Tenn. Comp. R. & Regs. 1230 — Underground Utility Damage Enforcement Board

Chapter 1230-01-01 Definitions

Tenn. Comp. R. & Regs. 1230-01-01-.01 DEFINITIONS

(1) Any term used in these rules that has been defined in T.C.A. § 65-31-102 shall have the meaning given to the term therein.

(2) In addition, for the purpose of these rules, the following terms shall have the following meanings:

(a) “Act” means the Underground Utility Damage Prevention Act, T.C.A. §§ 65-31-101 et seq.

(b) “Board” means the underground utility damage enforcement board created by T.C.A. § 65-31-114.

(c) “Bore” or “Boring” means the creation of a horizontal hole beneath the surface of earth, pavement, or other materials without disturbing said surface, using directional drills, horizontal augers, or other equipment designed for such purpose.

(d) “Commission” means the Tennessee Public Utility Commission created by T.C.A. § 65- 1-101.

(e) “Complainant” means the person initiating a complaint against another party for investigation and consideration by the Executive Committee.

(f) “Cross bore” or “Cross boring” means an intersection of one underground utility by another underground utility resulting in a direct connection between the services of each utility that disrupts the integrity of at least one of the intersecting underground utilities.

(g) “Executive Committee” means the executive committee of the underground utility damage enforcement board created by T.C.A. § 65-31-114(f).

(h) “Hand dig” or “hand digging” means any movement, placement, or removal of earth, rock, or other materials in or on the ground by use of non-mechanized tools or equipment, including, but not limited to, shovels, picks, post hole diggers, vacuum excavation or soft digging.

(i) “Hearing Officer” means the same as “Administrative Judge,” as defined in T.C.A. § 4-5- 102(1), and “Hearing Officer,” as defined in T.C.A. § 4-5-102(4).

(j) “Investigative Staff” means the employee(s) of the Commission designated to investigate complaints pursuant to T.C.A. § 65-31-116(a).

(k) “Marking Standards” means the method by which an operator indicates the location of a facility in accordance with the guidelines adopted by the Board.

September, 2021 2 (l) “Person” means any individual; any corporation, partnership, association, or any other entity organized under the laws of any state; any state; any subdivision or instrumentality of a state; and any employee, agent or legal representative thereof.

(m) “Private Service Line” means an underground utility line or facility which is not owned by an operator and is not used by an operator to provide its utility services.

(n) “Proceeding” means any complaint submitted for adjudication by the Executive Committee, including any contested cases resulting from a respondent’s request for a hearing or the filing of a petition for enforcement by investigative staff, and any appeal of an order of a Hearing Officer.

(o) “Respondent” means a person against whom a complaint is filed or against whom any relief is sought.

(p) “Root Cause” means the primary reason for the occurrence of an event that constitutes an alleged violation of the Act.

(q) “Safety Zone” means a strip of land at least four feet (4’) wide, but not wider than the width of the utility plus two feet (2’) on either side of an underground utility line or facility.

History

• Authority: T.C.A. § 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Chapter 1230-01-02 Rules and Regulations of Practice and Procedure

Tenn. Comp. R. & Regs. 1230-01-02-.01 COMPLAINT OF ALLEGED VIOLATIONS OF THE ACT

(1) Any person may report an alleged violation of the Act by completing and submitting an electronic complaint, which can be found on the Commission’s website.

(2) Alleged violations must be reported to the Executive Committee within ninety (90) days of the person or entity becoming aware of the circumstances constituting the alleged violation.

(3) Reports of alleged violations should include as much relevant information concerning the circumstances as possible, including, but not limited to, damage and/or incident reports, photographs, statements and other informational documents.

History

• Authority: T.C.A. §§ 65-31-114(f)(1), 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.02 INVESTIGATIONS

(1) Upon receipt of a complaint alleging violation of the Act, Investigative Staff shall send notice of the complaint to the alleged violator requesting a written response within thirty (30) days.

Written responses to complaints may be provided to Investigative Staff by U.S. Mail or other commercial shipping/delivery service, facsimile, or electronic mail (“email”).

(2) Investigative Staff shall conduct an investigation to gather and examine all relevant facts with regard to the reported alleged violation. The investigation may include, but is not limited to, records verification, teleconferences, photo documentation, informal meetings and other appropriate investigative methods.

(3) Upon completion of the investigation, Investigative Staff shall provide its findings and recommendations to the Executive Committee or issue a notice of violation or citation as permitted by T.C.A. §§ 65-31-112, 65-31-116(b) and these rules.

(4) Where a complaint was not timely submitted, or as otherwise authorized by the Executive Committee, Investigative Staff may administratively close the investigation without presentation to the Executive Committee for determination of whether a violation occurred.

(5) Investigative Staff shall notify the Complainant of administrative closure, dismissal, or issuance of a citation in matters filed by the Complainant.

(6) Investigative Staff shall notify the Respondent of administrative closure or dismissal of matters filed against such Respondent or shall send to the Respondent a citation in matters where the Respondent is found to have violated the Act.

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History

• Authority: T.C.A. §§ 65-31-114(f)(1), 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.03 EXECUTIVE COMMITTEE PROCEEDINGS

(1) The Executive Committee shall meet periodically to review complaints of alleged violations of the Act and the Investigative Staff’s findings and recommendations relative to such complaints.

(2) At any time prior to the consideration of a complaint by the Executive Committee, the person or entity that submitted the complaint may notify Investigative Staff of withdrawal of the complaint. Upon withdrawal of the complaint, Investigative Staff shall administratively close the matter.

History

• Authority: T.C.A. §§ 65-31-114(f)(1), 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.04 AUTHORIZED ACTIONS BY INVESTIGATIVE STAFF

(1) If, during the course of an investigation, Investigative Staff identifies a person, in addition to, or in the alternative to the Respondent of a filed Complaint who may be responsible for the violation alleged in the Complaint. In such instance, Investigative Staff shall issue a Notice of Alleged Violation (“NAV”) to such person.

(2) The Investigative Staff may issue a citation, as directed by the Executive Committee.

(3) In matters where the root cause alleged is failure to give notice to the one-call service prior to excavation as required by T.C.A. § 65-31-106, the Executive Committee may authorize the Investigative Staff to issue a citation to the Respondent if the investigation finds uncontroverted evidence of such root cause, and further finds that the violation would be a first violation for the Respondent. In the alternative, Investigative Staff may present such matters to the Executive Committee for collective consideration. The Executive Committee may remove any individual matter presented for collective consideration to be considered on an individual basis.

History

• Authority: T.C.A. §§ 65-31-112, 65-31-114(f)(1), 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.05 GUIDELINES FOR APPLICATION OF PENALTIES

(1) The Executive Committee shall determine and assess penalties consistent with the provisions of T.C.A. § 65-31-112. When considering and determining the penalty for a violation, the Executive Committee may consider the nature, circumstances and gravity of the violation, the degree of the respondent’s culpability, the respondent’s history of prior violations, and such other factors as may be appropriate.

(2) When considering the history of prior violations, the Executive Committee shall consider only the number of violations occurring in the eighteen (18) months immediately preceding the date of the alleged violation when considering the respondent’s history of violations, provided, however, that the Executive Committee may consider a violation occurring more than eighteen (18) months immediately preceding the date of the alleged violation if the citation for such violation has not been satisfied.

History

• Authority: T.C.A. §§ 65-31-112, 65-31-114(f)(1), and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021. September, 2021 3

Tenn. Comp. R. & Regs. 1230-01-02-.06 REPRESENTATION BY COUNSEL

(1) Any party to a contested case may be advised and represented, at the party’s own expense, by a licensed attorney or attorneys.

(2) Any party to a contested case may represent himself or herself, provided, however, that in the case of a corporation, limited liability company, or other entity recognized by law, the party may give testimony as an authorized representative of the entity, but shall have an attorney to provide legal representation for the filing of pleadings, examination and cross-examination of witnesses, and other actions that require a licensed attorney, as required by the statutes, rules, regulations and orders concerning the practice of law within the state.

(3) Any out-of-state counsel shall comply with T.C.A. § 23-3-103(a) and Tenn. S. Ct. R. 19. The affidavit referred to in the Supreme Court Rule shall be filed with the Chair of the Board.

History

• Authority: T.C.A. §§ 23-3-103(a), 65-31-112, 65-31-115(a)(1), and 65-31-116; and Tenn. S. Ct. R. 19.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.07 PROCEEDINGS BEFORE A HEARING OFFICER

(1) In any contested case brought under the Act and these rules, the Hearing Officer or Executive Committee may, on his or her own motion or on motion of any party, enter an order, pursuant to T.C.A. § 4-5-306, directing counsel for the parties and any unrepresented parties to appear for a conference or conferences prior to the hearing on the merits to consider:

(a) The simplification of issues for the hearing on the merits;

(b) The necessity or desirability of any amendments to filings;

(c) The possibility of obtaining stipulations, admissions of fact, and admissions of documents which may avoid unnecessary duplication of proof;

(d) The disposition of any pending motions;

(e) The steps which may be taken to expedite the disposition of the case or to facilitate settlement of the case, or any part of the case; and, (f) Such other matters as may facilitate the just, efficient and economical disposition of the case including alternative resolution.

(2) At least one of the counsel or other representative for each party participating in the pre-hearing conference shall have authority to enter stipulations, make admissions, or enter agreements with respect to any matters which the parties may reasonably anticipate may be considered.

(3) The Hearing Officer shall enter an order which states the actions taken and all decisions made at the pre-hearing conference, and such order shall control the subsequent course of the case, unless modified by subsequent order.

(4) In the discretion of the Hearing Officer, all or part of the pre-hearing conference may be conducted by electronic means, provided that each participant in the conference shall have an opportunity to hear and to participate in the proceeding while it is taking place.

(5) In the absence of a pre-hearing conference, the Hearing Officer may issue a pre-hearing order based upon the filings to regulate the conduct of the proceedings.

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History

• Authority: T.C.A. §§ 4-5-306, 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.08 NOTICE OF HEARING

(1) Except as may be otherwise provided by statute or by these rules, the Executive Committee and Hearing Officer shall give all parties reasonable notice of any hearing on the merits.

(2) Except as may be otherwise provided by statute, by these rules, or by agreement of the parties, reasonable notice shall be given for any pre-hearing conference that may be held.

History

• Authority: T.C.A. §§ 4-5-307, 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-02-.09 EX PARTE COMMUNICATIONS

(1) Unless otherwise authorized by statute, rule, regulation or order of the Board or Executive Committee, all members of the Executive Committee and any Hearing Officer assigned to adjudicate any matters concerning complaints submitted to the Executive Committee may not communicate, directly or indirectly, regarding any issue in the proceeding, while such proceeding is pending, with any person, including, but not limited to:

(a) A party;

(b) A party’s employee, attorney, or representative;

(c) A person known to act on behalf of a party;

(d) A person who has direct interest in the outcome of the proceeding;

(e) A person representing a third party advocating a certain outcome of the proceeding; or, (f) A member of the Board who is not a member of the Executive Committee; without notice and opportunity for all parties to the proceeding to participate in the communication.

(2) Notwithstanding subsection (1) above, only to the extent not otherwise inconsistent with this

rule, any person may make educational or informational communications that are not intended to persuade or advocate a position on an issue in a particular proceeding while the proceeding is pending, provided, however, that the Executive Committee members and Hearing Officer do not receive ex parte communications of a type that such person would be prohibited from receiving and do not furnish, augment, diminish, or modify the evidence in the record.

(3) A member of the Executive Committee or a Hearing Officer assigned to adjudicate any matters concerning complaints submitted to the Executive Committee, who receives an ex parte communication in violation of this rule shall place on the record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom such person received an ex parte communication. Any party desiring to rebut the ex parte communication shall be allowed to do so, upon requesting the opportunity for rebuttal within ten (10) days after notice of the communication.

History

• Authority: T.C.A. §§ 4-5-304, 65-31-114(f)(1), 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021. September, 2021 5

Tenn. Comp. R. & Regs. 1230-01-02-.10 CONFLICTS OF INTEREST

The Board shall create a policy governing conflicts of interests that identifies procedures for identifying and disclosing conflicts of interest and establishes guidelines for participation in Board discussion and voting where conflicts of interest are identified and disclosed.

History

• Authority: T.C.A. §§ 4-5-303, 65-31-115, and 65-31-116.
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Chapter 1230-01-03 Regulations for Utility Location and Excavation

Tenn. Comp. R. & Regs. 1230-01-03-.01 WHITE LINING STANDARDS

(1) As required by T.C.A. § 65-31-106(b), the location of a proposed excavation or demolition shall be designated by marking such area with “safety white” color-coded stakes or paint, unless:

(a) The precise location of the proposed area can be ascertained by the operator or its agent based solely upon the street address from a one-call service locate ticket;

(b) The precise location of the proposed area can be ascertained by the operator or its agent from a one-call service location ticket that references a driveway or other easily identifiable point on the identified property;

(c) The precise location of the proposed area can be ascertained by the operator or its agent from a one-call service location ticket that identifies the property as being located on a street or road between two designed intersections of the street or road and two cross streets or roads; or (d) The person responsible for excavation or demolition and all operators with underground facilities in the proposed area of excavation have had a meeting prior to the commencement of excavation or demolition for the exchange of information on the location of the proposed area.

(2) Where the proposed area described in the one-call service location ticket is not consistent with, or is in contradiction to, the area designated by white line markings, the operator shall mark the area described in the one-call service location ticket, or if deemed necessary, contact the person responsible for the excavation or demolition to resolve such conflict or contradiction.

History

• Authority: T.C.A. §§ 65-31-106(b) and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-03-.02 MARKING STANDARDS

(1) The Board hereby adopts the Uniform Color Code and Marking Guidelines as found in Common Ground Alliance, Best Practices: The Definitive Guide for Underground Safety and Damage Prevention, Ch. 4, Locating and Marking, and Appx. B (Ver. 17.0, March 2020), as may be amended from time to time, and incorporates such standards as if stated herein verbatim.

(2) No local, county, or municipal governing body shall adopt, by resolution or ordinance, any color code and/or marking guidelines that are contrary to T.C.A. § 65-31-108 or this rule.

(3) An operator is not required to mark a Private Service Line. The marking of a Private Service Line is the responsibility of the person who owns the Private Service Line, who shall bear any expense for marking the Private Service Line.

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History

• Authority: T.C.A. §§ 65-31-108(a) and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-03-.03 EXERCISE OF REASONABLE CARE IN EXCAVATION PRACTICES

(1) An excavator shall exercise reasonable care to avoid damage caused by an excavation or demolition within the safety zone.

(2) In the exercise of reasonable care, an excavator shall take actions, which shall include, but are not limited to:

(a) Planning excavation or demolition to avoid damage to and minimize interference with underground utilities in and near the excavation area;

(b) Maintaining a clearance between the underground utility and the cutting edge or point of any mechanized equipment, taking into account the known limit of control of such cutting edge or point, as may be reasonably necessary to avoid damage to such utility;

(c) Providing such support and protection for underground utilities in and near the construction area, including during backfill operations, as may be reasonably necessary for the protection of such utilities; and (d) Installing each utility, regardless of the use or material, with sufficient clearance to permit the maintenance of existing utilities and to protect against damage to existing utilities.

(3) In performing trenchless excavation or boring, reasonable care shall include, but is not limited to:

(a) Visually inspecting the planned excavation path for structures indicating the presence of underground utilities;

(b) When possible, contacting utility company directly and review maps or drawings to verify underground utility locations;

(c) Reviewing surface markings and compare to other information to identify any unmarked or mis-marked utility;

(d) Hand digging test holes or “pothole” and use other safety precautions to identify the location and depth of utilities in the drill path; and (e) Drilling at a pace that is slow enough to permit tracking device(s) to detect drill line deflections or large obstructions.

(4) The Board further adopts the best practices for excavation as stated in Common Ground Alliance, Best Practices: The Definitive Guide for Underground Safety and Damage Prevention, Ch. 5, Excavation, and Appx. D (Ver. 17.0, March 2020), as may be amended from time to time, and incorporates such standards as if stated herein verbatim; provided, however, that the Common Ground Alliance Best Practices shall be read in conjunction with Tennessee law and United States law. Where the Common Ground Alliance Best Practices conflicts with state or federal law, the state or federal law shall serve as the controlling authority.

History

• Authority: T.C.A. §§ 65-31-108, 65-31-110, and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Chapter 1230-01-04 Rules and Regulations on Public Access to Meetings and Records

Tenn. Comp. R. & Regs. 1230-01-04-.01 PUBLIC RECORDS REQUESTS

(1) Pursuant to T.C.A. § 10-7-503(g), the purpose of the following public records rule is to provide timely and efficient access to public records of the Board while at the same time preserving the confidentiality and protection of records or information as provided under state and federal law.

(2) The Tennessee Public Records Act provides that all state public records shall, at all times during regular business hours, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.

(3) Through the Public Records Request Coordinator identified in this Rule, the Board shall timely and efficiently provide access and assistance to persons requesting to view or receive copies of public records. No provisions of this Rule shall be used to hinder access to open public records. However, the integrity and organization of public records, as well as the efficient and safe operation of the Board, shall be protected as provided by current law. Questions about these Rules should be addressed to the Board’s Public Records Request Coordinator or to the Tennessee Office of Open Records Counsel (“OORC”).

(4) The Board, having been established within the Commission by T.C.A. § 65-31-114(a), hereby adopts the Commission’s Rules on Access to Public Records Held By the Commission, Tenn.

R. & Regs. 1220-01-04-.01 et seq. and incorporates said rules as if restated verbatim herein.

History

• Authority: T.C.A. §§ 10-7-503, 65-31-114, and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-04-.02 PUBLIC ACCESS TO MEETINGS

(1) The Board shall comply with the Tennessee Public Meetings law, T.C.A. Title 8, Chapter 44.

(2) The Board shall have a minimum of two (2) regular meetings each year as required by T.C.A. § 65-31-115(b)(2).

(3) Special meetings may be called by the Board Chair or by a quorum of the Board.

(4) Reasonable advance notice of a meeting shall be given to all Board members, unless all Board members agree to waive notice, or unless exigent circumstances require meeting with less notice.

(5) Members of the Board may request items to be addressed on the Meeting Agenda of the Board.

Such requests to present information to the Board during a regularly scheduled Board meeting shall be submitted in writing to the Board Chair and the Board’s staff, at least fourteen (14) days prior to the meeting. Exceptions may be made in extraordinary circumstances at the direction of the Chair. All requests are subject to review and approval by the Chair.

September, 2021 2 (6) Board staff shall keep a record of all regular meetings. The minutes shall be transcribed and presented for approval or amendment at the next regular meeting. The minutes or a true copy thereof, approved by the Board, shall be open to public inspection and maintained on the website for the Commission.

(7) All regular meetings of the Board shall be open and public except for executive sessions as provided by the Tennessee Public Meetings law, T.C.A. Title 8, Chapter 44.

History

• Authority: T.C.A. §§ 8-44-102, 65-31-114, and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.

Tenn. Comp. R. & Regs. 1230-01-04-.03 PUBLIC COMMENTS

(1) Members of the public may submit written comment on any matter before the Board or its Executive Committee by sending such comments to: Underground Utility Damage Enforcement Board, ATTN: Board Counsel, 502 Deaderick Street, 4th Floor, Nashville, Tennessee 37243, or via email to Damage.Prevention@tn.gov .

(2) All meetings of the Board and its Executive Committee shall include a designated time for members of the public to comment. Public comment must relate to an item on the Board’s meeting agenda or the general business of the Board. The Board Chair may establish a time limit for comment.

History

• Authority: T.C.A. §§ 8-44-102, 65-31-114, and 65-31-115(a)(1).
• Administrative History: New rules filed June 8, 2021; effective September 6, 2021.