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Office of the Revisor of Statutes

CHAPTER 7560, EXCAVATION NOTICE SYSTEM

OFFICE OF PIPELINE SAFETY

Table of Parts
Part Title
7560.0100 DEFINITIONS.
7560.0125 ABANDONED AND OUT-OF-SERVICE FACILITIES.
7560.0150 PUBLIC RIGHT-OF-WAY MAPPING AND INSTALLATION.
7560.0200 [Repealed, 24 SR 448]
7560.0225 EXCAVATOR RESPONSIBILITIES REGARDING A LOCATE.
7560.0250 LOCATE STANDARDS.
7560.0300 OPERATOR PARTICIPATES AND SHARES COSTS.
7560.0325 EMERGENCY EXCAVATION NOTICES.
7560.0350 EXCAVATION NOTICE REQUESTING MEET.
7560.0375 LOCATING A SERVICE LATERAL.
7560.0400 CITATIONS.
7560.0500 RESPONSE OPTIONS.
7560.0600 DIRECTOR REVIEW.
7560.0700 CONSENT ORDER.
7560.0800 CIVIL PENALTIES.

7560.0100 DEFINITIONS.

Subpart 1.

Scope.

The terms used in this chapter have the meanings given them. Terms not defined in this part have the meanings given them in Minnesota Statutes, section 216D.01.

Subp. 1a.

Abandoned facility.

"Abandoned facility" means an underground facility that is no longer in service and is physically disconnected from a portion of the operating facility that is in use or still carries service. An abandoned facility has been deemed abandoned by the operator.

Subp. 2.

Director.

"Director" means the director of the Office of Pipeline Safety of the Minnesota Department of Public Safety.

Subp. 3.

Good cause to believe.

"Good cause to believe" means grounds put forth in good faith that are not arbitrary, irrational, unreasonable, or irrelevant and that are based on at least one of the following sources:

A.

information from a person;

B.

facts supplied by the notification center defined in Minnesota Statutes, section 216D.01, subdivision 8;

C.

facts of which the director or an agent of the director has personal knowledge; and

D.

information provided by excavators or operators.

Subp. 4.

Locate.

"Locate" means an operator's markings of an underground facility.

Subp. 5.

[Renumbered as subp 8]

Subp. 5a.

[Renumbered as subp 9]

Subp. 6.

[Renumbered as subp 11]

Subp. 7.

Meet.

When used as a noun in this chapter, "meet" refers to a meeting at the site of proposed excavation requested at the time of notice by the excavator with all affected underground facility operators to further clarify the precise geographic location of excavation, schedule locating, propose future contacts, and share other information concerning the excavation and facilities.

Subp. 8.

Office.

"Office" means the Office of Pipeline Safety of the Minnesota Department of Public Safety.

Subp. 9.

Out-of-service facility.

"Out-of-service facility" means an underground facility that is no longer maintained and is not intended for future use, but has not been deemed abandoned. An out-of-service facility may still be connected to a portion of the operating facility that is in use or still carries service.

Subp. 10.

Public right-of-way.

"Public right-of-way" means the area on, below, or above a public roadway, highway, street, cartway, bicycle lane, and sidewalk in which a government unit has an interest, including other rights-of-way dedicated for travel purposes and utility easements of government units.

Subp. 11.

Remuneration.

"Remuneration" means direct or indirect compensation or consideration paid to the person or the person's agent, employer, employee, subcontractor, or contractor. A person who excavates as part of the person's duties as an employee, employer, agent, subcontractor, or contractor is considered to be acting for remuneration.

Subp. 12.

Service lateral.

"Service lateral" means an underground facility that is used to transmit, distribute, or furnish gas, electricity, communications, or water from a common source to an end-use customer. A service lateral is also an underground facility that is used in the removal of wastewater from a customer's premises.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.60; 299F.641; 299J.04

History:

16 SR 135; 24 SR 448; 29 SR 1503

Published Electronically:

July 20, 2005

7560.0125 ABANDONED AND OUT-OF-SERVICE FACILITIES.

Subpart 1.

Duty of operators to provide readily available information.

Operators shall provide readily available information, as shown on maps, drawings, diagrams, or other records used in the normal course of business, on the approximate location of abandoned and out-of-service facilities to an excavator by the excavation date and time noted on the excavation or location notice unless otherwise agreed between the excavator and the operator. An operator fulfills an obligation to provide information on these facilities by doing one or more of the following:

A.

locating and marking the approximate location of the facility according to the current color code standard used by the American Public Works Association, as required in Minnesota Statutes, section 216D.04, subdivision 3, with an abandoned or out-of-service facility identified by an uppercase A surrounded by a circle;

B.

providing informational flags at the area of proposed excavation;

C.

communicating information verbally; or

D.

providing copies of maps, diagrams, or records.

Subp. 2.

Duty to notify operator.

An excavator shall notify the operator:

A.

before moving, removing, or otherwise altering a facility that is thought to be abandoned or out of service; or

B.

if damage to the facility occurs, pursuant to Minnesota Statutes, section 216D.01, subdivision 2.

Subp. 3.

Verification of abandoned or out-of-service facility.

Upon receipt of notification by an excavator pursuant to subpart 2, an operator shall verify that an underground facility is abandoned or out of service, by either reference to installation records, testing, or other comparable standard of verification, before an excavator is allowed to move, remove, or otherwise alter an underground facility.

Subp. 4.

Liability.

An operator providing information pursuant to Minnesota Statutes, section 216D.04, subdivision 3, is not responsible to any person for any costs, claims, or damages for information provided in good faith regarding abandoned and out-of-service underground facilities.

Statutory Authority:

MS s 14.06; 216D.08; 299J.04; 299F.60

History:

24 SR 448

Published Electronically:

July 20, 2005

7560.0150 PUBLIC RIGHT-OF-WAY MAPPING AND INSTALLATION.

Subpart 1.

Duty of operator to map.

After December 31, 2005, an operator shall maintain a map, a diagram, a drawing, or geospatial information regarding the location of its underground facility within a public right-of-way installed after that date.

Subp. 2.

Duty to install locating wire.

After December 31, 2005, an operator shall install a locating wire or have an equally effective means of marking the location of each nonconductive underground facility within a public right-of-way installed after that date. This requirement does not apply when making minor repairs to an existing nonconductive facility. As applied to this chapter, "minor repairs" means repairs to or partial replacement of portions of existing service laterals located within a public right-of-way for purposes of routine maintenance and upkeep.

Statutory Authority:

MS s 299J.04

History:

29 SR 1503

Published Electronically:

July 20, 2005

7560.0200

[Repealed, 24 SR 448]

Published Electronically:

July 20, 2005

7560.0225 EXCAVATOR RESPONSIBILITIES REGARDING A LOCATE.

Subpart 1.

[Repealed, 29 SR 1503]

Subp. 2.

Responsibility to protect and preserve.

The excavator is responsible for reasonably protecting and preserving a locate until no longer required for proper and safe excavation near the underground facility. If the excavator has reason to believe a locate is obliterated, obscured, missing, or incorrect, the excavator shall notify the facility operator or notification center in order to have an operator verify, refresh, or re-mark the locate.

Subp. 3.

Use of locate.

A locate is valid for 14 days from the excavation commencement time stated on the excavation or location notice, unless the excavator has made previous arrangements with the operators affected to periodically verify, refresh, or re-mark the locate.

Statutory Authority:

MS s 14.06; 216D.08; 299J.04; 299F.60

History:

24 SR 448; 29 SR 1503

Published Electronically:

July 20, 2005

7560.0250 LOCATE STANDARDS.

Subpart 1.

Facility locate.

Unless otherwise agreed to between the excavator and operator, an operator shall locate an underground facility using stakes, flags, paint, or other suitable materials in varying combinations dependent upon the surface. The locate must be in sufficient detail to clearly identify the approximate route of the underground facility. The locate must also include:

A.

name, abbreviation, or logo of the operator when more than one operator listed on the notice uses the same color markings;

B.

width of the underground facility if it is greater than eight inches; and

C.

number of underground facilities if greater than one.

Subp. 2.

Operator duties in no conflict situation.

After December 31, 2005, an operator who receives notice and determines that an underground facility is not in conflict with the proposed excavation shall complete one or more of the following:

A.

mark the area "NO" followed by the operator's name, abbreviation, or logo in the color code of the underground facility not in conflict;

B.

place a clear plastic flag at the area that:

(1)

states "N/C" or "NO CONFLICT" in lettering matching the color code of the underground facility that is not in conflict; and

(2)

includes the operator's name, abbreviation, or logo, the date, a contact telephone number, and the ticket number; or

C.

contact the notification center through procedures required by the notification center and indicate that there are no underground facilities in conflict with the proposed excavation and that no markings or flags were left at the proposed excavation site.

Subp. 3.

Placement of flags or markings.

If using N/C (no conflict) flags or markings pursuant to subpart 2, an operator shall place the flags or markings in a location that can be readily observed by an excavator. When an area of proposed excavation is delineated by the use of white markings, an operator shall place the N/C flags or markings within, or as near as practicable to, the delineated area.

Subp. 4.

Duties of notification center.

After December 31, 2005, the notification center shall make the information received under subpart 2 available to the excavator before the start date and time on the notice. The notification center may fulfill this requirement by making the information accessible through one or more Internet addresses, by transmitting the information to a continuously working facsimile machine maintained by the excavator, or by other methodology developed by the notification center. The notification center shall make available the information received by operators pursuant to this section through an electronic means. The notification center is not required by this subpart to contact an excavator verbally via telephone.

Statutory Authority:

MS s 299J.04

History:

29 SR 1503

Published Electronically:

July 20, 2005

7560.0300 OPERATOR PARTICIPATES AND SHARES COSTS.

An operator shall participate in and share the costs of the one call excavation notice system by:

A.

submitting the information required by the notification center to allow the center to notify the operator of excavation activity;

B.

updating the information provided to the notification center on a timely basis;

C.

installing and paying for equipment reasonably requested by the notification center to facilitate receipt of notice of excavation from the center;

D.

paying the costs charged by the notification center on a timely basis; and

E.

receiving and responding to excavation notices, including emergency notices, as required by Minnesota Statutes, chapter 216D.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.641

History:

16 SR 135

Published Electronically:

July 20, 2005

7560.0325 EMERGENCY EXCAVATION NOTICES.

Subpart 1.

Duty of excavator to provide notice.

An excavator shall provide notice to the notification center before commencing an emergency excavation, unless subpart 2 applies. All emergency notices, regardless whether made prior to excavation, must be verbal or in a manner accepted by the notification center. In addition to the information required by the notification center, the notice must also contain:

A.

a description of the situation requiring the emergency excavation;

B.

the precise location of the proposed area of the emergency excavation;

C.

at least one continuously staffed telephone number where the excavator can be contacted by the operator throughout the emergency; and

D.

the excavation start date and time if the need for excavation is not immediate.

Subp. 2.

Excavating before notice.

If an emergency is such that providing notice or waiting for an operator would result in an undue risk to life, health, or significant loss of property, the excavator may excavate without providing prior notice or waiting for an operator to mark an underground facility. In this situation, the excavator shall provide notice as soon as practicable and take all reasonable precautions to avoid or minimize damage. Excavation prior to notice under this subpart does not relieve an excavator from any responsibility for damage to an underground facility pursuant to Minnesota Statutes, section 216D.06.

Subp. 3.

Emergency notice requesting immediate response.

Upon receiving an emergency excavation notice requesting an immediate response, an operator shall:

A.

attempt to contact the excavator within one hour at the telephone number provided in subpart 1, item C, to provide any information concerning facilities at or near the area of excavation including an anticipated response time; and

B.

locate and mark the underground facility within three hours of notice unless:

(1)

otherwise agreed between the parties;

(2)

the operator notifies the excavator that not locating does not present an immediate danger to life or health, or a significant loss of property; or

(3)

there is an event or situation that cannot be reasonably anticipated or controlled by the operator.

Subp. 4.

Emergency notice requesting scheduled response.

Upon receiving an emergency excavation notice that does not require an immediate response, and before the scheduled excavation start date and time, an operator shall:

A.

locate and mark the underground facility, unless otherwise agreed between the parties; or

B.

notify the excavator at the telephone number provided in subpart 1, item C, that there is not an underground facility within the area of proposed excavation.

For purposes of this subpart, a requested start time of three hours or less from the time notice is provided to the center is considered an emergency notice requesting immediate response under subpart 3.

Statutory Authority:

MS s 299J.04

History:

29 SR 1503

Published Electronically:

July 20, 2005

7560.0350 EXCAVATION NOTICE REQUESTING MEET.

Subpart 1.

Excavator duties.

When requesting a meet through the notification center, an excavator must provide at least one contact name and telephone number to assist in facilitating the meet. An excavator shall contact the notification center to cancel or reschedule the meet and the notification center shall relay this information to the affected operators. When a meet is requested, an excavator's notice must include the entire geographic area of the proposed excavation and the specific location of the meet. This part does not relieve an excavator from the duty to provide a precise geographic location of the proposed area of excavation, or to use white markings except where it can be shown that to do so is not practical.

Subp. 2.

Operator duties.

When a meet is requested, an affected operator shall make a reasonable effort to attend the meet at the proposed date and time, or contact the excavator before the meet and reschedule for a mutually agreed date and time.

Subp. 3.

Excavation start date and time.

When a meet is requested, the meet date and time must be at least 48 hours after notice is provided, excluding Saturdays, Sundays, and holidays, and the excavation start date and time must be at least 24 hours after the proposed meet date and time specified on the notice, excluding Saturdays, Sundays, and holidays. This subpart does not apply if these matters are provided for in a written agreement with all affected operators.

Subp. 4.

Meet request documentation.

An excavator shall maintain written documentation of each meet with an underground facility operator or representative. This documentation must be kept for the duration of the excavation conducted under the notice. The documentation must include:

A.

the date and time of each meet;

B.

the names, company affiliations, and contact information of the attendees of each meet;

C.

a diagram, sketch, or description of the precise excavation locations, dates, and times; and

D.

the agreed schedule of any future meets or communications.

Statutory Authority:

MS s 299J.04

History:

29 SR 1503

Published Electronically:

July 20, 2005

7560.0375 LOCATING A SERVICE LATERAL.

Subpart 1.

Operator duties.

Unless otherwise agreed, an underground facility operator shall locate a service lateral before the start date and time on the notice and in accordance with items A through C:

A.

An operator of a natural gas, propane, or electric facility shall locate a service lateral up to the meter or the connection to a customer's underground facility, whichever is closer to the end-use customer. If the meter or connection to the customer's underground facility is within a public right-of-way, at a minimum the operator shall locate that portion of the service lateral within the public right-of-way up to the point where the service lateral first leaves the public right-of-way.

B.

An operator of a communication facility shall locate a service lateral up to the entry of the first building. If the service lateral does not enter a building, the operator shall locate up to the utilization equipment, fence, or wall that surrounds the equipment.

C.

After December 31, 2005, an operator of a sewage or water facility, at a minimum, shall locate that portion of the service lateral within a public right-of-way installed after that date up to the point where the service lateral first leaves the public right-of-way. The operator shall either locate or provide information as shown on maps, drawings, diagrams, or other records, on the location of a sewer or water service lateral installed before January 1, 2006. If no information is available on a sewer or water service lateral installed before January 1, 2006, then notifying the excavator that no information exists fulfills the requirements of this section.

Subp. 2.

Exception.

An operator is not required to locate a service lateral of a customer who currently participates in the statewide notification system, provided the customer and operator mutually agree that the customer will assume locate responsibilities. The agreement must be in writing.

Statutory Authority:

MS s 299J.04

History:

29 SR 1503

Published Electronically:

July 20, 2005

7560.0400 CITATIONS.

Subpart 1.

Notice of violation.

The office shall issue a notice of probable violation when the office has good cause to believe a violation of Minnesota Statutes, sections 216D.01 to 216D.09 or this chapter has occurred.

Subp. 2.

Contents of notice of violation.

A notice of violation must include:

A.

a statement of the statute or rule allegedly violated by the person and a description of the evidence on which the allegation is based;

B.

notice of response options available to the person cited;

C.

notice that the person has 30 days in which to respond;

D.

notice that failure to respond within 30 days precludes administrative review under this chapter; and

E.

if a civil penalty is proposed, the amount of the proposed civil penalty and the maximum civil penalty applicable under law.

Subp. 3.

Receipt of notice.

The notice of violation is deemed received three days after mailing to the person's last known address.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.60; 299F.641; 299J.04

History:

16 SR 135; 24 SR 448

Published Electronically:

July 20, 2005

7560.0500 RESPONSE OPTIONS.

The person shall respond to the notice of violation in the following way:

A.

When the notice contains a proposed compliance order, the person shall:

(1)

agree to the proposed compliance order;

(2)

request the execution of a consent order;

(3)

object to the proposed compliance order and submit written explanations, information, or other materials in answer to the allegations in the notice; or

(4)

request the office to initiate a hearing under Minnesota Statutes, sections 14.50 to 14.69.

B.

When the notice contains a proposed civil penalty, the person shall:

(1)

pay the penalty and close the case;

(2)

submit an offer in compromise of the proposed civil penalty;

(3)

submit a written explanation, information, or other material in answer to the allegations or in mitigation of the proposed civil penalty; or

(4)

request the office to initiate a hearing under Minnesota Statutes, sections 14.50 to 14.69.

C.

Failure to respond in writing within 30 days precludes administrative review under this chapter. A final order will be issued and penalties will be forwarded for collection.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.60; 299F.641; 299J.04

History:

16 SR 135; 24 SR 448

Published Electronically:

July 20, 2005

7560.0600 DIRECTOR REVIEW.

If the person objects to the proposed civil penalty or compliance order and submits written explanations, information, or other materials in response to a notice of violation, within the time specified in part 7560.0500, the director shall review the submissions and determine whether to negotiate further, to change or withdraw the notice of violation, or to initiate a hearing under Minnesota Statutes, sections 14.50 to 14.69.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.60; 299F.641; 299J.04

History:

16 SR 135; 24 SR 448

Published Electronically:

July 20, 2005

7560.0700 CONSENT ORDER.

An executed consent order must contain:

A.

an admission by the person of the jurisdictional facts;

B.

a waiver of further procedural steps and the right to seek judicial or administrative review or otherwise challenge or contest the validity of the consent order; and

C.

an agreement that the notice of violation may be used to construe the terms of the consent order.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.641

History:

16 SR 135

Published Electronically:

July 20, 2005

7560.0800 CIVIL PENALTIES.

Subpart 1.

Proceedings against excavators.

When the office has good cause to believe that an excavator is engaging or has engaged in conduct that violates Minnesota Statutes, section 216D.04, subdivision 1, 2, or 3; 216D.05, clause (1), (2), (3), or (4); or 216D.06, subdivision 1, or a rule adopted under Minnesota Statutes, section 216D.08, subdivision 4, the office, if appropriate, shall negotiate a civil penalty under Minnesota Statutes, section 216D.08, subdivision 2. A penalty imposed under Minnesota Statutes, section 216D.08, is subject to the contested case and judicial review provisions of Minnesota Statutes, chapter 14. An operator who engages or has engaged in excavation that violates Minnesota Statutes, chapter 216D, is subject to the proceedings specified in subpart 2 and is subject to the penalties specified in subpart 4, item B or C.

Subp. 2.

Proceedings against underground facility operators.

The office may negotiate a civil penalty under item A or B.

A.

When the office has good cause to believe that an underground facility operator, other than an operator set forth in item B, is engaging or has engaged in conduct that violates Minnesota Statutes, sections 216D.01 to 216D.07, or a rule adopted under Minnesota Statutes, section 216D.08, subdivision 4, the office, if appropriate, shall negotiate a civil penalty under Minnesota Statutes, section 216D.08, subdivision 2. A penalty imposed under Minnesota Statutes, section 216D.08, is subject to the contested case and judicial review provisions of Minnesota Statutes, chapter 14.

B.

When the office has good cause to believe that an operator who engages in the transportation of gas or hazardous liquids or who owns or operates a gas or hazardous liquid pipeline facility is engaging or has engaged in conduct that violates Minnesota Statutes, sections 299F.56 to 299F.641, or a rule adopted under Minnesota Statutes, section 299F.60, subdivision 5, the office, if appropriate, shall negotiate a civil penalty under Minnesota Statutes, section 299F.60, subdivision 2. A penalty imposed under Minnesota Statutes, section 299F.60, is subject to the contested case and judicial review provisions of Minnesota Statutes, chapter 14.

Subp. 3.

Assessment considerations.

In assessing a civil penalty under this part, the office shall consider the following factors:

A.

the nature, circumstances, and gravity of the violation;

B.

the degree of the person's culpability;

C.

the person's history of previous offenses;

D.

the person's ability to pay;

E.

good faith on the part of the person in attempting to remedy the cause of the violation;

F.

the effect of the penalty on the person's ability to continue in business; and

G.

past reports of damage to an underground facility by a person.

Subp. 4.

Maximum penalties.

For the purposes of this part, penalties imposed under this part must not exceed the limits in items A to C.

A.

Penalties imposed against excavators must not exceed $1,000 for each violation per day of violation.

B.

Penalties imposed against underground facility operators, other than an operator set forth in item C, must not exceed $1,000 for each violation per day of violation.

C.

Penalties imposed against an operator who engages in the transportation of gas or hazardous liquids or who owns or operates a gas or hazardous liquid pipeline facility must not exceed $10,000 for each violation for each day that the violation persists, except that the maximum civil penalty must not exceed $500,000 for a related series of violations.

Subp. 5.

Payment procedure.

The person shall pay a civil penalty that has been proposed, assessed, or compromised by submitting to the office a check or money order in the correct amount, payable to the commissioner of public safety.

Statutory Authority:

MS s 14.06; 216D.08; 299F.56; 299F.60; 299F.641; 299J.04

History:

16 SR 135; 24 SR 448

Published Electronically:

July 20, 2005