with the notification center, as
provided in (e)(3) above; and
(5) Otherwise complies with En 800, RSA
374:48-56, and other applicable law.
(n)
No person shall misuse the intent of the notification center by making a
request for marking of an underground facility for other than excavating
activities, such as for conducting an engineering design, or without a present
intention to excavate at the site subject to the request within 30 days.
Source. #14062, eff 8-21-24
En 805.02 Excavation That Affects the Tolerance Zone.
(a) Any person conducting excavation
activity that affects the tolerance zone surrounding an underground facility at all times shall exercise such reasonable care as is
necessary to protect the underground facility from damage.
(b)
Except as provided in (c) below, in order to locate and identify an
underground facility, the excavator shall excavate by methods limited to:
(1) Hand digging;
(2) Pot holing;
(3) Soft digging;
(4) Vacuum excavation;
(5) Other mechanical methods with the approval of
the underground facility owner or operator; or
(6) Other methods accepted in the industry
consistent with the alternatives listed in (1) through (5) above, which clearly
will not affect the integrity of the underground facility.
(c)
For bituminous pavement and concrete travel surface removal an excavator
shall not be limited to hand digging and the other non-invasive methods cited
in (b) above.
(d)
For parallel type excavations, such as excavation along an existing
underground facility at an approximately equal distance when measured
periodically, the excavator shall expose the existing underground facility at
intervals as often as necessary to avoid damage.
(e)
For perpendicular type excavations in which the markings are completed
in accordance with 806.01(a)(2), the excavator shall expose the existing
underground facility using methods listed in (b) above within the defined
tolerance zone.
(f)
In the event the excavator exposes what appears to be the underground
facility that is offset from the centerline:
(1) The excavator shall not assume there are no
other underground facilities having the same function within the tolerance
zone; and
(2) The excavator shall continue using methods
listed in (b) above through remainder of the tolerance zone unless the
verification of the existence or non-existence of underground facilities is
determined by the operator.
(g)
For trenchless excavations, such as horizontal drilling, boring,
pneumatic jacking, tunneling, and pavement reclamation, reasonable care for
purposes of En 805.02(a) shall include determining the exact depth of the
underground facility and clearances required by the operator and incorporating
location details into the trenchless excavation procedure so as to avoid any
potential damage of the underground facility.
Source. #14062, eff 8-21-24
En 805.03 Emergency Situations.
(a) If necessary to respond in an emergency
situation, an excavator may begin an excavation without notifying the
notification center prior to excavation as required by En 805.01, but shall
notify the notification center at the earliest practicable moment.
(b) In notifying the notification center of
excavation or intended excavation in an emergency situation, the excavator
shall specifically identify the dangerous condition involved.
(c) An excavator who excavates in an emergency
situation shall not be liable for a failure to notify the notification center
as required by En 805.01 with respect to excavation in the emergency situation,
provided the excavator provides the subsequent notice required in En 805.03(a).
(d) Nothing in this section shall relieve the
excavator from liability if:
(1) The
excavator damages an underground facility which has been properly marked; or
(2) The
excavation does not qualify as an emergency situation.
(e) No excavator shall indicate to the
notification center or to an operator or member of the notification center that
owns or operates an underground facility that an event constitutes an emergency
situation unless the excavator believes in good faith that the circumstances do
constitute an emergency situation.
(f) The parties may request a determination by
the department regarding whether a situation is, or was, an emergency
situation, by setting forth in writing directed to the director of the
department’s enforcement division the facts supporting the assertion that the
excavation was necessary to respond to an emergency situation and specifically
identifying the dangerous condition involved, and the department shall make
such a determination using a non-adjudication process based on a review of the
facts of the situation and the definition of emergency situation.
Source. #14062, eff 8-21-24
(a) If an excavator determines that blasting will
be required during an excavation, the excavator shall inform the notification
center when providing notice of the excavation.
(b) If an excavator determines during the
effective term of the excavator's notification that blasting is required within
the area premarked in accordance with En 805.01(d),
the excavator shall notify the notification center of the need to blast at
least 24 hours prior to any blasting, not including Saturdays, Sundays, and
holidays.
(c) When unanticipated obstructions prevent
further excavation without blasting, the excavator shall provide separate
notice of such blasting not less than 4 hours in advance of such blasting, not
including the hours of 4:00 p.m. to 6:00 a.m. weekdays, or all of Saturdays,
Sundays, and holidays.
Source. #14062, eff 8-21-24
En 805.05 Damage to an Underground Facility. When an excavator causes any damage to an
underground facility not owned or operated by the excavator, the excavator
shall:
(a)
Call 911 when:
(1) A gas underground facility is damaged and
there is a release of gas;
(2) An electric underground facility is damaged
and an excavator is informed that someone may have received an electrical shock
or the excavator otherwise determines that a person may have received an
electric shock; or
(3) Any other facility is damaged and public
safety is affected;
(b)
Evacuate nearby structures if necessary;
(c)
Contact the facility owner or operator at the earliest
practicable moment following discovery of the damage;
(d)
Attempt no repairs, unless directed to by the facility owner or
operator;
(e)
Call the notification center at 811 or 888-"DIG-SAFE"; and
(f)
Report the damage within 72 hours excluding weekends and holidays to the
department by electronic mail on department "Form SNU-0401, Report of Probable
Violation of Underground Utility Regulations and/or Damage to Underground
Facilities, Non-Utility Report," revised August 2024 and available at the
department website at www.energy.nh.gov.
Source. #14062, eff 8-21-24
PART En 806 MARKING THE TOLERANCE ZONE
En 806.01 Tolerance Zone.
(a)
An operator shall use one of the following marking methods to mark the
tolerance zone of an underground facility:
(1) The corridor marking method shall be the
practice of placing markers at either boundary of the tolerance zone, such that
the markers will be 18 inches plus one-half the width of the facility away from
the facility centerline;
(2) The centerline marking method shall be the
practice of placing markers directly over the centerline of the facility
establishing boundaries at points located 18 inches plus one-half the width of
the facility from the markers; or
(3) The offset marking method shall be the
practice of locating the centerline of the facility and placing markers at
locations which parallel the facility.
(b)
Any operator shall use the offset marking method only when it is
impractical to use either the corridor or centerline methods, such as in
marking in the traveled portion of an unpaved roadway.
(c)
When marking an underground facility, an operator shall mark the
underground facility consistent with the color code for the utility type of the
underground facility, as set forth in En 806.02.
(d)
In the event an operator maintains 2 or more underground facilities in close proximity to each other within the area of the
proposed excavation activity, and the corridor marking method is to be applied,
the operator may mark one tolerance zone.
(e)
When an operator marks 2 or more underground facilities as described in
(d) above:
(1) The operator shall establish the boundaries
of the tolerance zone by use of the corridor marking method by locating the
boundaries of each separate underground facility and placing markers at the
outer boundaries of the multiple underground facilities; and
(2) When the marking results in one area being
marked, the operator shall inform the excavator of the marking of each of the
separate underground facilities within the marked boundaries, either verbally
or by appropriate single markings pursuant to En 806.01.
(f)
When an operator maintains 2 or more underground facilities in close
proximity to each other within the area of the proposed excavation and the
centerline marking method is to be applied, the operator shall place markers,
conforming with En 806.01(a)(2), over the centerline of each facility.
(g)
In the event the operator or member who owns or operates an underground
facility is unable to designate the location of the underground facility due to
extraordinary circumstances:
(1) The operator or member shall notify the
notification center and provide an estimated completion date;
(2) The notification center shall document on the
existing notification ticket, utilizing an attachment message, that the utility
is unable to designate the location of the underground facility; and
(3) The operator shall notify the excavator who
called the notification center that it is unable to designate the location of
the underground facility due to extraordinary circumstances.
Source. #14062, eff 8-21-24
(a)
Within 72 hours after receipt of notice from a proposed excavator or
from the notification center of a proposed excavation, but not including
Saturdays, Sundays, and holidays, an operator or member of the notification
center who owns or operates an underground facility, shall:
(1) Mark the location of its underground facility
in the area of the proposed excavation; or
(2) If no underground facility is within the area
of the proposed excavation, so notify the excavator pursuant to En 804.02(e).
(b)
An operator who participates in an underground utility damage prevention
system shall not be required to locate underground facilities not owned by the
operator, including, but not limited to, any such underground facilities
running from a house to a garage or other outbuilding.
(c)
An operator shall mark underground facilities by the use of paint,
stakes, flags, or by any other means that clearly indicates the location of the
underground facility.
(d)
An operator shall consider the physical characteristics in the area of
the proposed excavation in determining the type of marker to be used.
(e)
Operators shall mark underground facilities according to the following
color code:
(1) Red shall be used for underground facilities conveying
electric power, electric cable conduits, or lighting cables;
(2) Yellow
shall be used for underground facilities conveying gas, oil, steam, petroleum,
or gaseous materials;
(3) Orange shall
be used for underground facilities used for communications, alarm, signal,
communications cables, or communications conduit;
(4) Blue shall be used for underground facilities
conveying potable water;
(5) Green shall be used for underground
facilities conveying sewer or used for drain lines;
and
(6) Purple shall be used for underground
facilities conveying reclaimed water such as used for irrigation or slurry
lines.
(f)
Excavators shall use the color white
for the pre-marking of the boundaries of a proposed excavation, except
as provided in (g) below.
(g)
Excavators shall use pink for pre-marking when snow conditions would
render white premarking not clearly visible.
Source. #14062, eff 8-21-24
(a)
When an operator marks its underground facility, it shall indicate:
(1) The width of the underground facility for all
facilities greater than 1 inch nominal diameter;
(2) The specific owner or operator of the
underground facility; and
(3) The function of the underground facility.
(b)
For purposes of En 806.03(a)(3) functions shall be marked by using:
(1) The letter "E" for underground
facilities conveying electricity;
(2) The letter "G" for underground
facilities conveying gas;
(3) The letters "PP" for underground
facilities conveying oil;
(4) The letters "ST" for underground
facilities conveying steam;
(5) The letters "CH" for underground
facilities conveying chemicals;
(6) The letter "T" for underground
facilities containing telephone wires or cable;
(7) The letters "CATV" for underground
facilities conveying cable television signals;
(8) The letters "TC" for underground
facilities conveying traffic control information or signals;
(9) The letters "FA" for underground
facilities conveying fire alarm information or signals;
(10) The letter "W" for underground
facilities conveying water;
(11) The letters "RW" for underground
facilities conveying reclaimed water;
(12) The letter "S" for underground
facilities conveying sewage;
(13) The letters "SS" for underground
facilities conveying storm sewage; and
(14) The letters "SD" shall be used for
underground facilities used for storm drainage.
(c)
An operator shall identify with markings any changes in direction or
terminations occurring within the immediate area of the proposed excavation
with arrows or other appropriate indicators.
Source. #14062, eff 8-21-24
En 806.04 Emergency Procedures. Each operator and member of the notification
center who owns or operates an underground facility, shall develop internal
practices and procedures to:
(a) Receive and respond to emergency
notifications; and
(b) Mark the location of facilities in emergency
situations.
Source. #14062, eff 8-21-24
En 806.05 Marking Certain Newly Installed
Underground Facilities.
(a)
Upon completing the installation of new underground facilities within an
area that has been subject to excavator notification and premarking
pursuant to En 805.01, an operator shall make reasonable efforts to communicate
the existence of such new facilities if they are covered with soil or other
material that impairs their visibility.
(b)
For purposes of (a) above, reasonable efforts shall include:
(1) Marking the tolerance zone in accordance with
En 806.01, En 806.02, En 806.03, and En 806.04;
(2) Contacting the excavator with information
regarding the presence of the newly constructed underground facilities; or
(3) Leaving a tag or marker clearly indicating the
presence of the newly constructed underground facilities with contact
information.
Source. #14062, eff 8-21-24
PART En 807 ENFORCEMENT PROCEDURES
En 807.01 Investigation of Complaints.
(a)
The notification center shall institute procedures to receive and
resolve complaints of excavators, operators, owners of
underground facilities, members, and the general public,
but nothing contained herein precludes any private cause of action for damages,
including for wanton, intentional, or other unlawful conduct.
(b)
Owners and operators of underground facilities shall institute
procedures to receive and resolve complaints of
excavators and the general public.
(c)
The department staff shall consider and decide unresolved complaints
pursuant to the procedures established in En 807.02 through 807.07.
(d)
An unresolved dispute relating to En 800 which is appealed in writing
shall be treated as a request for an adjudicatory proceeding pursuant to the
procedures established in En 200.
Source. #14062, eff 8-21-24
En 807.02 Notice of Probable Violation.
(a)
In the event the department staff determines that a probable violation
of RSA 374:48-56, En 800, or both, has occurred, staff shall issue a written
notice of probable violation (NOPV) to the party alleged to have committed the
violation.
(b)
The department staff shall send information regarding the NOPV by email
or by regular or certified mail to the party
noticed in the NOPV.
(c)
The NOPV shall include the following:
(1) A description of the probable violation and
reference to the rule or statute regarded as violated;
(2) The date and location of the probable
violation;
(3) A statement notifying the party or parties
involved that civil penalties might be imposed pursuant to RSA 374:55 in the
event of an unfavorable determination; and
(4) Procedures for resolving the probable
violation.
(d) Any owner or operator of an
underground facility involved in the NOPV shall provide a representative for
any informal conference or hearing scheduled pursuant to En 800.
Source. #14062, eff 8-21-24
En 807.03 Responses to Notice of Probable Violation.
(a)
Upon receipt of the NOPV, the respondent shall either:
(1) Submit to the department within 30 days, in
writing, evidence refuting the probable violation referenced in the NOPV;
(2) Request in writing within 30 days, an
informal conference with department staff to examine the basis of the probable
violation; or
(3) Execute a consent agreement with the
department resolving the probable violation.
(b)
If the respondent requests an informal conference pursuant to (a)(2)
above, the department staff shall set a date and time for the informal
conference.
Source. #14062, eff 8-21-24
En 807.04 Notice of Violation.
(a)
If, after reviewing testimony and any other evidence obtained in writing
or conferences, the department or department staff involved in the damage
prevention program determines that a violation of RSA 374:48-56, or En 800 has
occurred, the department or department staff involved in the damage prevention
program shall issue a notice of violation (NOV) to the respondent pursuant to
RSA 374:55, VII.
(b)
The NOV so issued shall include:
(1) The factual and statutory basis for the
unfavorable preliminary determination;
(2) A description of factors relied upon by
department staff in making its determination, such as the gravity of the
violation, history of prior violations, degree of culpability of the
respondent, how quickly the respondent took action to rectify the situation,
cooperativeness of respondent, and any other factors which would tend to either
aggravate or mitigate the violation;
(3) The civil penalty, if any, proposed to be
imposed;
(4) Procedures for remitting penalty; and
(5) Statutory rights of the respondent as
enumerated in RSA 374:48-56.
Source. #14062, eff 8-21-24
En 807.05 Response to Notice of Violation. Within 10 days from receipt of the NOV, the
respondent shall either:
(a) Sign a consent agreement and remit the civil
penalty; or
(b) File a request in writing for a hearing
before the department.
Source. #14062, eff 8-21-24
(a)
The department shall act upon staff's recommendation unless the
respondent requests a hearing pursuant to En 807.05(b).
(b)
Upon receipt of a hearing request under En 807.05(b), the department
shall provide the respondent with notice and an opportunity for a hearing, held
pursuant to En 200.
(c)
At any hearing held under (b) above, the respondent shall have an
opportunity to present evidence disputing the department's determination.
Source. #14062, eff 8-21-24
(a)
If the department or designated department staff within the division of
enforcement finds reason to issue an NOV, the department or designated
department staff shall determine whether to assess a civil penalty and the
amount thereof pursuant to RSA 374:55.
(b)
In determining the assessment, the following factors shall be
considered:
(1) The severity of the consequences resulting
from the violation, the gravity of the violation, the degree of culpability of
the respondent, and the cooperativeness of respondent, with weight to be given
to compliance with En 805.05, history of prior violations, and other factors
which would tend to aggravate fault; and
(2) Mitigating circumstances, such as how quickly
the excavator took action to rectify the situation, how much control the
excavator had over the situation, and other circumstance which would tend to
lessen fault.
Source. #14062, eff 8-21-24
APPENDIX A: STATE
STATUTES IMPLEMENTED
|
Rule |
Specific State Statute the Rule Implements |
|
En 801.01 |
RSA 374:50; RSA
374:55,VII |
|
En 801.02 |
RSA 374:50 |
|
En 802.01 |
RSA 374:50; RSA 374:48,VIII |
|
En 802.02 |
RSA 374:50; RSA
374:48, I |
|
En 802.03 |
RSA 374:50 |
|
En 802.04 |
RSA 374:50 |
|
En 802.05 |
RSA 374:50; RSA
374:48, III |
|
En 802.06 |
RSA 374:50; RSA
374:48, IV |
|
En 802.07 |
RSA 374:50 |
|
En 802.08 |
RSA 374:50 |
|
En 802.09 |
RSA 374:50; RSA
288:1; RSA 288:2 |
|
En 802.10 |
RSA 374:50 |
|
En 802.11 |
RSA 374:50 |
|
En 802.12 |
RSA 374:50; RSA 374:48, IV-a; RSA 362:2, II; RSA
362:7, III(e) |
|
En 802.13 |
RSA 374:50; RSA
374:48, V |
|
En 802.14 |
RSA 374:50; RSA
374:51, IV |
|
En 802.15 |
RSA 374:50; RSA
374:48, I |
|
En 802.16 |
RSA 374:50 |
|
En 802.17 |
RSA 374:50; RSA
374:48, VII |
|
En 803.01 |
RSA 374:50, I;
RSA 374:49, RSA 374:52 |
|
En 803.02 |
RSA 374:50, I |
|
En 804.01 |
RSA 374:50 |
|
En 804.02 |
RSA 374:50; RSA
374:49; RSA 374:52 |
|
En 804.03 |
RSA 374:50 |
|
En 805.01 |
RSA 374:50, I;
RSA 374:51 |
|
En 805.02 |
RSA 374:50 |
|
En 805.03 |
RSA 374:50; III;
RSA 374:51, I |
|
En 805.04 |
RSA 374:50; RSA
374:51,VII |
|
En 805.05 |
RSA 374:50; RSA
374:54; 49 C.F.R. §198.55(a)(6) (iii)(A) |
|
En 806.01 |
RSA 374:50; RSA
374:53 |
|
En 806.02 |
RSA 374:50; RSA
374:53 |
|
En 806.03 |
RSA 374:50; RSA
374:53 |
|
En 806.04 |
RSA 374:50, III |
|
En 806.05 |
RSA 374:50; RSA
374:53 |
|
En 807.01 |
RSA 374:50, II |
|
En 807.02 |
RSA 374:50; RSA
374:55, VII |
|
En 807.03 |
RSA 374:50; RSA
374:55 |
|
En 807.04 |
RSA 374:50; RSA
374:55, VII |
|
En 807.05 |
RSA 374:50; RSA 374:55 |
|
En 807.06 |
RSA 374:50; RSA
374:55, VII |
|
En 807.07 |
RSA 374:50; RSA
374:55 |
Appendix B:
DOCUMENTS INCORPORATED BY REFERENCE
|
Rule |
Title |
Publisher;
How to Obtain; and Cost |
|
En
804.03(a) |
The
National Utility Locating Contractors Association (NULCA) Professional
Competence Standards for Locating Technicians, Fifth Edition 2017 |
The
National Utility Locating Contractors Association (NULCA). Available at no
cost on the department’s website at www.energy.nh.gov. |