65-407-895 Me. Code R. § 7

Current through 2024-25, June 19, 2024

Section 407-895-7 - COMMISSION ACTIVITIES

A.Monitoring. The Commission may require operators, excavators, or the Dig Safe System to report information that the Commission determines is needed to monitor the operation of the underground facilities damage program, or to hear and resolve complaints concerning failure to comply with the provisions of 23 M.R.S.A. §3360-A (the Dig Safe Law) or this rule.

A-1.OKTODIG database. The Commission shall develop and maintain a database for excavator reference listing the non-member operators that have registered with the Commission as having underground facilities and indicating those municipalities, townships or other civil divisions or territories of the State in which the underground facilities are located, and indicating those in which member operators do not have underground facilities.The Commission will make the OKTODIG database accessible by telephone and internet or by other reasonable means. The Commission will update the OKTODIG database upon notification by anoperator of the presence of underground facilities in a municipality

B.Enforcement Action Procedure. The Commission shall use the following process when it initiates an enforcement action:

1.Notice of enforcement investigation

a.Preliminary incident investigation. The Commission staff shall engage in a preliminary investigation regarding any potential violation of the Dig Safe Law or rules. The preliminary investigation shall include a good faith effort to contact the potential violator and afford that person an opportunity to discuss the matter prior to the issuance of a Notice of Enforcement Investigation (NOEI). In addition, the preliminary investigation shall include the Commission staff assessing the number of excavations and markings undertaken by the potential violator within the previous 12 months, including which excavations and markings resulted in Dig Safe violations and which excavations or markings resulted in successfully completed excavations. Nothing herein shall preclude the issuance of a NOEI if a person cannot be located with reasonable effort or fails to respond to a communication from the staff.

b.Potential violation. If the Commission finds evidence of a potential violation of the Dig Safe Law ( 23 M.R.S.A. §3360-A ) or this rule, it shall issue a NOEI to the respondent. The Commission may delegate the decision concerning the issuance of a NOEI to its staff.

c.Content of notice. The NOEI shall state the name of the respondent, the factual basis for the alleged violation, and the amount of the administrative penalty recommended to resolve the matter.

i. the specific subsection of 23 M.R.S.A. §3360-A(6-C) that may have been violated;

ii. whether and to what extent there was damage to property;

iii. whether and to what extent there was injury to a person or persons;

iv. the number of violations of the dig safe law or rules by the respondent in the past 12 months;

v. whether the respondent has been required to attend mandatory training sessions within the past 12 months for a violation of the same section of the law or rule that is the subject of the NOEI;

vi. where applicable, an explanation of the legal basis for determining the respondent acted in a negligent or reckless manner;

vii. whether Commission staff is recommending mandatory training or an administrative penalty; and

ix. where applicable, the amount of administrative penalty recommended to resolve the matter.

d.Right to contest. The NOEI shall state that the respondent has a right to contest the allegation of potential violation by requesting, in writing within 30 days, an informal review or a formal hearing.

e.Default. If the respondent fails to request an informal review of the NOEI within 30 days of its receipt, the respondent shall be deemed, upon issuance of an appropriate Commission order, to have defaulted and to have committed the violations alleged. A Commission order on default shall be treated as a finding of a violation for purposes of future applications of this rule.

f.Penalty. If the respondent is declared to have defaulted by a Commission order, the respondent shall, upon issuance of the Commission order be liable to pay the administrative penalty or take the action designated in the NOEI unless the Commission orders otherwise. The Commission may not impose a greater administrative penalty than contained in the NOEI without holding an adjudicatory hearing or obtaining the consent of the respondent. The Commission may reduce the penalty or modify any required remedial action as it determines is warranted.

2.Informal review

a.Staff review. If a respondent contests a NOEI, a staff member designated by the Commission shall conduct an informal review. The review shall consist of an informal conference or an analysis of the respondent's written reply, if any, or both. At the request of the respondent, the staff member designated by the Commission shall waive the informal conference.

b.Date for informal conference. The informal conference, if not waived, shall be scheduled no less than 21 days, and no more than 60 days, from the issue date of the NOEI.

c.Written reply. The respondent may file a written reply with the Commission on or before the day scheduled for the informal conference. The respondent or the respondent's designee must sign the written reply and shall include a statement of all relevant facts and authority and the basis for respondent's dispute of the alleged violation.

d.Informal conference

i. At the informal conference, the respondent shall have the right to be represented by an attorney or other person, to present evidence and make arguments in support of respondent's' position.

ii. The Commission shall make available to the respondent any evidence that indicates that the respondent may have violated these rules or 23 M.R.S.A. §3360-A.

iii. The Commission may require any person who may have information relevant to determining responsibility for a damage prevention incident to attend the informal conference, and/or to provide documentation or other evidence.

3.Recommended decision

a. Following the informal conference or the waiver of the informal conference, the Commission staff member shall issue in writing, a recommended decision indicating whether or not the respondent has violated the Dig Safe Law or these rules and the basis for that conclusion, and the recommended disposition.

b. The recommended decision will be sent to the respondent by mail, return receipt requested and forwarded to the Commission.

c. If the recommended decision is adverse to the respondent, the respondent may request an adjudicatory hearing.

4.Adjudicatory hearing

a.Election. A respondent may request an adjudicatory hearing. Such request must be made in writing no later than 30 days of the date of receipt of the Staff's recommended decision and shall identify the findings or conclusions in the recommended decision with which the respondent disagrees and indicate the respondent's position on these matters.

b.Failure to request hearing. A respondent that fails to make a timely request for an adjudicatory hearing shall be liable to pay the administrative penalty or take the remedial action designated in the staff's recommended decision upon issuance of a Commission order. Unless otherwise ordered, the Commission will consider this order as a finding of a violation for purposes of future applications of this rule. The Commission may not impose a greater administrative penalty than contained in the NOEI without holding an adjudicatory hearing or obtaining the consent of the respondent. The Commission may reduce the penalty or modify any required remedial action as it determines is warranted.

c.Hearing. The adjudicatory hearing shall be a de novo hearing and shall be conducted in accordance with 5 M.R.S.A. §§9051 - 9064.

5. Remedial orders. After considering all of the evidence, if the Commission finds that a violation has occurred, it may issue a remedial order.

a.Content. The remedial order shall set forth the factual and legal basis of the Commission's findings and may direct the respondent to take any action, including the payment of an administrative penalty, as authorized by this rule.

b.Effect. A remedial order issued by the Commission shall have the same effect as any order issued by the Commission.

6.Consent agreements. Notwithstanding any other provision of this rule, the Commission may at any time resolve an alleged violation with a consent agreement.

a.Content. A consent agreement must be signed by the respondent, or a duly authorized representative, and must indicate that the respondent does not contest the imposition of the penalties set forth in the NOEI.

b.Order. A consent agreement is effective only if approved by the Commission through the issuance of an order.

c.Effect of consent. Signing a consent agreement shall not be taken as admission to, or agreement with, the legal conclusions set forth in the NOEI. It shall, however, act as an agreement that the underlying incident shall be treated as a violation of the dig safe laws and rules for the purpose of this rule.

C.Commission action

1. In all cases in which respondent has not requested an adjudicatory hearing, the Commission will consider the evidence along with the proposed disposition (uncontested NOEI or staff's recommended decision, or consent agreement), in deliberative session, and take one of the following actions:

a. If the proposed disposition finds that respondent did not commit a violation, the Commission may, by order,

i. accept that finding and take no further action, or

ii. reject that finding and notify the respondent that the matter will be scheduled for an adjudicatory hearing and decision.

b. If the proposed disposition finds that respondent did commit a violation and the respondent agrees to the proposed disposition, the Commission may, by order,

i. Accept the finding and order an equal or lesser penalty or disposition without giving respondent further notice,

ii. Accept the finding but not the disposition and notify the respondent that it has set the matter for adjudicatory hearing to consider a higher penalty or more burdensome disposition, or

iii. Reject the finding and proposed disposition and dismiss the NIPV or notify the respondent that it has set the matter for adjudicatory hearing.

2. In cases in which the Commission has held an adjudicatory hearing, the Commission will consider the evidence in deliberative session and determine whether respondent has violated the Dig Safe Law or this rule.

a. If the Commission finds no violation, it will dismiss the NIPV and take no further action.

b. If the Commission finds that respondent has committed a violation, it may impose any penalty authorized by law.

65-407 C.M.R. ch. 895, § 7