The following information contains the wording of Title 18, Chapter 60 NMAC as adopted July 17, 2006.
AN ACT
Relating to pipelines and underground utility lines;
providing for regulation of excavation near or of pipelines and underground
utility lines.
TITLE 18 TRANSPORTATION AND HIGHWAYS
CHAPTER 60 PIPELINE CONSTRUCTION AND MAINTENANCE
PART 2 PIPELINE SAFETY GENERAL PROVISIONS
18.60.2.1 ISSUING AGENCY: New Mexico Public Regulation Commission.
[18.60.2.1 NMAC - N, 7-1-06]
18.60.2.2 SCOPE: This rule applies to all owners and operators of gas and hazardous liquid pipelines and underground facilities, excavators, and one-call notification systems in New Mexico subject to the jurisdiction of the commission pursuant to applicable laws.
[18.60.2.21 NMAC - N, 7-1-06]
18.60.2.3 STATUTORY AUTHORITY: Sections 8-8-4, 62-14-9.1, 62-14-10, and 70-3-13 NMSA 1978.
[18.60.2.3 NMAC - N, 7-1-06]
18.60.2.4 DURATION: Permanent.
[18.60.2.4 NMAC - N, 7-1-06]
18.60.2.5 EFFECTIVE DATE: July 1, 2006, unless a later date is cited at the end of a section.
[18.60.2.5 NMAC - N, 7-1-06]
18.60.2.6 OBJECTIVE: The purpose of this rule is to implement Chapter 62, Article 14 NMSA 1978, and the Pipeline Safety Act, Sections 70-3-11 to 70-3-20 NMSA 1978.
[18.60.2.6 NMAC - N, 7-1-06]
18.60.2.7 DEFINITIONS: In addition to the definitions in 49 CFR Parts 40, 190, 191, 192, 195, and 199, and Sections 62-14-2 and 70-3-12 NMSA 1978, as used in these rules:
A. applicable laws means the Hazardous Liquid Pipeline Safety Act, 49 USC Sections 2001 et seq; the Hazardous Materials Transportation Act, 49 USC Sections 1801 et seq; the Natural Gas Pipeline Safety Act, 49 USC Sections 60101 et seq; Chapter 62, Article 14 NMSA 1978; the Pipeline Safety Act, Sections 70-3-11 to 70-320 NMSA 1978; these rules, and commission orders issued pursuant to them;
B. director means the director of the transportation division of the New Mexico public regulation commission or his designee;
C. staff means the staff of the pipeline safety bureau of the transportation division of the public regulation commission; and D. these rules means Title 18, Chapter 60.
[18.60.2.7 NMAC - Rp, 18.60.2.7 NMAC, 7-1-06]
18.60.2.8 ADOPTION OF PORTIONS OF THE CODE OF FEDERAL REGULATIONS:
A. Adoption by reference. Except for the variances set forth in Subsection B of this section, the commission adopts the following portions of the code of federal regulations, as such may be amended from time to time, pertaining to gas and hazardous liquid pipeline operators and facilities, and concerning the health, safety, and welfare of persons and property in New Mexico, as part of this rule:
(1) pipeline safety programs and procedures. 49 CFR 190.5, 190.233(a) and (b), and 190.237;
(2) annual, incident, and safety related condition reports. 49 CFR Part 191;
(3) minimum federal safety standards. 49 CFR Part 192;
(4) transportation of hazardous liquids by pipeline, 49 CFR Part 195;
(5) drug and alcohol testing, 49 CFR Parts 40 and 199.
B. New Mexico variances to adopted federal regulations.
(1) The reporting threshold in New Mexico shall be $5,000 instead of the $50,000 reporting threshold established in 49 CFR 191.3.
(2) Leakage surveys of transmission lines in New Mexico shall be conducted using leak detection equipment but shall otherwise be conducted in accordance with 49 CFR 192.706(b).
C. Interpretation of references and terms in federal regulations.
(1) References in the code of federal regulations to "state agency" shall be deemed references to the transportation division of the New Mexico public regulation commission;
(2) References in 49 CFR 190.233(a) and (b) to the "associate administrator, OPS" shall be deemed references to the director of the transportation division of the New Mexico public regulation commission; and
(3) References in 49 CFR 190.233(a) and (b) to 49 CFR 190.233(c), 49 CFR 190.233(c)(2), or 49 CFR 190. 233(g) shall be deemed references to 18.60.4.9 NMAC through 18.60.4.15 NMAC.
(4) References in 49 CFR 192.723(b)(1) to "business district" shall have the meaning given by the United States department of transportation in correspondence interpreting the term.
[18.60.2.8 NMAC - Rp, 18.60.2.8 NMAC, 7-1-06]
18.60.2.9 NOTICE OF INTENT TO CONSTRUCT: Prior to the start of construction of any new or replacement intrastate natural gas pipeline with a total construction value of $50,000 or more, the operator of such pipeline shall give written notice of its intent to construct to the Transportation Division Director, Post Office Box 1269, Santa Fe, New Mexico, 87504-1269. The notice of intent to construct shall state:
A. the pipe material;
B. the finished diameter, length, and approximate location of the pipeline;
C. the size and capacity of any compressors or pumps;
D. and the contemplated date construction will commence.
[18.60.2.9 NMAC - Rp, 18.60.2.18 NMAC, 7-1-06]
18.60.2.10 REPORTS OF MASTER METERS: Annually, by March 15, each owner or operator of a gas distribution or transmission system shall report to the director the name, address, and location of any master meter operator connected to its facilities.
[18.60.2.10 NMAC - Rp, 18.60.2.19 NMAC, 7-1-06]
18.60.2.11 OPERATION AND MAINTENANCE MANUAL: Each owner or operator of gas or hazardous liquid pipeline facilities in New Mexico, whether above ground or underground, shall file with the director a manual prescribing its procedures for emergencies and for inspection and maintenance of each pipeline facility it owns or operates and a plan for classification and repair of leaks consistent with 18.60.2.12 NMAC. Any change to procedures set forth in the manual must be filed with the director within twenty (20) days after the change is made.
[18.60.2.11 NMAC - Rp, 18.60.2.21 NMAC, 7-1-06]
18.60.2.12 CLASSIFICATION AND REPAIR OF LEAKS: Immediately upon discovery, and in accordance with generally accepted industry criteria, an owner or operator shall classify a leak as:
A. a hazardous leak, grade I or C, if it is a leak which, due to its location and/or magnitude, constitutes an immediate hazard to persons or property;
B. a potentially hazardous leak, grade II or B, if it is a leak that does not constitute an immediate hazard, but may become hazardous if not repaired within a reasonable time period; or
C. a non-hazardous leak, grade III or A, if it is a leak which does not constitute a hazard and shows no indication of becoming hazardous before routine scheduled repair could be accomplished.
[18.60.2.12 NMAC - Rp, 18.60.2.22 NMAC, 7-1-06]
18.60.2.13 OIL PIPELINE TARIFFS:
A. An owner or operator of an oil pipeline shall file with the commission at least ten (10) days prior to its effective date two (2) copies of its tariff covering intrastate movements within New Mexico.
B. An owner or operator of an oil pipeline shall file with the commission at least ten (10) days prior to its effective date two (2) copies of any changes to its tariff.
C. If an owner or operator of an oil pipeline assesses separate charges for the gathering of oil and for its transportation and delivery, the charges shall be separately specified in its tariff.
D. In determining whether an oil pipeline's rates for the transportation of oil are reasonable, the commission shall consider:
(1) the actual costs to transport;
(2) market factors;
(3) the range of rates being charged by other oil pipelines for similar services;
(4) any other factors the commission deems relevant.
[18.60.2.13 NMAC - N, 7-1-06]
History of 18.60.2 NMAC:
Pre-NMAC History: The material in this rule was derived from that previously filed with the commission of public pecords-state records center and archives.
SCC 69-29, Order No. 2966, Cause No.516, filed 9-24-69.
SCC 71-2, Amended Order No. 2966, Cause No.516, filed 3-18-71.
SCC 72-1, Amended Order No. 3096, Cause No.516, filed 1-12-72.
SCC 77-2, Order No. 3096-C, Docket No.750, filed 3-04-77.
SCC 79-4, Regulations Relating to Minimum Safety Standards for the Transportation of Natural and other Gas by Pipeline, filed 6-27-79.
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84.
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 5-1-96) repealed 7-1-03.
Other History:
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84, was renumbered into first version of the New Mexico Administrative Code as 18 NMAC 60.1 through 18 NMAC 60.10, effective 6-5-96.
18 NMAC 60.1 through 18 NMAC 60.10 (all filed 5-1-96), were replaced by 18.60.2 NMAC, Pipeline Safety, effective 7 -1-03.
18.60.2 NMAC, Pipeline Safety (filed 6-16-2003) replaced by 18.60.2 NMAC, Pipeline Safety General Provisions, effective 7-1-06.
TITLE 18 TRANSPORTATION AND HIGHWAYS
CHAPTER 60 PIPELINE CONSTRUCTION AND MAINTENANCE
PART 4 PIPELINE SAFETY ENFORCEMENT PROCEDURES
18.60.4.1 ISSUING AGENCY: New Mexico Public Regulation Commission.
[18.60.4.1 NMAC - N, 7-1-06]
18.60.4.2 SCOPE: This rule applies to all owners and operators of gas and hazardous liquid pipelines and underground facilities, excavators, and one-call notification systems in New Mexico subject to the jurisdiction of the commission pursuant to applicable laws.
[18.60.4.2 NMAC - N, 7-1-06]
18.60.4.3 STATUTORY AUTHORITY: Sections 8-8-4, 62-14-9.1, 62-14-10, and 70-3-13 NMSA 1978.
[18.60.4.3 NMAC - N, 7-1-06]
18.60.4.4 DURATION: Permanent.
[18.60.4.4 NMAC - N, 7-1-06]
18.60.4.5 EFFECTIVE DATE: July 1, 2006, unless a later date is cited at the end of a section.
[18.60.4.5 NMAC - N, 7-1-06]
18.60.4.6 OBJECTIVE: The purpose of this rule is to prescribe procedures to administer and enforce Chapter 62, Article 14 NMSA 1978, and the Pipeline Safety Act, Sections 70-3-11 to 70-3-20 NMSA 1978.
[18.60.4.6 NMAC - N, 7-1-06]
18.60.4.7 DEFINITIONS: In addition to the definitions in 18.60.2.7 and 18.60.5.7 NMAC, as used in this rule, respondent means an owner or operator of gas and hazardous liquid pipelines or underground facilities, an excavator, or a one-call notification system.
[18.60.4.7 NMAC - Rp, 18.60.2.7 NMAC, 7-1-06]
18.60.4.8 INSPECTIONS AND INVESTIGATIONS:
A. Pipelines.
(1) Staff is authorized to enter upon, inspect, and examine, at reasonable times and in a reasonable manner, those records and pipeline facilities of an owner or operator relevant to determining whether the owner or operator is in compliance with applicable laws.
(2) Staff may conduct an inspection pursuant to:
(a) scheduling by staff;
(b) a written complaint received from a member of the public;
(c) information obtained from a previous inspection;
(d) an accident or incident; or
(e) whenever the commission or the director deems it appropriate.
(3) If, after an inspection, staff believes that further information is needed to determine appropriate action, staff may send a request for specific information to the owner or operator. The owner or operator shall answer the request within thirty (30) days of its receipt.
(4) The commission may, subject to applicable laws, require testing of portions of facilities that have been involved in, or affected by, an accident. The commission shall make every effort to negotiate with the owner or operator of the facility a mutually acceptable plan for performing the testing.
(5) When the information obtained from an inspection or from other appropriate sources indicates that further commission action is warranted, the director shall issue a notice of probable violation or notice of intent to issue a hazardous facility order, as appropriate.
B. Excavation. A one-call notification system, underground facility operator, excavator, or project owner, as appropriate, shall, upon reasonable notice and presentation of identification, grant staff access to:
(1) an excavation site for the purpose of previewing, observing, or examining an excavation activity;
(2) all records pertaining to an excavation activity that are in the possession of the one-call notification system, underground facility operator, excavator, or project owner.
[18.60.4.8 NMAC - Rp, 18.60.2.9 NMAC, 7-1-06]
18.60.4.9 SERVICE OF PROCESS: Whenever this rule requires notice or other process to be served on a respondent, the notice or other process shall be served at the last known address of the respondent.
[18.60.4.9 NMAC - Rp, 18.60.2.10 NMAC, 7-1-06]
18.60.4.10 NOTICE OF PROBABLE VIOLATION:
A. Except as otherwise provided in Section 70-3-19 NMSA 1978, the director shall begin an enforcement proceeding by serving a notice of probable violation on the respondent.
B. The director may serve a notice of probable violation of applicable laws through staff on the respondent or the respondent's agent at an excavation site. In such case, the director shall also serve the notice of probable violation by mail on the respondent as prescribed in 18.60.4.9 NMAC.
C. A notice of probable violation shall include a statement of those provisions of applicable laws that the respondent is alleged to have violated, a statement of the evidence upon which the allegations are based, a statement that the respondent may request a settlement conference within fifteen (15) days of receipt of the notice of probable violation, and instructions regarding how the respondent may request a settlement conference. A respondent shall respond to the allegations in writing within fifteen (15) days of receipt of the notice of probable violation. The director may, in his discretion and in accordance with applicable laws, grant or deny a request for a settlement conference.
D. If, in his discretion, the director determines that a settlement conference would be useful, the notice of probable violation shall also contain a date, time and location for a settlement conference, and a statement that if the respondent fails to appear for the settlement conference, the respondent will be deemed to have admitted the violation.
E. The director may amend a notice of probable violation at any time prior to issuance of a final order.
[18.60.4.10 NMAC - Rp, 18.60.2.11 NMAC, 7-1-06]
18.60.4.11 ATTORNEY REPRESENTATION. In settlement conferences, dispositional hearings, commission hearings conducted pursuant to this rule, and arbitrations and mediations conducted pursuant to 18.60.5 NMAC, respondents shall be represented as provided in this section.
A. An individual or sole proprietorship shall appear in person on his or her own behalf or may be represented by an attorney.
B. A partnership with fewer than ten (10 ) partners, whether limited or general, who are all natural persons, may appear and be represented by an attorney or by a general partner or manager who has been authorized by the general partnership to do so.
C. A limited liability company with fewer than ten (10) members, who are all natural persons, may appear and be represented by an attorney or by a manager or member who has been authorized by the limited liability company to do so.
D. A corporation whose voting shares are held by a single shareholder or closely knit group of shareholders who are all natural persons active in the operation of the business may appear and be represented by an attorney or by an officer or manager who has been authorized by the corporation to do so.
E. All other persons shall be represented by an attorney.
[18.60.4.11 NMAC - N, 7-1-06]
18.60.4.12 SETTLEMENT CONFERENCES: The director may conduct a settlement conference with the respondent at the date, time and in the manner set forth in the notice of probable violation, or at such other time agreed to by the director and the respondent. At the settlement conference, the director shall explore with the respondent the facts of the probable violation and the possibility of reaching an agreed upon resolution, which may include dismissal or a voluntary settlement agreement with administrative or civil penalties or other sanctions.
A. Voluntary dismissal. If the director and respondent agree to dismiss the notice of probable violation, the director shall issue a letter dismissing the probable violation which shall resolve the matter.
B. Voluntary settlement agreement. If the director and respondent agree to settle, the director and respondent shall enter into and sign a written settlement agreement which shall resolve the matter. The written settlement agreement shall include any administrative or civil penalties or other sanctions and the respondent's knowing waiver of his right to a formal hearing.
C. Failure to settle. If the respondent appears at the settlement conference but does not agree to terms and conditions that are satisfactory to the director, the director may request a hearing before the commission pursuant to 18.60.4.14 NMAC or file a petition in district court for injunctive action.
D. Failure to appear. If the respondent fails to appear for the settlement conference, the respondent will be deemed to have admitted the violation. Within ten (10) days, the director may serve on respondent a determination of violation. The determination shall include notice of the respondent's right to appeal pursuant to 18.60.4.14 NMAC and may include notice of a dispositional hearing pursuant to 18.60.4.13 NMAC.
E. Alternative procedures. The director may give notice of a dispositional hearing, request a hearing before the commission, or file a petition in district court for injunctive action without offering to hold a settlement conference.
[18.60.4.12 NMAC - Rp, 18.60.2.12 NMAC, 7-1-06]
18.60.4.13 DISPOSITIONAL HEARINGS:
A. Notice. Not less than twenty (20) days prior to the date of the dispositional hearing, the director shall serve on the respondent notice of the dispositional hearing and copies of the notice of probable violation, staffs inspection reports, and any third party complaints or damage reports by mail as prescribed by 18.60.4.9 NMAC. The notice shall state in boldface type that failure to appear at the dispositional hearing may result in the issuance of a default disposition and administrative or civil penalties or other sanctions.
B. Procedures.
(1) The director shall appoint a person or a panel to hear the case, or may hear the case himself or herself.
(2) The dispositional hearing shall be recorded by mechanical or electronic means and the director, or person or panel conducting the hearing, shall determine if the record shall be transcribed.
(3) If the director does not hear the case himself or herself, the person or panel conducting the dispositional hearing shall issue a recommended disposition to the director setting forth findings of fact, the amount of any administrative or civil penalties, and any other sanctions.
C. Disposition. The director shall promptly act on the recommended disposition. The director's disposition shall include:
(1) findings of fact;
(2) the amount of the penalty and the procedure for its payment, if an administrative or civil penalty is assessed;
(3) a statement of the actions required to be taken by the respondent and the time by which each action must be accomplished; and (4) a statement that the respondent may appeal the director's disposition by filing a request for a hearing before the commission pursuant to 18.60.4.14 NMAC.
D. Failure to appear. If the respondent fails to appear for the dispositional hearing, the director may issue a default disposition, which may include administrative or civil penalties or other sanctions.
[18.60.4.13 NMAC - N, 7-1-06]
18.60.4.14 HEARINGS BEFORE THE COMMISSION:
A. Request for hearing.
(1) By the director. At any time after the notice of probable violation has been served on the respondent, the director may request a hearing before the commission.
(2) By the respondent. A respondent may appeal a determination made by the director pursuant to Subsection D of 18.60.4.12 NMAC or a disposition made by the director pursuant to 18.60.4.13 NMAC by filing a request for hearing before the commission. The respondent shall file the appeal with the docket filing unit of the commission within thirty (30) days of the date the director's determination or disposition is mailed to the respondent. The appeal shall be in writing and signed by the respondent and shall set forth the factual basis for the appeal and the nature of the relief requested. An appeal may request a stay of the director's determination or disposition pending a decision of the commission.
B. Notice of hearing. The commission shall:
(1) fix a time and location for a public hearing on the alleged violations; and
(2) serve notice of the hearing upon the respondent by mail as prescribed by 18.60.4.9 NMAC not less than ten (10) days prior to the date of the hearing with copies of the notice of probable violation, staffs inspection reports, and any third party complaints or damage reports. The notice shall state in boldface type that failure to appear at the hearing may result in a default judgment and the imposition of administrative or civil penalties or other sanctions.
C. Hearing procedures. The commission may appoint a hearing examiner or may hear the matter itself. The commission or hearing examiner shall conduct the hearing in accordance with the PRC rules of procedure. If a hearing examiner conducts the hearing, the hearing examiner shall submit to the commission a recommended decision with findings of fact and conclusions of law.
[18.60.4.14 NMAC - Rp, 18.60.2.13 and 18.60.2.14 NMAC, 7-1-06]
18.60.4.15 STIPULATION:
A. At any time before the issuance of a final order, the director and the respondent may agree to resolve a case by stipulation. The stipulation may include assessment or waiver of a civil or administrative penalty or other sanctions.
B. A stipulation shall include:
(1) an admission by the respondent of all jurisdictional facts;
(2) an express waiver of the right to pursue further procedural remedies before the commission and of the right to seek judicial review or otherwise challenge or contest the validity of the stipulation;
(3) an acknowledgement that the notice of probable violation may be used to construe the terms of the stipulation;
(4) an acknowledgement that the stipulation will be considered a violation for purposes of penalties for subsequent violations; and
(5) a statement of the actions to be taken by the respondent and the time by which each action shall be accomplished.
C. If a case is resolved by stipulation, staff shall file a motion requesting approval of the stipulation and closing of the case.
[18.60.4.15 NMAC - Rp, 18.60.2.15 NMAC, 7-1-06]
18.60.4.16 FINAL ORDER: After a hearing, and the consideration of any exceptions pursuant to the PRC rules of procedure, the commission shall issue a final order that includes:
A. findings of fact and conclusions of law;
B. the amount of the penalty and the procedure for its payment, if a civil or administrative penalty is assessed; and
C. a statement of the actions required to be taken by the respondent and the time by which each action must be accomplished.
[18.60.4.16 NMAC - Rp, 18.60.2.16 NMAC, 7-1-06]
18.60.4.17 PAYMENT OF PENALTY:
A. A respondent shall pay an administrative or civil penalty agreed to in a voluntary settlement agreement or assessed in a director's disposition or commission final order by certified check or money order made payable to the New Mexico Public Regulation Commission and shall submit the payment to the address provided by the commission.
B. If a respondent fails to pay the full amount of an administrative or civil penalty within twenty (20) days of receipt of a director's disposition or commission final order, or other time frame specified in the disposition or order, the commission or director may file an action in district court to collect the assessed penalty.
[18.60.4.17 NMAC - Rp, 18.60.2.17 NMAC, 7-1-06]
18.60.4.18 REFERRAL FOR PROSECUTION: If an employee of the transportation division of the New Mexico public regulation commission becomes aware of any actual or. possible activity subject to criminal penalties under Section 70-3-19 NMSA 1978, the employee shall report such actual or possible activity to the office of the attorney general for the state of New Mexico.
[18.60.4.18 NMAC - Rp, 18.60.2.26 NMAC, 7-1-06]
History of 18.60.4 NMAC:
Pre-NMAC History: The material in this rule was derived from that previously filed with the Commission of Public Records-State Records Center and Archives.
SCC 69-29, Order No. 2966, Cause No.516, filed 9-24-69.
SCC 71-2, Amended Order No. 2966, Cause No.516, filed 3-18-71.
SCC 72-1, Amended Order No. 3096, Cause No.516, filed 1-12-72.
SCC 77-2, Order No. 3096-C, Docket No.750, f:L1ed 3-04-77.
SCC 79-4, Regulations Relating to Minimum Safety Standards for the Transportation of Natural and other Gas by Pipeline, filed 6-27 -79.
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84.
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 5-1-96) repealed 7-1-03.
Other History:
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84, was renumbered into first version of the New Mexico Administrative Code as 18 NMAC 60.1 through 18 NMAC 60.10, effective 6-5-96.
18 NMAC 60.1 through 18 NMAC 60.10 (all filed 5-1-96), were replaced by 18.60.2 NMAC, Pipeline Safety, effective 7-1-03.
Those applicable portions of 18.60.2 NMAC, Pipeline Safety (filed 6-16-2003) replaced by 18.60.4 NMAC, Pipeline Safety Enforcement Procedures, effective 7-1-06.
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 - N, 7-1-06]
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 subject to the jurisdiction of the commission.
[18.60.5.2 NMAC - N, 7-1-06]
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 - N, 7-1-06]
18.60.5.4 DURATION: Permanent.
[18.60.5.4 NMAC - N, 7-1-06]
18.60.5.5 EFFECTIVE DATE: July 1, 2006, unless a later date is cited at the end of a section.
[18.60.5.5 NMAC - N, 7-1-06]
18.60.5.6 OBJECTIVE: The purpose of this rule is to implement Chapter 62, Article 14 NMSA 1978 by providing procedures for preventing excavation damage and for dealing with damage when it occurs.
[18.60.5.6 NMAC - N, 7-1-06]
18.60.5.7 DEFINITIONS: In addition to the definitions in Section 62-14-2 NMSA 1978, as used in this rule:
A. access information means a telephone number, a facsimile number, an emai1 address, and, if available, a website address;
B. bid locate means the marking of underground facilities at the request of a project owner for the purpose of providing information to persons bidding on a project;
C. design locate means the marking of underground facilities at the request of a project owner for the purpose of providing information to persons designing a project;
D. excavation locate means the marking of underground facilities at the request of an excavator for the purpose of providing information to an excavator working on a project;
E. 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;
F. non-member UFO means a UFO that is not a member of a one-call system;
G. project owner means the owner of a project involving excavation or the person designated by the owner to be in charge of the project involving excavation;
H. 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 (4) inches of earth; road maintenance does not include street sweeping or road milling and resurfacing as long as the subsurface is not disturbed;
I. underground facility operator (UFO) means a person who operates an underground facility; and J. working day means a twenty-four (24) hour period excluding weekends and holidays.
[18.60.5.7 NMAC - N, 7-1-06]
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 (5) years and make such records available to the commission upon request;
F. report to the commission quarterly the:
(1) average wait time for answered calls for each month in the quarter;
(2) number of calls received for each month in the quarter;
(3) number of tickets generated for each month in the quarter;
(4) number of requests by type (regular, priority, emergency) for each month in the quarter;
G. report any changes in access information to the commission on or before the date the information will change;
H. inform any person who calls with a complaint that he or she may file a complaint with the commission, and provide the commission's access information, if the one-call system is unable to satisfactorily resolve the matter.
[18.60.5.8 NMAC - N, 7-1-06]
18.60.5.9 RESPONSIBILITIES OF UFOs:
A. All UFOs.
(1) A UFO shall report any changes in access information to the commission on or before the date the information will change.
(2) A UFO shall keep a record of all locate requests and make such records available to the commission upon request.
(3) A UFO shall retain records of locate requests and excavation notices for a period of five (5) years.
(4) A UFO that utilizes contractors to perform locate and excavation activities on its behalf shall be responsible for compliance with the law and these rules.
B. Non-member UFOs. A non-member UFO shall:
(1) continuously advise the general public and excavators known to work in the area where the nonmember UFO's underground facilities exist of:
(a) the requirement to submit a request for a locate at least two (2) working days prior to commencing any excavation;
(b) the local or toll-free telephone number or other authorized contact method for submitting locate requests; and
(c) the local or toll-free telephone number for reporting damage or an emergency situation to the non-member UFO;
(2) at a minimum, provide telephone access at no cost to an excavator during normal business hours Monday to Friday, excluding holidays.
[18.60.5.9 NMAC - N, 7-1-06]
18.60.5.10 LOCATE REQUESTS: An excavator shall make an excavation locate request for all projects involving excavation, including road maintenance.
A. Submittal.
(1) One-call notification systems. 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 twenty-four hours a day, seven days a week.
(2) Non-member UFOs. 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 he can reasonably expect to excavate within a ten (10) working day period and shall request an excavation locate for that area 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;
(2) a description and the purpose of the type of work to be done;
(3) the name of the person for whom the work is being done;
(4) whether or not the excavation site is pre-marked in white;
(5) 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;
(6) driving instructions to a rural excavation site;
(7) spotting instructions;
(8) any appropriate remarks regarding access to or hazards at the site.
D. Processing.
(1) A one-call notification system or non-member UFO may hold a locate request in suspension until it is complete. The one-call notification system or non-member UFO shall contact an excavator within three (3) 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 or non-member UFO shall process all complete locate requests within three (3) hours of receipt. A one-call notification system or non-member UFO shall deem locate requests received on a weekend or holiday, or after 4:00 pm on a working day, to have been received at 7:00 am on the next working day and shall deem locate requests received before 7:00 am on a working day to have been received at 7:00 am on that working day.
(3) Upon receipt of a complete locate request:
(a) a one-call notification system shall issue a ticket with a unique number to the requesting excavator as confirmation; a one-call notification system shall send a ticket to all members of the system that have underground facilities in the excavation area, or notify 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;
(b) a non-member UFO shall provide, by telephone, facsimile, or e-mail, confirmation of receipt and a unique confirmation number to the requesting excavator, followed by a written confmnation of receipt if the initial confmnation was made by telephone; the confmnation shall be the equivalent of a ticket and shall be effective at the date and time the non-member UFO initially contacts the excavator.
[18.60.5.10 NMAC - N, 7-1-06]
18.60.5.11 WIDE AREA LOCATE REQUESTS: An excavator who expects a project to take more than ten (10) 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 ten (10) working days to complete, the excavator shall contact the one-call notification system and non-member UFOs to request a wide area conference.
The one-call notification system and non-member UFOs shall process the request as provided in Subsection D of 18.60.5.10 NMAC.
B. A UFO shall contact an excavator who requests a wide area conference within two (2) working days of the issuance of the conference ticket to schedule a conference.
C. At the conference, the excavator shall develop a written work plan in concert 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 developed, an excavator shall request a wide area excavation locate. The one-call notification system or non-member UFO shall process the request as provided in Subsection D of 18.60.5.10 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 ticket every ten (10) working days for the duration of the ticket. For the purpose of reaffirmation, a working day begins on the date and time stamped on the ticket and ends ten (10) working days from such date and time. Unless the excavator states that the existing markings are sufficient for the time being, a UFO shall verify that existing markings are still visible, refresh them if needed, and continue to locate according to the work plan.
[18.60.5.11 NMAC - N, 7-1-06]
18.60.5.12 DESIGN AND BID LOCATE REQUESTS: A project owner shall request information regarding the location of underground facilities in accordance with either Subsection A or B of this section, but may not switch methods once having made an election.
A. Physical locates.
(1) A project owner may request from one-call notification systems and non-member UFOs a design locate or a bid locate.
(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 the location of underground facilities on the site within two (2) working days from the date of the ticket.
(4) Designers or bidders, as appropriate, shall capture data from the site within ten (10) working days from the end of the two day marking period.
(5) A project owner shall not request relocates or time extensions.
B. Conferences.
(1) A project owner may request from the one-call notification system for the intended excavation area and non-member UFOs a design conference or bid conference with UFOs.
(2) The one-call notification system for the intended excavation area shall process the request as provided in Subsection D of 18.60.5.10 NMAC.
(3) UFOs shall contact the project owner within two (2) working days to arrange to provide information to designers or bidders within a reasonable time.
(4) A project owner and UFOs shall continue coordinating until the bid for the project has been awarded and an excavator requests an excavation locate.
[18.60.5.12 NMAC - N, 7-1-06]
18.60.5.13 MARKING EXCAVATION SITES:
A. Excavators. The commission encourages excavators to mark all proposed excavation sites in accordance with American public works association (APWA) standards. In assessing administrative penalties for damage to underground facilities, the commission may consider whether and how well an excavator marked a proposed excavation site.
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 (2) working days from the effective date of the ticket.
(3) If it does not have underground facilities at the excavation site, a UFO may write "clear" or "no underground facilities" and the UFO's name at the site in the appropriate color. Alternatively:
(a) a UFO that is a member of the one-call notification system for the intended excavation area may contact the one-call notification system within two (2) working days to report it has no underground facilities;
(b) a non-member UFO may:
(i) if it receives a locate request by telephone, and can determine at the time of the call that it has no underground facilities in the intended excavation area, so inform the excavator at the time of the call;
(ii) contact the excavator directly by telephone, facsimile, or email, within two (2) working days to report it has no underground facilities;
(iii) in either case, both the non-member UFO and the excavator shall document the notification.
(4) The locate markings shall be valid for ten (10) working days from the end of the two (2) day marking period. For the purpose of excavation, a working day begins on the date and time stamped on the ticket and ends twelve (12) working days from such date and time.
(5) 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 in accordance with Subsection C of 62-14-5 NMSA 1978.
[18.60.5.13 NMAC - N, 7-1-06]
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 its underground facilities that are parallel to the road, as provided in Subsection A, and shall either physically mark or locate by marker its underground facilities that cross the road, as provided in Subsection B.
A. Underground facilities parallel to road. A UFO shall physically mark the location of all underground facilities located parallel to 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 set forth in 18.60.5.13 NMAC.
B. Underground facilities that cross the road.
(1) Physical locate. A UFO may physically mark the location of all underground facilities that 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 marker. Alternatively, a UFO may use a system of markers to indicate the location of underground facilities that cross the road to be maintained. Such markers shall:
(a) only be used to mark underground facilities that cross the road to be maintained and only 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.
C. Maintenance of markers. A UFO shall be deemed to have failed to correctly mark its underground facility that crosses a road to be maintained unless it:
(1) ensures that the markers are in place;
(2) maintains a minimum twenty-four (24) inches of coverage over the underground facility that crosses the road;
(3) verifies the depth of its underground facilities at the markers at least annually; and
(4) ensures that the decal is visible and the information on it is readable.
[18.60.5.14 NMAC - N, 7-1-06]
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 and the two (2) working day marking period has expired, the excavator may begin excavating.
(2) If one or more underground facilities have not been marked, an excavator shall, prior to commencing excavation, call:
(a) the one-call notification system for the intended excavation area if the UFO is a member of the one-call notification system; or
(b) any non-member UFOs operating in the intended excavation area.
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 (2) hours of contact or as expeditiously as possible if the excavation site is in a rural area; or
(b) expose the underground facility by non-mechanical means or mechanical vacuum excavation methods.
(2) 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.
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 - N, 7-1-06]
18.60.5.16 EMERGENCY EXCAVATION PROCEDURE: This section applies whenever damage to underground facilities or public infrastructure threatens or causes interruption of utility services or use of the public infrastructure.
A. Excavators. An excavator who damages an underground facility while excavating shall exercise prudence and shall:
(1) stop excavating immediately;
(2) call 911 if appropriate and/or the operator of the damaged underground 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 damaged underground facilities. The operator of a damaged underground facility shall exercise prudence and shall:
(1) promptly respond to a report of damage to its underground facilities and travel to the site of the damage;
(2) while on the way to the site or at the site, call the one-call notification system for the excavation area to request an emergency locate if damage occurs during normal business hours;
(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 (2) hours; and (5) obtain an excavation locate ticket for repair work beyond resolution of the emergency situation.
C. Operators of damaged public infrastructure. The entity responsible for the damaged public infrastructure shall:
(1) call the one-call notification system for the excavation area to request an emergency locate if damage occurs during normal business hours;
(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, issue an emergency excavation notice; an emergency excavation notice shall be valid until the emergency is resolved, or for forty-eight (48) hours, whichever is longer;
[18.60.5.16 NMAC - N, 7-1-06]
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 ten (10) 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 or clears within the requisite timeframe;
F. fails to mark, or call in a clear for, its underground facilities within the requisite time frame;
G. commences excavation prior to the expiration of the two (2) day notice period;
H. obliterates markings at an excavation site without providing temporary offset marks or stakes;
I. alters any record relating to excavation activity; or
J. commits any other act that the commission determines violates Chapter 62, Article 14 NMSA 1978 or this rule.
[18.60.5.17 NMAC - N, 7-1-06]
18.60.5.18 REPORTS OF THIRD PARTY DAMAGE:
A. A UFO shall report to the director, in writing, any incident in which the owner or operator's underground facility is damaged, or a person is injured by a person not employed by the owner or operator. 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 include the identity of the alleged violator, if known, and all pertinent information required by the director.
C. The report shall be submitted by the 15th day of the month following the month of occurrence, or within thirty (30) days of occurrence, whichever is later.
D. The UFO shall make available to the director within a reasonable time such other information or documentation as the director may require regarding any incident reportable under this section.
[18.60.5.18 NMAC - Rp, 18.60.2.20 NMAC, 7-1-06]
18.60.5.19 ALTERNATIVE DISPUTE RESOLUTION:
A. The commission encourages owners and operators of underground facilities and excavators to privately negotiate and settle disputes arising from excavation damage to underground facilities.
B. In the event the parties are unable to resolve such disputes privately, any owner or operator of underground facilities or any 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, 18.60.2.23 NMAC, 7-1-06]
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 counselor 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 twenty (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, 18.60.2.24 NMAC, 7-1-06]
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 ten (10) days of receipt of the commission's letter forwarding the request.
(1) lf 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 with in ten (10) 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 sixty (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 (10) 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.
C. 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, 18.60.2.25 NMAC, 7-1-06]
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, 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, 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, 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 - N, 7-1-06]
HISTORY OF 18.60.5 NMAC:
Pre-NMAC History: The material in this rule was derived from that previously filed with the commission of public records-state records center and archives.
SCC 69-29, Order No. 2966, Cause No.516, filed 9-24-69.
SCC 71-2, Amended Order No. 2966, Cause No.516, filed 3-18-71.
SCC 72-1, Amended Order No. 3096, Cause No.5l6, filed 1-12-72.
SCC 77-2, Order No. 3096-C, Docket No.750, filed 3-04-77.
SCC 79-4, Regulations Relating to Minimum Safety Standards for the Transportation of Natural and other Gas by Pipeline, filed 6-27 -79.
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84.
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 5-1-96) repealed 7-1-03.
Other History:
SCC 84-9-PL, Regulation for the Transportation of Natural and other Gas by Pipeline - Minimum Standards, filed 11-26-84, was renumbered into first version of the New Mexico administrative code as 18 NMAC 60.1 through 18 NMAC 60.10, effective 6-5-96.
18 NMAC 60.1 through 18 NMAC 60.10 (all filed 5-1-96), were replaced by 18.60.2 NMAC, Pipeline Safety, effective 7-1-03.
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 7-1-06.
