Title of Regulation: 20VAC5-309. Rules for Enforcement of the Underground Utility Damage Prevention Act (adding 20VAC5-309-205).

Statutory Authority: §§ 12.1-13 and 56-265.30 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 26, 2013.

Agency Contact: Massoud Tahamtani, Director, Utility and Railroad Safety Division, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9264, FAX (804) 371-9734, or email massoud.tahamtani@scc.virginia.gov.

Summary:

The amendments provide the State Corporation Commission increased flexibility in its enforcement of the Underground Utility Damage Prevention Act by including a provision by which the rules may be waived by the commission upon a finding supported by clear and convincing evidence that such a waiver is in the public interest. Since the initial rules were promulgated in 1994, enhanced technology and methods employed in locating underground utility lines and the protection of such lines from excavation damage have given rise to the need for flexibility in the commission's enforcement of the Underground Utility Damage Prevention Act that recognizes the evolution of excavation and demolition practices in the Commonwealth of Virginia.

AT RICHMOND, JULY 22, 2013

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. URS-2013-00312

Ex Parte: In the matter concerning Rules
Implementing the StateCorporation
Commission's authority to enforce the
Underground Utility Damage Prevention Act

ORDER FOR NOTICE AND COMMENT

Section 56-265.30 of the Code of Virginia ("Code") authorizes the State Corporation Commission ("Commission") to enforce the provisions of Chapter 10.3 of Title 56 of the Code,¹ also known as the Underground Utility Damage Prevention Act ("Act"). Section 56-265.30 of the Code also authorizes the Commission to promulgate any rules or regulations necessary to implement the Commission's authority to enforce the Act.

The Commission's Division of Utility and Railroad Safety ("Division") proposes that the Commission adopt an additional rule, specified in Attachment A to this Order for Notice and Comment, for the enforcement of the Act. This additional rule is required to provide the Commission with increased flexibility in its enforcement of the Act by including a general waiver provision in the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act, 20 VAC 5-309-10 et seq., ("Rules") by which the Rules may be waived by the Commission upon a finding supported by clear and convincing evidence that such a waiver is in the public interest. Since the initial Rules were promulgated in 1994,² enhanced technology and methods employed in locating underground utility lines and the protection of such lines from excavation damage have given rise to the need for flexibility in the Commission's enforcement of the Act that recognizes the evolution of excavation and demolition practices in the Commonwealth of Virginia.³

NOW THE COMMISSION, upon consideration of this matter, is of the opinion and finds that the public should be afforded an opportunity to file written comments concerning the Proposed Rule and to request a hearing before the Commission on any substantive objection that cannot be presented effectively in writing. We further find that a copy of the Proposed Rule should be sent to the Registrar of Regulations for publication in the Virginia Register.

Accordingly, IT IS ORDERED THAT:

(1) This matter is docketed and assigned Case No. URS-2013-00312.

(2) The Commission's Division of Information Resources shall forward a copy of this Order for Notice and Comment, including a copy of the Proposed Rule, to the Registrar of Regulations for publication in the Virginia Register.

(3) A downloadable version of this Order for Notice and Comment and the Proposed Rule shall be available for access by the public on the Commission's website: http://www.scc.virginia.gov/case. A copy of this Order for Notice and Comment and the Proposed Rule shall be available for public inspection at the Commission's Document Control Center, Tyler Building, First Floor, 1300 East Main Street, Richmond, Virginia 23219, Monday through Friday from 8:15 a.m. to 5 p.m., excluding holidays.

(4) On or before July 31, 2013, the Commission's Division of Information Resources shall publish the following notice as classified advertising in newspapers of general circulation throughout the Commonwealth of Virginia:

NOTICE TO THE PUBLIC OF A PROPOSED RULE THAT THE STATE CORPORATION COMMISSION IS CONSIDERING FOR THE ENFORCEMENT OF THE UNDERGROUND UTILITY DAMAGE PREVENTION ACT

CASE NO. URS-2013-00312

Section 56-265.30 of the Code of Virginia ("Code") authorizes the State Corporation Commission ("Commission") to enforce the provisions of Chapter 10.3 of Title 56 of the Code, also known as the Underground Utility Damage Prevention Act ("Act"). Section 56-265.30 of the Code also authorizes the Commission to promulgate any rules or regulations necessary to implement the Commission's authority to enforce the Act.

The Commission's Division of Utility and Railroad Safety proposes that the Commission adopt a new rule as an additional requirement for the enforcement of the Act. This additional rule is required to provide the Commission with increased flexibility in its enforcement of the Act by including a general waiver provision in the Commission's Rules for Enforcement of the Underground Utility Damage Prevention Act, 20 VAC 5-309-10 et seq., ("Rules") by which the Rules may be waived by the Commission upon a finding supported by clear and convincing evidence that such a waiver is in the public interest. Since the initial Rules were promulgated in 1994, enhanced technology and methods employed in locating underground utility lines and the protection of such lines from excavation damage have given rise to the need for flexibility in the Commission's enforcement of the Act that recognizes the evolution of excavation and demolition practices in the Commonwealth of Virginia. The proposed additional rule is referred to herein as the "Proposed Rule."

The Commission has issued an Order for Notice and Comment providing, among other things, that notice be given to the public and that interested persons be given an opportunity to file written comments, or request a hearing, on the Proposed Rule.

Copies of the Commission's Order for Notice and Comment and the Proposed Rule are available for public inspection at the Commission's Document Control Center, Tyler Building, First Floor, 1300 East Main Street, Richmond, Virginia 23219, Monday through Friday from 8:15 a.m. to 5 p.m., excluding holidays. Interested persons may also download unofficial copies from the Commission's website: http://www.scc.virginia.gov/case.

On or before August 26, 2013, any interested person may file written comments, or request a hearing, on the Proposed Rule by filing such comments or hearing requests with Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Any interested person desiring to submit comments electronically may do so by following the instructions on the Commission's website: http://www.scc.virginia.gov/case. All correspondence shall refer to Case No. URS-2013-00312.

STATE CORPORATION COMMISSION

(5) On or before August 26, 2013, any interested person may comment, or request a hearing, on the Proposed Rule by filing such comments or hearing requests with Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Any interested person desiring to submit comments electronically may do so by following the instructions on the Commission's website: http://www.scc.virginia.gov/case. Requests for hearing must include: (i) a precise statement of the filing party's interest in the proceeding; (ii) a statement of the specific action sought to the extent then known; (iii) a statement of the legal basis for such action; and (iv) a precise statement why a hearing should be conducted in the matter. All correspondence shall refer to Case No. URS-2013-00312.

(6) The Division may file a report with the Clerk of the Commission on or before September 10, 2013, concerning comments submitted to the Commission addressing the Proposed Rule.

(7) This matter is continued pending further order of the Commission.

AN ATTESTED COPY hereof shall be delivered by the Clerk of the Commission to the Commission's Office of General Counsel and Divisions of Utility and Railroad Safety and Information Resources.

___________________________________

¹ Va. Code §§ 56-265.14 et seq.

² See Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: In the matter of adopting rules necessary to implement the State Corporation Commission's authority to enforce the Underground Utility Damage Prevention Act, Case No. PUE-1994-00071, 1994 S.C.C. Ann. Rept. 422, Order Adopting Procedural Rules for Enforcement of the Underground Utility Damage Prevention Act (Dec. 20, 1994).

³ The proposed additional rule will be referred to herein as the "Proposed Rule."

20VAC5-309-205. Commission authority.

Upon a finding that the public interest so requires, the commission may, upon motion, grant exemptions from any of the provisions of this chapter. The burden of proof shall be upon the movant to demonstrate, by clear and convincing evidence, that such exemption is in the public interest. The commission may, by order, require modification or elimination of any granted exemption no longer required by the public interest.