New Enforcement Procedures for Pennsylvania One Call System
November 1, 2017
Legislation has been signed by the Governor that would, among other things, transfer oversight of, and enforcement authority for violations of, the Underground Utility Line Protection Law, commonly known as “One Call,” from the Pennsylvania Department of Labor & Industry (Department) to the Pennsylvania Public Utility Commission (PUC).
Highlights of the PUC’s enforcement procedures under Act 50 of 2017 (Senate Bill 242, Printers No. 1227) include:
- Reports of alleged violations will be investigated by a “damage prevention investigator.” The investigator’s report will include findings and recommendations, which will be reviewed by the “Damage Prevention Committee.” If the report determines that a violation occurred, a person can either acknowledge the violation or appear before the Committee to present its position.
- The Committee may:
- Issue a warning letter.
- Require a person to attend a damage prevention educational program.
- Issue an informal determination. Informal determinations may modify or dismiss a recommendation. It can also impose an administrative penalty of not more than $2,500 per violation. However, if a violation results in injury, death or property damage of $25,000 or more, an administrative penalty of not more than $50,000 may be imposed.
- The informal determination of the Committee shall be binding on the PUC unless the person rejects the informal determination. A person who is subject to an informal determination of the Committee may accept or reject the result. If an informal determination is rejected, the matter shall be returned to the damage prevention investigator for further action, if appropriate, including referring the matter to the PUC’s Bureau of Investigation and Enforcement, which serves as the PUC’s prosecutory bureau, for purposes of issuing a “formal complaint.”[1]
- The informal determination process may be applied in advance or instead of filing a formal complaint. However, alleged violations that involve injury or death may be prosecuted under the PUC’s formal complaint process.
- Formal complaints are a legal proceeding before the PUC. Companies are required (by the PUC’s regulations) to be represented by an attorney. Formal complaints are assigned to a PUC administrative law judge (ALJ), who will hold an evidentiary hearing and render a written decision. The parties should have a right to file exceptions,[2] which are written objections, to that decision. The five PUC commissioners may then rule on the ALJ’s decision (and any exceptions) at a public meeting.
- The PUC may issue a warning and/or an order requiring compliance and may levy an administrative penalty for a violation. A warning, order or penalty will be served on the person or entity violating this act at the person’s last known address. A party aggrieved by the imposition of an order or administrative penalty imposed by the PUC may file an appeal.
This Act, as written, will become fully effective on Saturday, April 28, 2018, which is 180 days after it was signed by the Governor. Certain provisions relating to recovery of program costs and the extension of the sunset date (until December 31, 2024) took effect immediately upon the Governor’s signature. The remaining provisions are effective on April 28th.
The Act does not explicitly preserve the jurisdiction of the Department over incidents and alleged violations that occurred prior to the effective date, so one would think that any such incidents or alleged violations would be transferred from the Department to the PUC. We would assume that such transfers would be explained by the PUC in an Implementation Order or a memoranda of understanding between the PUC and the Department.
[1] The term “formal complaint” appears to refer to formal complaints under the Commission’s regulations, see 52 Pa.Code §§ 5.21-5.24, as opposed to a complaint in the Court of Common Pleas. In addition, the Act — as written — appears to contemplate that only the PUC’s Bureau of Investigation and Enforcement can file a formal complaint for violations of the One Call Law. It is, therefore, not entirely clear if any person, corporation, or municipal corporation having an interest in the subject matter may file a formal complaint with the PUC setting forth a violation or claimed violation of the One Call Law. We expect that these issues will be clarified by the PUC in an Implementation Order.
[2] The Act does not explicitly mention the filing of exceptions. However, exceptions are expressly permitted under the PUC’s regulations to the initial, tentative or recommended decision of an ALJ. See, e.g., 52 Pa. Code §§ 5.533-5.536. We expect that this issue would be explained by the PUC in an Implementation Order.
This Eckert Seamans Energy and Utilities Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Carl Shultz at (717) 255-3742 – cshultz@eckertseamans.com – or Dan Clearfield at (717) 237-7173 – dclearfield@eckertseamans.com.
Share This Post
Author
