TITLE 18 TRANSPORTATION
AND HIGHWAYS
CHAPTER 60 PIPELINE
CONSTRUCTION AND MAINTENANCE
PART 5 PIPELINE
SAFETY EXCAVATION DAMAGE PREVENTION
18.60.5.1 ISSUING
AGENCY: New Mexico Public Regulation Commission.
[18.60.5.1 NMAC -
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18.60.5.2 SCOPE: This rule applies to all one-call
notification systems, excavators, and owners and operators of pipelines and
other underground facilities in New Mexico with the exemption of those preempted
by federal law.
[18.60.5.2 NMAC -
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18.60.5.3 STATUTORY
AUTHORITY: Sections 8-8-4, 62-14-7.1, 62-14-10, 70-3-4,
and 70-3-13 NMSA 1978.
[18.60.5.3 NMAC -
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18.60.5.4 DURATION: Permanent.
[18.60.5.4 NMAC -
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18.60.5.5 EFFECTIVE
DATE: January 15, 2019, unless a later date is
cited at the end of a section.
[18.60.5.5 NMAC -
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18.60.5.6 OBJECTIVE: The purpose of this rule is to implement
Chapter 62, Article 14 NMSA 1978 by providing procedures for preventing damage to
underground utilities and for dealing with damage when it occurs during
excavation activities.
[18.60.5.6 NMAC -
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18.60.5.7 DEFINITIONS: In addition to the definitions in Section
62-14-2 NMSA 1978, 18.60.2.7 NMAC and 18.60.4.7 NMAC, as used in this rule:
A. Definitions
beginning with “A”: access information means a telephone number, a
facsimile number, an email address, and, if available, a web site address;
B. Definitions beginning with “B”: bid
locate
means the marking of underground facilities at the request of a project owner
or
project engineer for the purpose of providing information to persons bidding on
a project;
C. Definitions
beginning with “C”: [RESERVED]
D. Definitions beginning with “D”: design locate means the marking of underground
facilities at the request of a project owner or project engineer for the
purpose of providing information to persons designing a project;
E. Definitions beginning with “E”:
(1) effective
date
excludes the day that advance notice is provided as may be required in this
rule, whereby the computed date shall begin at 12:01 a.m. after two full
working days;
(2) emergency locate means the marking of underground facilities at the
request of a person for an underground facility owner as soon as practical,
ideally within 2 hours for the purpose of an emergency excavation;
(3) excavation
locate means the marking of underground facilities for the purpose of
providing information at the request of an excavator planning to commence
excavation for the excavator's project;
F. Definitions beginning with “F”: [RESERVED]
G. Definitions beginning with “G”: [RESERVED]
H. Definitions beginning with “H”: holiday means the day New
Mexico state government observes New Year's Day, Martin Luther King, Jr's,
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's
Day, Thanksgiving Day, President's Day, and Christmas Day;
I. Definitions beginning with “I”: [RESERVED]
J. Definitions beginning with “J”: [RESERVED]
K. Definitions beginning with “K”: [RESERVED]
L. Definitions beginning with “L”: [RESERVED]
M. Definitions beginning with “M”: mechanical
vacuum excavation
is deemed an appropriate non-mechanical method of excavating safely around
underground facilities provided that the equipment has been specifically
designed and built for this purpose and is operated in accordance with
practices that provide appropriate levels of worker and public safety and
prevent damage to buried facilities;
N. Definitions beginning with “N”: non-member
UFO
means a private underground facility owned by a homeowner and operated and
located on a residential property or not subject to the jurisdiction of the commission;
O. Definitions beginning with “O”: [RESERVED]
P. Definitions beginning with “P”:
(1) project engineer means the person
designated by the owner to be in responsible charge of the project involving
excavation, including the design thereof, and who is licensed in accordance
with Section 61-23 NMSA;
(2) project owner means the owner of a project involving excavation;
Q. Definitions beginning with “Q”: [RESERVED]
R. Definitions beginning with “R”: road
maintenance means
routine grading and resurfacing of the earth and gravel surface, but not the
subbase, of a roadway for the purpose of maintaining the surface condition of
the road and includes recovery of material from a borrow ditch but does not
include road construction or reconstruction and shall entail moving no more than
four inches of earth; road maintenance does not include street sweeping or road
milling and resurfacing as long as the subsurface is not disturbed;
S. Definitions beginning with “S”: [RESERVED]
T. Definitions beginning with “T”: [RESERVED]
U. Definitions beginning with “U”: underground
facility operator (UFO) means a person who operates an underground facility;
V. Definitions beginning with “V”: [RESERVED]
W. Definitions beginning with “W”: working
day
means a full business day excluding weekends and holidays;
X. Definitions beginning with “X”: [RESERVED]
Y. Definitions beginning with “Y”: [RESERVED]
Z. Definitions beginning with “Z”: [RESERVED]
[18.60.5.7 NMAC -
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18.60.5.8 RESPONSIBILITIES
OF ONE-CALL NOTIFICATION SYSTEMS: A
one-call notification system shall:
A. provide
toll-free access;
B. provide to the
commission quarterly the name, contact person, and access information for each
member of the one-call notification system;
C. notify the
commission of the service area in which the one-call notification system operates;
D. have a written
coordination agreement with other one-call notification systems operating in New Mexico;
E. keep a record of
all locate requests, tickets, and clears for five years and make such records
available to the commission upon request;
F. provide monthly reports
to the commission, no later than the tenth of each month, with the following
information:
(1) average
wait time for answered calls for the previous month;
(2) number
of calls received for the previous month;
(3) number
of tickets generated for the previous month;
(4) number
of requests by type (regular, priority, emergency) for the previous month.
G. report any
changes in access information to the commission on or before the date the
information will change;
H. establish a
registry of non-member UFOs that voluntarily provide their contact and
underground facility information for excavation purposes;
I. establish a
positive response registry system; and
J. inform any
person who calls with a complaint that they may file a complaint with the
commission's pipeline safety bureau, and provide the commission's pipeline
safety bureau access information, if the one-call system is unable to
satisfactorily resolve the matter.
K. processing
locate requests;
(1) A
one-call notification system may hold a locate request in suspension until it
is complete. The one-call notification
system shall contact an excavator, project owner, or project engineer within
three hours to request any missing information that prevents the one-call
notification system or non-member UFO from processing the request.
(2) A
one-call notification system shall process all complete locate requests within
three hours of receipt. A one-call
notification system shall deem locate requests received on a weekend or
holiday, or after 4:00 p.m. on a working day, to have been received at 7:00 a.m.
on the next working day and shall deem locate requests received before 7:00 a.m.
on a working day to have been received at 7:00 a.m. on that working day.
(3) Upon
receipt of a complete conference or locate request, a one-call notification
system shall issue a ticket with a unique number to the requesting person as confirmation, and shall send a ticket to all members of the
system that have underground facilities in the excavation area, or notify the members
by telephone. A ticket shall become
effective at the date and time a one-call notification system issues a ticket
number; if the ticket is for a conference, the ticket shall be marked "wide
area conference," "bid conference," or "design conference,"
as appropriate.
(4) Any
person may contact the one-call notification system and request confirmation of
damage reports, conferences, and locate requests.
[18.60.5.8 NMAC -
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18.60.5.9 RESPONSIBILITIES
OF UFOs:
A. A UFO shall
report any changes to the information required by Subsection B of 18.60.5.8 NMAC
to the one-call notification system(s) at least seven days prior to the
effective date.
B. A UFO shall
retain records of locate requests, excavation notices and underground facility
damage information for a period of five years and make such records available
to the commission upon request.
C. A UFO that
utilizes contractors to perform locate and excavation activities or damage
investigations on its behalf shall be responsible for compliance with Chapter
62, Article 14 NMSA 1978 and these rules.
[18.60.5.9 NMAC -
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18.60.5.10 LOCATE
REQUESTS: An excavator shall make an excavation locate request for all projects involving excavation, including
road maintenance, with the exception of subsurface potholing or vacuum
excavation activities conducted solely for the purpose of physically exposing
or locating underground facilities.
However, this exception does not preclude compliance with 18.60.5.18
NMAC. Although not required under the
Excavation Damage to Pipelines and Underground Utility Lines Law, Sections
62-14-1, et seq. NMSA 1978, or this rule,
locate requests are encouraged for excavation projects involving purely
non-mechanical means.
A. Submittal.
(1) An
excavator shall submit an excavation locate request to each one-call
notification system:
(a) by
telephone or in person during normal business hours Monday to Friday, excluding
holidays; or
(b) by
facsimile or electronically via online web portal with appropriate one-call
notification center twenty-four hours a day, seven days a week.
(2) An
excavator shall also submit an excavation locate request to each non-member
UFO.
B. Size of locate requests.
(1) An
excavator shall determine the maximum area that the excavator can reasonably
expect to excavate within a 15 working day period and shall request an
excavation locate for that area only. The excavator shall pre-mark the actual
intended excavation route or site(s) for any incorporated city, town, or
village including extra-territorial zone(s) in accordance with American public
works association (APWA) marking guidelines to communicate to facility owners
where the actual excavation will take place for standard 15 working day ticket
requests only. Outside these
incorporated areas, excavators shall provide clear and accurate driving and
marking instructions, and either GPS coordinates or pre-marks, as described
above, which define the parameters of the proposed excavation. The pre-marked excavation shall encompass
locations(s) where excavation equipment that may penetrate the surface will be
setup, such as directional boring equipment.
If the location markings have been removed, or are no longer visible,
and there are no marking offsets, the person engaging in the excavation
activity shall suspend excavation activities and reinitiate a locate request
set forth in this section. Such relocate
request shall be limited to the area yet to be excavated only.
(2) An
excavator may request relocates for the same area only if justified by the
circumstances and nature of the work; such justification shall be made part of
the relocate request.
C. Minimum information required. When requesting an excavation locate or a
locate conference, an excavator shall comply with the requirements of the
one-call notification system or non-member UFO operating in the intended
excavation area and shall provide accurate and truthful information. A locate request shall be deemed incomplete
if it does not contain, at a minimum:
(1) the
name and contact information of the excavator personnel directly involved with
or conducting the excavation at the actual excavation site;
(2) if
available, an alternate name and contact information of the excavator;
(3) a
description and the purpose of the type of work to be done;
(4) the
name of the person for whom the work is being done;
(5) whether
or not the excavation site is pre-marked in white;
(6) an
accurate physical description of the location and size of the excavation site;
reference to a plat of a subdivision shall not by itself be sufficient description;
(7) driving
instructions to a rural excavation site;
(8) spotting
instructions;
(9) any
appropriate remarks regarding access to or hazards at the site;
(10) if
available, GPS coordinates which define the parameters or start and end points
of the actual excavation.
[18.60.5.10 NMAC -
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18.60.5.11 WIDE
AREA LOCATE REQUESTS: An excavator who expects a project to take more
than 15 working days to complete shall either request separate locates which
meet the requirements of Subsection B of 18.60.5.10 NMAC or follow the
conference procedure set forth in this section.
A. If an excavator
expects that an excavation will take more than 15 working days to complete, the
excavator shall contact the one-call notification system to request a wide area
conference a minimum of two working days prior to the wide area conference and
provide the proposed date, time, and location for the conference. The one-call notification system shall process
the request as provided in Subsection K of 18.60.5.8 NMAC.
B. A UFO shall
contact an excavator who requests a wide area conference within two working
days of the issuance of the conference ticket and confirm proposed conference
schedule. A UFO shall be physically
represented at a scheduled wide area conference. If a UFO cannot attend the scheduled wide
area conference, it shall make arrangements to meet
with the excavator who requested the wide area conference not to exceed five
working days of the scheduled wide area conference.
C. At the
conference, the excavator shall develop a written work plan that includes the
minimum information required under Subsection C of 18.60.5.10 NMAC in consensus
with each UFO, which shall be signed by all parties. Updates or revisions to the work plan shall
also be in writing and signed by all parties.
D. After the work plan has been signed
by all parties, an excavator shall request a wide area excavation locate. The one-call notification system shall process
the request as provided in Subsection K of 18.60.5.8 NMAC. The excavation ticket shall reference the
wide area conference ticket number and cite the work plan as the description of
the work to be performed.
E. An excavator
working pursuant to a wide area excavation locate ticket shall request
reaffirmation of the wide area locate ticket every 15 working days. For the purpose of
reaffirmation, a working day begins on the date and time stamped on the ticket
and ends 15 working days from such date and time. The excavator and UFO(s) shall continue to
comply with the approved work plan established per Subsection C of 18.60.5.11
NMAC.
[18.60.5.11 NMAC -
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18.60.5.12 DESIGN
AND BID LOCATE REQUESTS: A project
owner or project engineer shall request information regarding the location of
underground facilities for design projects or bids in accordance with either
Subsection A or B of this section, but may not switch
methods once having made an election unless the existing utilities cannot be
located by the UFO(s) in accordance with the requirements of applicable laws.
A. Physical locates.
(1) A
project owner or project engineer may request a design or bid locate from
one-call notification systems and non-member UFOs.
(2) The
one-call notification system and non-member UFOs for the intended excavation
area shall issue a ticket marked "bid locate" or "design locate"
as appropriate.
(3) UFOs
shall physically mark or clear the location of underground facilities on the
site through a positive response system within two full working days from the
date of the ticket.
(4) If one or more underground
facilities have not been marked and positive response has not been provided, a
project owner or project engineer shall call the one-call notification system
for verification that advance notice was transmitted to the UFO and to provide
notice that the underground facilities have not been located or cleared via a
warning locate request. UFOs shall promptly respond to warning locate requests,
ideally within two hours.
(5) Designers
or bidders, as appropriate, shall capture data from the site within 10 working
days from the end of the two day marking period.
(6) A
project owner or project engineer shall not request relocates or time
extensions for a design or bid locate.
B. Conferences.
(1) A
project owner or project engineer may request a design or bid conference a
minimum of two working days prior to conference from the one-call notification
system and non-member UFOs for the intended excavation area and provide the
proposed date, time, and location for the conference.
(2) A
UFO shall contact the project owner or project engineer within two working days
of the issuance of the conference ticket and confirm the proposed conference
schedule, and if necessary, make arrangements to
reschedule the conference not to exceed five working days from the proposed
conference schedule on the conference ticket.
A UFO shall be physically represented at the scheduled design or bid
conference.
(3) The
one-call notification system for the intended excavation area shall process the
request as provided in Subsection K of 18.60.5.8 NMAC.
(4) UFOs
shall arrange to provide information to designers or bidders within a
reasonable time following the conference, but not to exceed 10 working days.
(5) A
project owner or project engineer and UFOs shall continue with utility
coordination until the design is complete or bid for the project has been
awarded and an excavator requests an excavation locate.
[18.60.5.12 NMAC -
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18.60.5.13 MARKING
EXCAVATION SITES:
A. Excavators. As provided under Subsection B of 18.60.5.10
NMAC, excavators shall mark all proposed excavation sites in accordance with
American public works association (APWA) standards to improve communication
between the excavator and UFO. In
assessing administrative penalties for violation of the Excavation Damage to
Pipelines and Underground Utility Lines Law, Section 62-14-1 et seq. NMSA 1978 and this rule, the
commission may consider whether and how well an excavator marked a proposed
excavation site. Pre-marking a site in
white indicates the actual excavation site (not limits of construction) and,
therefore, will supersede marking instructions provided on locate requests and
be used to determine alleged violations during staff investigations. When an excavator fails to pre-mark the
actual excavation site, UFOs shall mark per the spotting instructions provided
on the locate request and register a positive response indicating the site was
not pre-marked.
B. UFOs.
(1) A
UFO shall mark underground facilities for excavation purposes in accordance
with the APWA standards.
(2) A
UFO shall locate and mark its underground facilities within two full working
days from the effective date of the ticket in accordance with Subsection A of
62-14-5 NMSA 1978.
(3) If
a UFO determines it does not have underground facilities within the proposed limits of
the excavation site, a UFO shall provide positive response to the one-call
notification's positive response registry system and may write "clear"
or "no underground facilities" and the UFO's name at the site in the
appropriate color.
(4) The
locate markings shall be valid for 15 working days from the end of the advance
notice period. For the
purpose of excavation, a working day begins on the work to begin date
and time stamped on the ticket and ends 15 working days from such date and
time.
(5) A
UFO shall provide appropriate positive response to the one-call notification's
positive response registry system for all advance notifications, including wide
area, design, bid, standard, and road maintenance locate requests or
conferences.
(6) If
a UFO fails to mark its underground facility in accordance with the
requirements of applicable laws, the UFO may be liable to the excavator,
project owner, and project engineer in accordance with Subsection C of 62-14-5
NMSA 1978.
[18.60.5.13 NMAC -
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18.60.5.14 IDENTIFYING
UNDERGROUND FACILITIES FOR ROAD MAINTENANCE:
In response to an excavation locate request for road maintenance, a UFO
shall physically mark or locate by marker its underground facilities that are
parallel or cross the road, as provided in Subsection A.
A. Underground
facilities that parallel or cross the road.
(1) Physical locate. A UFO may physically mark the location of all
underground facilities that are parallel or cross the road to be maintained if
the UFO deems the facilities to be in conflict with
the road maintenance activity. If the
UFO deems the facilities not to be in conflict with
the road maintenance activity, then the UFO may "clear" the ticket
with the excavator using the procedure for positive response set forth in
18.60.5.13 NMAC.
(2) Locate by permanent marker. Alternatively, a UFO may use a system of permanent
markers to indicate the location of underground facilities that parallel or cross
the road to be maintained. Such markers
shall:
(a) only
be used for the purposes of road maintenance;
(b) be
durable enough to withstand normal weathering;
(c) be
the same APWA color as is designated for marking the UFO's type of underground
facility; and
(d) have
a decal on the marker specifying the depth of the underground facility at the
marker.
B. A UFO shall be
deemed to have failed to correctly locate or mark its underground facility that
is parallel or crosses a road to be maintained unless it:
(1) maintains
a minimum 18 inches of coverage over the underground facility;
(2) ensures
that the permanent markers are in place;
(3) verifies
the depth of its underground facilities at the permanent marker locations at
least annually; and
(4) ensures
that the decal is visible and the information on it is readable.
[18.60.5.14 NMAC -
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18.60.5.15 EXCAVATION
PROCEDURES:
A. Pre-excavation. Before excavating, an excavator shall
determine whether all underground facilities have been marked.
(1) If
all underground facilities have been marked or cleared through a positive
response system and the advance notice marking period has expired, the
excavator may begin excavating.
(2) If
one or more underground facilities have not been marked and positive response
has not been provided, an excavator shall, prior to commencing excavation, call
the one-call notification system for verification that advance notice was
transmitted to the UFO and to provide notice that the underground facilities
have not been located or cleared via a warning locate request. UFOs shall promptly respond to warning locate
requests ideally within two hours.
B. Excavation.
(1) If,
while excavating, an excavator observes evidence that an unmarked underground
facility may exist, the excavator shall, before excavating in the immediate
area of such evidence:
(a) make
a reasonable effort to identify and contact the UFO and wait until the UFO
marks or clears the immediate area of the evidence; the UFO shall mark or clear
the area within two hours of contact or as expeditiously as possible if the
excavation site is in a rural area;
(b) expose
the underground facility by non-mechanical means or mechanical vacuum
excavation methods.
(2) If
excavation activity encroaches within 18 inches either side of a marking made
by a UFO, an excavator shall, prior to excavating, expose the underground
facility by non-mechanical means or mechanical vacuum excavation methods.
(3) If
the exact subsurface location of the underground facility or utility cannot be
determined by non-mechanical means or mechanical vacuum excavation methods as
required in Subparagraph (a) of Paragraph (1) and (2) of Subsection B of
18.60.5.15 NMAC, the excavator shall contact the UFO directly and UFO shall
work with the excavator to locate and expose the actual subsurface location of
the underground facility or utility. If
the UFO must resort to performing excavation to locate the facility, the UFO
shall perform such excavation within five working days of notice from the
excavator. If requested, the local
one-call notification center shall provide the excavator with the contact
telephone number of the UFO.
(4) If
excavation activity cannot proceed without obliterating all or some of the
markings made by a UFO, an excavator shall provide temporary offset marks or
stakes to retain the information regarding the location of each UFO's
underground facilities.
(5) The
requirement to provide positive response for a facility does not apply to the
homeowner of a residential property.
(6) The
commission encourages excavators to notify the UFO when excavation activity
will be within twenty-five feet of the actual utility marking provided or as
agreed upon by a right of way encroachment agreement or permit for
infrastructure identified by the UFO as critical (i.e., transmission and trunk line
pipelines, fiber optic, power, 911, etc.).
C. Temporary suspension of excavation
activity. If staff determines that
an excavation activity is not in compliance with the requirements of this rule,
and that continued noncompliance may result in injury to persons or damage to
property, staff may suspend the excavation activity until the excavation
activity is brought into compliance with the requirements of this rule and
excavation conditions are safe.
[18.60.5.15 NMAC -
Rp, 18.60.5.15 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.16 EMERGENCY
EXCAVATION AND DAMAGE REPORTING PROCEDURE:
This section applies whenever failure of or damage to underground
facilities or public infrastructure requires emergency excavation as defined in
Subsection E of Section 62-14-2 NMSA 1978 and excavation shall be promptly
commenced, ideally within 24 hours.
A. Excavators: An excavator who damages an underground
facility while excavating with mechanical or non-mechanical equipment shall
exercise prudence and shall:
(1) stop
excavating immediately;
(2) call
911 if appropriate and the operator of the damaged underground facility and 811
to report the damaged facility;
(3) secure
the site and direct people and traffic a safe distance away from the site of
the damage;
(4) not
leave the scene until authorized by an emergency responder or the operator of
the damaged underground facility; an excavator may leave the scene without such
authorization only if the excavator has made reasonable, if unsuccessful,
efforts to contact the affected UFOs and has safely secured the site;
(5) not
resume work within an unsafe distance of the damage until authorized by the
operator of the damaged underground facility.
B. Operators of failed or damaged underground
facilities: The operator of a failed
or damaged underground facility shall exercise prudence and shall:
(1) immediately
respond to a report of damage or failure to its underground facilities and
travel to the site;
(2) prior
to traveling to the site or upon arrival, call the one-call notification system
for the excavation area to request an emergency locate;
(3) make
the site safe and get the emergency situation under control;
(4) locate
its own underground facilities as soon as practical, ideally within two hours;
(5) begin
remedial action to restore service as soon as practical, ideally within 24
hours; and
(6) obtain
a standard excavation locate ticket for repair work beyond resolution of the emergency situation.
C. Operators of failed or damaged public infrastructure:
The entity responsible for the failed or
damaged public infrastructure shall:
(1) call
the one-call notification system for the excavation area to request an
emergency locate;
(2) obtain
an excavation locate ticket for repair work beyond resolution of the emergency situation.
D. One-call notification system: A one-call notification system shall upon
request:
(1) issue
an emergency excavation notice which shall be valid until the emergency is
resolved, or for 48 hours, whichever is longer;
(2) issue
a notice of a reported damage to each affected UFO.
[18.60.5.16 NMAC -
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18.60.5.17 ABUSE
OF THE LAW: A person shall be deemed to have willfully
failed to comply with this rule or Chapter 62, Article 14 NMSA 1978 and shall
be subject to the penalties in Section 62-14-8 NMSA 1978 if the person:
A. requests a
locate for an area that cannot reasonably be excavated in 15 working days;
B. provides
misinformation or withholds information regarding the size of an excavation area;
C. requests locates
that unduly burden a one-call notification system or UFO;
D. requests a
locate for fraudulent reasons;
E. fails to process
locate requests within the requisite timeframe;
F. fails to mark,
or provide positive response for its underground facilities within the
requisite timeframe;
G. fails to
determine if all underground facilities have been marked or cleared;
H. commences
excavation prior to the expiration of the advance notice period;
I. obliterates
markings at an excavation site without providing temporary offset marks or stakes;
J. alters any
record relating to excavation activity;
K. fails to
pre-mark the actual intended excavation route or site(s) as required;
L. fails to report
or file a report of damage within requisite time frame; or
M. commits any other
act that the commission determines violates Chapter 62, Article 14 NMSA 1978 or
this rule.
[18.60.5.17 NMAC -
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18.60.5.18 REPORTS
OF THIRD PARTY DAMAGE:
A. A UFO shall
report to the director or pipeline safety bureau any incident in which the
owner or operator's underground facility is damaged by excavation activities. Such report, where practicable, shall be
submitted using the commission's website at: http://nmprc.state.nm.us/transportation/pipeline-safety.html. For purposes of this subsection, incident is
to be taken in its general sense and is not to be restricted to the definition
given in 49 CFR 191.3.
B. The report shall
be filled out in its entirety and should include any and all
information, such as pre-dig and post-damage photos, the UFO used to determine
probable cause and support or justifies its position.
C. The report shall
be submitted within 30 calendar days of occurrence. Any additional information provided after the
30 day deadline may be considered on a case by case
basis.
D. The UFO shall
make available to the director or staff, within a reasonable time, such
other information or documentation as the director or staff may require
regarding any damage reportable under this section.
[18.60.5.18 NMAC -
Rp, 18.60.5.18 NMAC, 1/15/2019]
18.60.5.19 ALTERNATIVE
DISPUTE RESOLUTION:
A. The commission
encourages owners and operators of underground facilities, project owners,
project engineers, and excavators to privately negotiate and settle disputes
arising from excavation damage to underground facilities and construction or
design expenses related to improper underground facility location.
B. In the event the
parties are unable to resolve such disputes privately, any owner or operator of
underground facilities, project owner, project engineer, or excavator may
request mediation or arbitration from the commission.
C. Staff may
participate in mediation or arbitration proceedings.
D. In mediation and
arbitration proceedings, persons shall be represented in accordance with the requirements
of 18.60.4.11 NMAC.
[18.60.5.19 NMAC -
Rp, 18.60.5.19 NMAC, 1/15/2019; A, 8/9/2022]
18.60.5.20 MEDIATION
OF EXCAVATION DAMAGE DISPUTES:
A. Designation of
mediator. If any of the parties request mediation, the commission shall designate a
mediator. The mediator may be a
permanent or temporary employee of the commission or another state agency or
any other individual acceptable to the parties.
If the parties request a mediator who is not an employee of the
commission, the commission shall not approve the request unless the parties
agree in writing to bear as their own the costs of obtaining the mediator's
services. The mediator shall have no
official, financial, or personal conflict of interest with respect to the
issues in controversy, unless such interest is fully disclosed in writing to
all parties at the time the mediator is assigned by the commission and all
parties agree that the mediator may serve.
The mediator shall not, subsequent to serving
as a mediator in an excavation damage dispute, participate in any subsequent
proceeding in the same cause as a hearing examiner, advisory staff, staff
counsel or expert witness, or as an attorney, expert witness, or representative
of any party to the proceeding.
B. Duties of mediator. The mediator shall notify the parties by
telephone or mail of the time and place of the mediation conference, which will
be held at commission offices unless otherwise directed by the mediator. The notice may direct the parties to send the
mediator, but not other parties, their settlement positions and other necessary
information that could facilitate the mediation conference, including the
results of staff's investigation of the damage.
In addition, the mediator may require counsel to have their clients
present at the mediation conference or accessible by telephone. The mediation conference shall be held within
20 days of the date of the notice unless good cause is shown for an
extension. If the parties are able to reach a settlement of their dispute, in
appropriate cases the mediator shall assist the parties in preparing a written
agreement to reflect that resolution. If
the parties are unable to reach a complete settlement of their dispute, the
mediator shall advise the parties that they may request arbitration or file an
action for civil liability for damages in district court.
C. Inadmissibility of
settlement offers. Offers of
settlement and statements in furtherance of settlement made in
the course of mediation are privileged and, except by agreement among
all parties, shall not be admissible as evidence in any formal hearing before
the commission nor disclosed by the mediator voluntarily or through discovery
or compulsory process.
[18.60.5.20 NMAC -
Rp, 18.60.5.20 NMAC, 1/15/2019]
18.60.5.21 BINDING
ARBITRATION OF EXCAVATION DAMAGE DISPUTES:
A. Request for
arbitration. Any party to a dispute
arising from excavation damage to underground facilities may request binding
arbitration of the dispute. The request
shall be in writing to the commission and shall include a concise statement of
the grounds for the dispute, the remedy sought, and an acknowledgment that the
requesting party agrees to be bound by the decision of the arbitrator. The commission shall forward the request for
arbitration to all other parties and require that they submit a written
response within 10 days of receipt of the commission's letter forwarding the
request.
(1) If
the other parties agree to arbitration of the dispute, they shall include in
their response to the commission a concise statement of their position with regard to the merits of the dispute and an
acknowledgment that they agree to be bound by the decision of the arbitrator.
(2) If
the other parties will not agree to arbitration, they shall so state in their
response.
(3) If
the other parties either fail to respond to a request for arbitration or do not
agree to arbitration, the requesting party retains the right to proceed with an
action for civil liability for damages in district court.
B. Designation of
arbitrator. If all parties agree to
arbitration, the commission shall designate an arbitrator. The arbitrator may be a permanent or
temporary employee of the commission or another state agency or any other
individual who is acceptable to the parties to the dispute. The designated arbitrator shall have no
official, financial or personal conflict of interest with respect to the issues
in controversy, unless such interest is fully disclosed in writing to all
parties at the time of the commission's designation and all parties agree that
the arbitrator may serve. The parties
shall be required to indicate their consent in writing to the designated
arbitrator within ten days of the date of the commission's letter of
designation. If the parties request an
arbitrator who is not an employee of the commission, the commission shall not
approve the request unless the parties agree in writing to bear as their own
the costs of obtaining the arbitrator's services. Any employee of the commission designated to
arbitrate a dispute under these provisions shall not participate in any
subsequent proceeding in the same cause regarding excavation damage to
underground facilities as a hearing examiner, advisory staff, staff counsel, or
expert witness or as an attorney, expert witness, or representative of any
party to the proceeding.
C. Duties of arbitrator.
(1) The
arbitrator shall render a decision in the arbitration proceeding within 60 days
of the date the parties approved the arbitrator, unless good cause exists to
extend the time.
(2) The
arbitrator shall fix a time and place for an arbitration and shall serve notice
of arbitration on all parties at least ten days in advance of the
arbitration. The arbitrator may issue
subpoenas for the attendance of witnesses and for the
production of books, records, documents, and other evidence and shall
have the power to administer oaths. The
parties may offer such evidence and produce such additional evidence as the
arbitrator may deem necessary to an understanding and determination of the
dispute. The arbitrator shall decide the
relevancy and materiality of the evidence offered. The arbitrator shall give
consideration to but shall not be bound by the New Mexico rules of
evidence. No stenographic or electronic
record will be made of the testimony at the hearing unless requested by a
party, who shall bear the cost of the record.
(3) The
arbitrator shall permit discovery only if it will not unduly complicate,
burden, or impede the expeditious and informal nature of the proceeding.
(4) At
the close of or soon after the hearing, the arbitrator will issue a brief
written decision, which need not contain findings of fact and conclusions of
law. The arbitrator's decision will be
binding on the parties, but will not be deemed a
decision of the commission and shall have no precedential effect.
D. Inadmissibility of
settlement offers. Unless agreed to
by all the parties, no statements, admissions, or offers of settlement made during the course of arbitration proceedings shall be
admissible as evidence in any formal proceeding nor shall the arbitrator
disclose the same voluntarily or through discovery or compulsory process. Nothing in this section, however, shall
preclude the arbitrator from issuing a brief written decision describing his
conclusions and the bases for them.
[18.60.5.21 NMAC -
Rp, 18.60.5.21 NMAC, 1/15/2019]
18.60.5.22 WAIVER
OR VARIANCE FROM RULE REQUIREMENTS:
A. The commission
may, in its discretion, waive or vary any requirement of this rule whenever the
commission finds that such waiver or variance would be in the public interest.
B. An excavator,
project owner, project engineer, one-call notification system, or UFO that
cannot meet one or more of the requirements of this rule may petition the
commission for a waiver or variance. The
petition shall be in writing and shall include:
(1) a
list of those requirements which the excavator, project owner, project
engineer, one-call notification system, or UFO wishes to have waived or varied;
(2) an
explanation and description of the specific conditions which prevent the
requirement from being met; and,
(3) a
statement of steps already taken and to be taken, with projected time limits
for each step, in attempting to meet the requirements.
C. The commission
may order a hearing on the merits of the petition.
D. An excavator, project
owner, project engineer, one-call notification system, or UFO shall be required
to comply with requirements it has petitioned to have waived or varied until
the commission has issued an order on the merits of the petition, unless the
commission or its designee grants an interim waiver of or variance from one of
more of the requirements that are the subject of the petition.
[18.60.5.22 NMAC -
Rp, 18.60.5.22 NMAC, 1/15/2019; A, 8/9/2022]
HISTORY OF 18.60.5 NMAC:
Pre-NMAC History:
The material in this rule was derived from that previously filed with
the State Records Center.
SCC 69-29, Order
No. 2966, Cause No.516, filed 9/24/1969.
SCC 71-2, Amended
Order No. 2966, Cause No.516, filed 3/18/1971.
SCC 72-1, Amended
Order No. 3096, Cause No.516, filed 1/2/1972.
SCC 77-2, Order
No. 3096-C, Docket No.750, filed 3/4/1977.
SCC 79-4,
Regulations Relating to Minimum Safety Standards for the Transportation of
Natural and other Gas by Pipeline, filed 6/27/1979.
SCC 84-9-PL,
Regulation for the Transportation of Natural and other Gas by Pipeline -
Minimum Standards, filed 11/26/1984.
History of Repealed Material: 18 NMAC 60.1, General Provisions; 18 NMAC
60.2, Reports Required for New Master Meters and Third Party Damage; 18 NMAC
60.3, Requirement of Filing of Procedural Manual; 18 NMAC 60.4, Classification
and Repair of Leaks; 18 NMAC 60.5, Pipeline Safety Program Procedures; 18 NMAC
60.6, Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards: Annual and Incident Reports; 18 NMAC 60.7,
Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards; 18 NMAC
60.8, Transportation of Hazardous Liquids by Pipeline; 18 NMAC 60.9, Pipeline
Safety Regulations: Drugs & Alcohol
Testing; 18 NMAC 60.10, Procedures for Transportation Workplace Drug &
Alcohol Testing Programs (all filed 5/1/1996) repealed 7/1/2003.
18.60.5 NMAC,
Pipeline Safety Excavation Damage Prevention, filed 6/27/2006 - Repealed
effective 8/15/2012.
18.60.5 NMAC,
Pipeline Safety Excavation Damage Prevention, filed 8/15/2012- Repealed
effective 12/30/2014.
18.60.5 NMAC,
Pipeline Safety Excavation Damage Prevention, filed 12/15/2014- Repealed
effective 1/15/2019.
Other History:
SCC 84-9-PL,
Regulation for the Transportation of Natural and other Gas by Pipeline -
Minimum Standards, filed 11/26/1984, was renumbered into first version of the
New Mexico Administrative Code as 18 NMAC 60.1 through 18 NMAC 60.10, effective
6/5/1996.
18 NMAC 60.1
through 18 NMAC 60.10 (all filed 5/1/1996), were replaced by 18.60.2 NMAC,
Pipeline Safety, effective 7/1/2003.
Those applicable portions of 18.60.2 NMAC,
Pipeline Safety (filed 6/16/2003) replaced by 18.60.5 NMAC, Pipeline Safety
Excavation Damage Prevention, effective 7/17/2006.
18.60.5 NMAC,
Pipeline Safety Excavation Damage Prevention, filed 12/15/2014 was replaced by
18.60.5 NMAC, Pipeline Safety Excavation Damage Prevention effective 1/15/2019.