ASSEMBLY, No. 776
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblywoman BUONO and Assemblyman R. SMITH
An Act concerning underground facilities, and amending and supplementing P.L.1994, c.118, and amending P.L.1989, c.80.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1994, c.118 (C.48:2-73) is amended to read as follows:
1. Sections 1 through 19 of P.L.1994, c.118 (C.48:2-73 to C.48:2-91, inclusive) and sections 10 through 13 of [this act] P.L.19 , c. (C. ) (now before the Legislature as this bill) shall be known and may be cited as the "Underground Facility Protection Enforcement Act."
(cf: P.L.1994, c.118, s.1.)
2. Section 2 of P.L.1994, c.118 (C.48:2-74) is amended to read as follows:
2. The Legislature finds and declares that damage to underground facilities caused by excavation and the discharge of explosives poses a significant risk to the public safety; that such damage to underground natural gas facilities poses a substantial risk to the public safety; and that the implementation of a comprehensive One-Call Damage Prevention System can substantially reduce the frequency of damage caused by these activities.
The Legislature therefore determines that it is in the public interest for the State to require all operators of underground facilities to participate in a One-Call Damage Prevention System and to require all excavators to notify the One-Call Damage Prevention System prior to excavation or demolition.
The Legislature further determines that the Board of Public Utilities is the appropriate State agency to designate the operator of, and provide policy oversight to, the One-Call Damage Prevention System and enforce the provisions of this act; however, in those instances where the Board of Public Utilities has not instituted civil penalty and enforcement proceedings against the violator within a 30-day period after the violation, a designated officer or agency representing the county in which the violation occurs shall have the authority to bring civil proceedings against the violator.
The Legislature further determines that the county prosecutor of the county in which a violation of the criminal provisions of this act occurs is the appropriate officer to bring criminal proceedings against a person who violates these provisions.
(cf: P.L.1994, c.118, s.2.)
3. Section 3 of P.L.1994, c.118 (C.48:2-75) is amended to read as follows:
3. As used in this act:
"30-day period after the violation" means the 30 days immediately following the first day in which the violation occurred.
"Act" means the "Underground Facility Protection Enforcement Act."
"Board" means the Board of Public Utilities;
"Business day" means any day other than Saturday, Sunday, or a nationally or State recognized holiday;
"Damage" means any impact or contact with an underground facility, its appurtenances or its protective coating or any weakening of the support for the facility or protective housing, including, but not limited to a break, leak, dent, gouge, groove, or other damage to the facility, its lines, or their coating or cathodic protection.
"Designated county officer or agency" means an officer or agency, designated by the governing body of a county in which a violation has occurred, to bring civil penalty and enforcement proceedings against a person who has violated any provision of this act, or any rule, regulation or order adopted pursuant thereto, if the board has not instituted civil penalty and enforcement proceedings against a violator within a 30 day period after the violation;
"Emergency" means any condition constituting a clear and present danger to life, health or property caused by the escape of any material or substance transported by means of an underground facility or the interruption of a vital communication or public service that requires immediate action to prevent or mitigate loss or potential loss of the communication or public service, or any condition on or affecting a transportation right-of-way or transportation facility that creates a risk to the public of potential injury or property damage;
"Excavate" or "excavating" or "excavation" or "demolition" means any operation in which earth, rock, or other material in the ground is moved, removed, or otherwise displaced by means of any tools, equipment, or explosive, and includes but is not limited to drilling, grading, boring, milling to a depth greater than six inches, trenching, tunneling, scraping, tree and root removal, cable or pipe plowing, fence post or pile driving, and wrecking, razing, rending, or removing any structure or mass material, but does not include routine residential property or right-of-way maintenance or landscaping activities performed with non-mechanized equipment, excavation within the flexible or rigid pavement box within the right-of-way, or the tilling of soil for agricultural purposes to a depth of 18 inches or less;
"Excavator" means any person performing excavation or demolition;
"Hand digging" means any excavation involving non-mechanized tools or equipment, including but not limited to digging with shovels, picks and manual post-hole diggers;
"Mechanized equipment" means equipment powered by a motor, engine, or hydraulic, pneumatic or electrical device, including but not limited to trenchers, bulldozers, power shovels, augers, backhoes, scrapers, drills, cable and pipe plows, and other equipment used for plowing-in cable or pipe, but does not include tools manipulated solely by human power;
"One-Call Damage Prevention System" means the communication system established pursuant to section 4 of this act;
"Operator" means a person owning or operating, or controlling the operation of, an underground facility, but shall not include a homeowner who owns only residential underground facilities, such as an underground lawn sprinkler system or an underground structure for a residential low-voltage lighting system;
"Person" means any individual, firm, joint venture, partnership, corporation, association, State, county, municipality, public agency or authority, bi-state or interstate agency or authority, public utility, cooperation association, or joint stock association, and includes any trustee, receiver, assignee, or personal representative thereof;
"Public entity" means any federal, State, county or municipal entity responsible for issuing road opening, building, blasting, demolition or excavation permits;
"Site" means the specific place where excavation work is performed or to be performed and shall be identified by street address referenced to the nearest intersecting street and sub-division name, if applicable, as well as by lot and block number, if available and by kilometer or mile marker for railways;
"State department or agency" means any department, public authority, public agency, public commission, or other political subdivision of the State, including any county, municipality or political subdivision thereof.
"Underground facility" means any public or private personal property which is buried, placed below ground, or submerged on a right-of-way, easement, public street, other public place or private property and is being used or will be used for the conveyance of water, forced sewage, telecommunications, cable television, electricity, oil, petroleum products, gas, optical signals, or traffic control, or for the transportation of a hazardous liquid regulated pursuant to the "Hazardous Liquid Pipeline Safety Act of 1979" (49 U.S.C. app. § 2001 et seq.), but does not include storm drains or gravity sewers.
(cf: P.L.1994, c.118, s.2.)
4. Section 10 of P.L.1994, c.118 (C.48:2-82) is amended to read as follows:
10. a. An excavator shall notify the One-Call Damage Prevention System established pursuant to section 4 of this act of his intent to engage in excavation or demolition not less than three business days and not more than 10 business days prior to the beginning of the excavation or demolition.
b. Upon notifying the One-Call Damage Prevention System, an excavator shall provide the following information:
(1) The name and telephone number of the person notifying the system;
(2) The name, address, and office and field telephone numbers and facsimile numbers of the excavator;
(3) The name, address and telephone number of the person for whom the excavation work is to be performed; and
(4) The specific site location, starting date, starting time and description of the intended excavation or demolition, including the approximate depth of the excavation or demolition.
c. Where appropriate to provide clarification, an excavator shall mark and identify the perimeter of the proposed site of the excavation by the color white prior to notifying the One-Call Damage Prevention System of his intent to engage in excavation or demolition.
d. An excavator shall:
(1) Not operate any mechanized equipment within two feet horizontally of the outside wall of any underground facility marked in accordance with the provisions of this act, or marked in accordance with any rule, regulation, or order adopted pursuant to this act, unless the underground facility has first been located by hand digging. Mechanized equipment shall be used with proper care and under adequate supervision to avoid damage to the underground facility;
(2) Plan the excavation or demolition to avoid damage to and to minimize interference with underground facilities;
(3) Use reasonable care during excavation or demolition to avoid damage to or interference with underground facilities; and
(4) After commencement of excavation or demolition, protect and preserve the marking, staking, or other designation of an underground facility until the marking, staking, or other designation is no longer necessary for safe excavation or demolition.
e. An excavator shall immediately report to the operator of an underground facility any damage to the underground facility caused by or discovered by the excavator in the course of an excavation or demolition.
f. If any excavation or demolition is not initiated within 10 business days of the starting date of the intended excavation or demolition which was given by the excavator to the One-Call Damage Prevention System pursuant to subsection b. of this section, the excavator shall again notify the One-Call Damage Prevention System of his intent to engage in excavation or demolition pursuant to the provisions of this act.
(cf: P.L.1994, c.118, s.10.)
5. Section 14 of P.L.1994, c.118 (C.48:2-86) is amended to read as follows:
14. a. Whenever it appears to the board that a person has violated any provision of this act, or any rule, regulation or order adopted pursuant thereto, it [may] shall issue an order specifying the provision or provisions of this act, or the rule, regulation or order of which the person is in violation, citing the action which constituted the violation, ordering abatement of the violation, and giving notice to the person of his right to a hearing on the matters contained in the order. Such order shall be effective upon receipt and any person to whom such order is directed shall comply with the order immediately.
b. The board [may] shall institute an action or proceeding in the Superior Court for injunctive and other relief for any violation of this act, or of any rule or regulation adopted pursuant to this act within a 30-day period after the violation and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief, notwithstanding the provisions of R.S.48:2-24.
Such relief may include, singly or in combination:
(1) A temporary or permanent injunction; and
(2) Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection. Assessments under this subsection shall be paid to the State Treasurer.
The board or an affected operator may institute an action in the Superior Court to enjoin a person whose repeated failure to comply with the provisions of this act constitutes a threat to public safety from engaging in any further excavation or demolition work within the State, except under such terms and conditions as the Superior Court may prescribe to ensure the safety of the public.
c. The provisions of section 16 of [this act] P.L.1994, c.118 (C.48:2-88) to the contrary notwithstanding, a person who is determined by the board, after notice and opportunity to be heard, to have violated any provision of this act or any rule, regulation, or order adopted pursuant thereto with respect to a natural gas underground pipeline or distribution facility, or a hazardous liquid underground pipeline or distribution facility, shall be liable to a civil penalty [not to exceed] not less than $25,000 for each violation for each day the violation continues[, except that the maximum civil penalty may not exceed $500,000 for any related series of violations].
Any civil penalty imposed pursuant to this subsection [may] shall not be compromised by the board. In determining the amount of the penalty, [or the amount agreed upon in compromise,] the board shall consider the nature, circumstances, and gravity of the violation; the degree of the violator's culpability; any history of prior violations; the prospective effect of the penalty on the ability of the violator to conduct business; any good faith effort on the part of the violator in attempting to achieve compliance; the violator's ability to pay the penalty; and other factors the board determines to be appropriate.
The amount of the penalty when finally determined, [or the amount agreed upon in compromise,]may be deducted from any sums owing by the State to the person charged, or may be recovered, if necessary, in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce the provisions of "the penalty enforcement law" in connection with this act.
d. Pursuit of any remedy specified in this section shall not preclude the pursuit of any other remedy, including any civil remedy for damage to an operator's underground facilities or for damage to a person's property, provided by any other law. Administrative and judicial remedies provided in this section may be pursued simultaneously.
e. If the board does not institute civil penalty and enforcement proceeding against a violator of any provisions of this act within a 30-day period after the violation, the board shall so notify the governing body of the county in which the violation occurred, which county may, by ordinance or resolution, as appropriate, designate a county officer or agency to pursue any civil remedy provided for pursuant to this act for damage to an operator's underground facilities or for damage to a person's property. The designated county officer or agency may institute a civil action or proceeding in the Superior Court for injunctive and other appropriate relief for any violation of this act, or of any rule or regulation adopted pursuant to this act and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief, notwithstanding the provisions of R.S.48:2-24.
Such temporary relief may include, singly or in combination:
(1) A temporary or permanent injunction; and
(2) Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection. Assessments under this subsection shall be paid to the county treasurer.
(cf: P.L.1994, c.118, s.14.)
6. Section 15 of P.L.1994, c.118 (C.48:2-87) is amended to read as follows:
15. Any person who knowingly and willfully engages in an excavation without:
a. First using the One-Call Damage Prevention System to determine the location of underground facilities in the area being excavated; or
b. Heeding appropriate location information or markings established by any operator; or
c. Otherwise complying with the provisions of this act; and who because of that violation damages an underground facility resulting in death, serious bodily harm, or actual damage to property or loss of service revenue exceeding $50,000, or damages an underground hazardous liquid pipeline facility resulting in the release of more than 50 barrels of product, shall, upon conviction, be guilty of a crime of the third degree and shall be subject to the penalties set forth in N.J.S.2C:43-3; except that the fine shall be the maximum provided for pursuant to that section.
Notwithstanding any law, rule or regulation to the contrary, the county prosecutor within the county in which a violation of the provisions of this section occurs shall institute criminal proceedings against the violator, and all fines imposed pursuant to such proceedings shall be paid to the county treasurer.
Nothing in this section shall limit the jurisdiction of the board with respect to natural gas pipeline safety or limit the jurisdiction of the board, a designated county officer or agency, or a court of competent jurisdiction with respect to the civil administrative penalty and enforcement provisions of this act.
(cf: P.L.1994, c.118, s.15.)
7. Section 16 of P.L.1994, c.118 (C.48:2-88) is amended to read as follows:
16. a. An operator or excavator, or the person who operates the One-Call Damage Prevention System, who violates any provision of this act or any rule or regulation or order adopted pursuant thereto shall be liable to a civil penalty of not less than[$1,000 and not more than] $2,500 per day for each day the violation continues[, except that the maximum civil penalty may not exceed $25,000 for any related series of violations].
b. Any civil action pursuant to subsection a. of this section [may] shall be brought in a court of this State by the board within a 30-day period after the violation, or by a designated county officer or agency if the board has not instituted such an action within that 30-day period, or by an affected operator. Nothing in this act shall affect any civil remedy for damage to an operator's underground facility or for actual damage to any person's property.
(cf: P.L.1994, c.118, s.16.)
8. Section 18 of P.L.1994, c.118 (C.48:2-90) is amended to read as follows:
18. All civil penalties recovered by the board pursuant to this act shall be paid into the General Fund. All civil penalties recovered by the designated county officer or agency pursuant to this act shall be paid to the county treasurer.
(cf: P.L.1994, c.118, s.18.)
9. Section 1 of P.L.1989, c.80 (C.48:9-33) is amended to read as follows:
1. a. Any person who is determined by the Board of Public Utilities, after notice and opportunity to be heard, to have violated the provisions of any law, rule, regulation, or order relating to natural gas pipeline safety shall be subject to a civil penalty of not [more] less than $25,000 for each such violation for each day that the violation persists[, except that the maximum civil penalty shall not exceed $500,000 for any related series of violations].
b. Any civil penalty imposed pursuant to subsection a. of this section [may] shall not be compromised by the board. In determining the amount of the penalty, [or the amount agreed upon in compromise,]the board shall consider the nature, circumstances, and gravity of the violation; the degree of the violator's culpability; any history of prior violations; the prospective effect of the penalty on the ability of the violator to conduct business; any good faith on the part of the violator in attempting to achieve compliance; his ability to pay the penalty; and any other factors justice may require. The amount of the penalty, when finally determined, [or the amount agreed upon in compromise,]may be deducted from any sums owing by the State to the person charged, or may be recovered in a summary proceeding instituted by the board in Superior Court in accordance with "the penalty enforcement law," N.J.S.2A:58-1 et seq.
c. Whenever it shall appear to the board that a person has violated, intends to violate, or will violate any provision of any law, rule, regulation, or order relating to natural gas pipeline safety, the board [may] shall institute a civil action in Superior Court for injunctive relief or for any other appropriate relief under the circumstances, and
the court may proceed on any such action in a summary manner.
(cf: P.L.1994, c.118, s.20)
10. (New section) a. A person appealing a civil administrative penalty levied in accordance with the provisions of this act, whether as a contested case pursuant to P.L.1968, c.410 (C.52:14B-1 et seq.) or by appeal to a court of competent jurisdiction, shall, as a condition of filing the appeal, post with the board or the designated county officer or agency, as appropriate, a refundable bond, or other security approved by the board or designated county officer or agency, as appropriate, in the amount of the civil administrative penalty or assessment levied pursuant to a civil administrative hearing. If the civil administrative penalty or assessment is upheld in whole or in part, the board or the designated county officer or agency, as appropriate, shall be entitled to a daily interest charge on the amount of the judgment from the date of the posting of the security until that amount is paid in full. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
b. A person who is assessed a civil administrative penalty, or is subject to an assessment levied pursuant to the provisions of this act, and fails to contest or to pay the penalty or assessment, or fails to enter into a payment schedule with the board or the designated county officer or agency, as appropriate, within 30 days of the date that the penalty or assessment is due and owing, shall be subject to an interest charge on the amount of the penalty or assessment from the date that the amount was due and owing. The rate of interest shall be that authorized pursuant to subsection a. of this section.
c. Any person who fails to pay a civil administrative penalty or assessment, in whole or in part, when due and owing, or who fails to agree to a payment schedule therefor, shall be subject to the civil penalty provisions of this act, as appropriate.
d. A civil administrative penalty or assessment imposed pursuant to a final order:
(1) may be collected or enforced by summary proceeding in a court of competent jurisdiction in accordance with the "penalty enforcement law," (N.J.S.2A:58-1 et seq.); or
(2) shall constitute a debt of the violator, and the civil administrative penalty may be docketed with the clerk of the Superior Court, and shall have the same standing as any judgment docketed pursuant to N.J.S.2A:16-1.
11. (New section) In each county in which criminal charges are instituted by the county prosecutor pursuant to this act, and in each county in which civil enforcement action is instituted by a designated county officer or agency, a report shall be prepared and filed with the board by the prosecutor or designated officer or agency, as appropriate, at the time the action is instituted, and such report shall be followed by a subsequent report on the outcome of the action.
12. (New section) After consultation with the Attorney General, the board shall report to the Governor and the Legislature and every county in this State within three months of the effective date of this act, and not later than every third month thereafter. Each report shall include information on the number of violations and where they occurred, the amount of fines assessed for each occurrence, the number and amount of fines paid for each occurrence, and any recommendations of the board regarding the expansion of, or changes in, the program.
13. (New section) The board shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to effectuate the purposes of this 1995 amendatory and supplementary act.
14. This act shall take effect immediately.
STATEMENT
This bill amends and supplements P.L.1994, c.118 (C.48:2-73 et seq.), the "Underground Facilities Protection Act," and amends P.L.1989, c.80 (C.48:9-33 et seq.) to provide for the increased enforcement of these laws by changing their civil and criminal penalty provisions; providing for the re-notification of the One-Call Damage Prevention System if the intended excavation or demolition has not commenced within a certain period of time; and requiring the Board of Public Utilities (hereinafter, the "board") to issue quarterly reports on violations of these laws to the Governor, the Legislature and all 21 counties of this State.
The bill increases civil penalties for violators who disrupt natural gas or hazardous liquid substance pipelines from no more than $25,000 per violation per day not to exceed $500,000 for any related series of violations, to no less than $25,000 per violation per day without any cap on the total amount of fines. Civil penalties for violators who disrupt all other underground facilities would increase from no less than $1,000 and no more than $2,500 per violation per day not to exceed $25,000 for any related series of violations, to no less than $25,000 per violation per day without any cap on the totals.
The bill amends P.L.1994, c.118 (C.48:2-73 et seq.) to remove the board's ability to compromise the civil penalties. The bill provides a maximum time frame for violators to pay fines and establishes an expedited process to consider appeals of fines.
The bill provides that governing bodies of counties where violations occur may designate a county officer or agency to represent the county in instituting civil proceedings against violators if the board fails to institute penalty and enforcement proceedings within a 30-day period after the violation. Civil penalties recovered by the designated county officer or agency are to be paid to the county treasurer.
The bill provides that a violator who is convicted under the criminal penalty provisions of section 15 of P.L.1994, c.118 (C.48:2-87) shall be subject to the penalties provided pursuant to N.J.S.2C:43-3; but, that the fine shall be no less than $7,500. The bill further provides that the county prosecutor within the county in which a violation of the criminal provisions of this act occurred shall pursue criminal proceedings against any person who violates the criminal provisions of this act, and that fines imposed pursuant to criminal proceedings shall be paid to the county treasurer.
The bill requires that if the excavation or demolition of a site is not initiated within 10 business days of the starting date of intended excavation or demolition given to the one-call system operator, excavators to notify the one-call system operator again of their intent to undertake excavation or demolition activities at that site under the provisions of this act.
The bill requires the board to report quarterly to the Governor, the Legislature and all 21 counties on the number of violations and where they occurred, the amount of fines for each occurrence, and the number and amount of fines paid for each occurrence. The bill allows the board to issue rules and regulations to carry out the purposes of the act.
"Underground Facility Protection Enforcement Act."