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.

Effective Date: December 1, 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, NOVEMBER 15, 2013

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. URS-2013-00312

Ex Parte: In the matter concerning Rules
implementing the State Corporation
Commission's authority to enforce the
Underground Utility Damage Prevention Act

ORDER ADOPTING REGULATIONS

On July 22, 2013, the State Corporation Commission ("Commission") initiated a rulemaking pursuant to § 56-265.30 of the Code of Virginia ("Code"), which authorizes the 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") proposed that the Commission adopt an additional rule that includes 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 ("Proposed Rule"). This additional rule was proposed to provide the Commission with increased flexibility in its enforcement of the Act.

The Commission's July 22, 2013 Order for Notice and Comment ("July 22, 2013 Order") set out the rule proposed by the Division and provided that public notice of the Proposed Rule be given so as to afford any interested person or entity an opportunity to comment on or to request a hearing on the Proposed Rule.

Notice of the proceeding was published in the Virginia Register on August 12, 2013, and in newspapers of general circulation throughout the Commonwealth of Virginia.² Interested persons were directed to file any comments and requests for hearing on the Proposed Rule on or before August 26, 2013.

Comments in this proceeding were submitted by Washington Gas Light Company ("WGL") and Columbia Gas of Virginia, Inc. ("Columbia Gas"). The Commission did not receive a request for hearing on the Proposed Rule.

On August 23, 2013, WGL submitted comments in this proceeding with a suggested modification to the Proposed Rule.³ Specifically, WGL proposed a modification to the Proposed Rule that would permit the Commission to modify or eliminate a waiver granted pursuant to the Proposed Rule upon a finding that such waiver is "adverse to the public interest" as opposed to the Division's proposal that a finding be made that the waiver is "no longer required by the public interest." On August 26, 2013, Columbia Gas submitted comments supporting the adoption of the Proposed Rule.⁴

As directed by the July 22, 2013 Order, the Division filed a report on September 10, 2013, responding to the comments received on the Proposed Rule. The Division opposed WGL's modification to the Proposed Rule, stating that "a showing of why the waiver is 'no longer in the public interest' is adequate to return to the status quo under the Damage Prevention Rules."⁵ Accordingly, the Division recommended that the Commission adopt the Proposed Rule without modification.

NOW THE COMMISSION, upon consideration of this matter, is of the opinion and finds that the proposed regulation should be adopted without modification.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's regulations regarding Rules for Enforcement of the Underground Utility Damage Prevention Act, 20 VAC 5-309-10 et seq., are hereby adopted as shown in Attachment A to this Order and shall become effective as of December 1, 2013.

(2) A copy of these regulations as set out in Attachment A of this Order shall be forwarded to the Registrar of Regulations for publication in the Virginia Register.

(3) There being nothing further to come before the Commission, this case hereby is dismissed from the Commission's docket.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: Meera Ahamed, Senior Legal Counsel, Office of General Counsel, Washington Gas Light Company, 101 Constitution Avenue, N.W., Washington, D.C. 20080; and James S. Copenhaver, Assistant General Counsel, NiSource Corporate Services Company, 1809 Coyote Drive, Chester, Virginia 23836; and a copy shall be delivered to the Commission's Office of General Counsel and Division of Utility and Railroad Safety.

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¹ Va. Code §§ 56-265.14 et seq.

² See Memoranda from Laura S. Martin of the Commission's Division of Information Services, filed in this docket on August 7, 2013, and August 26, 2013.

³ Comments of WGL at 2.

⁴ Comments of Columbia Gas at 1.

⁵ Response at 2.

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.