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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
18.60.5.4 DURATION:
Permanent.
[18.60.5.4 NMAC - N, 7-17-06]
18.60.5.5 EFFECTIVE
DATE: July 17, 2006, unless a later date is cited
at the end of a section.
[18.60.5.5 NMAC - N, 7-17-06]
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, 7-17-06]
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 email 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, 7-17-06]
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,
7-17-06]
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
non-member 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, 7-17-06]
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
confirmation of receipt if the initial confirmation was made by telephone; the
confirmation 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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
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, 7-17-06]
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 timeframe;
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, 7-17-06]
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,
7-17-06]
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,
7-17-06]
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 counsel or expert witness,
or as an attorney, expert witness, or representative of any party to the
proceeding.
B. Duties of mediator. The
mediator shall notify the parties by telephone or mail of the time and place of
the mediation conference, which will be held at commission offices unless
otherwise directed by the mediator. The
notice may direct the parties to send the mediator, but not other parties,
their settlement positions and other necessary information that could
facilitate the mediation conference, including the results of staff's
investigation of the damage. In
addition, the mediator may require counsel to have their clients present at the
mediation conference or accessible by telephone. The mediation conference shall be held within
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,
7-17-06]
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) If the other parties agree to arbitration
of the dispute, they shall include in their response to the commission a
concise statement of their position with regard to the merits of the dispute
and an acknowledgment that they agree to be bound by the decision of the
arbitrator.
(2) If the other parties will not agree to
arbitration, they shall so state in their response.
(3) If the other parties either fail to
respond to a request for arbitration or do not agree to arbitration, the
requesting party retains the right to proceed with an action for civil
liability for damages in district court.
B. Designation of arbitrator. If
all parties agree to arbitration, the commission shall designate an
arbitrator. The arbitrator may be a
permanent or temporary employee of the commission or another state agency or
any other individual who is acceptable to the parties to the dispute. The designated arbitrator shall have no
official, financial or personal conflict of interest with respect to the issues
in controversy, unless such interest is fully disclosed in writing to all
parties at the time of the commission's designation and all parties agree that
the arbitrator may serve. The parties
shall be required to indicate their consent in writing to the designated
arbitrator within ten (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.
D. Inadmissibility of settlement offers.
Unless agreed to by all the parties, no statements, admissions, or
offers of settlement made during the course of arbitration proceedings shall be
admissible as evidence in any formal proceeding nor shall the arbitrator
disclose the same voluntarily or through discovery or compulsory process. Nothing in this section, however, shall
preclude the arbitrator from issuing a brief written decision describing his
conclusions and the bases for them.
[18.60.5.21 NMAC - Rp, 18.60.2.25 NMAC,
7-17-06]
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, 7-17-06]
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.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.
Those applicable portions of 18.60.2 NMAC,
Pipeline Safety (filed 6-16-2003) replaced by 18.60.5 NMAC, Pipeline Safety Excavation
Damage Prevention, effective 7-17-06.