7-2400-15550-1
STATE OF MINNESOTA
FOR THE DEPARTMENT OF PUBLIC SAFETY
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In the Matter of the Proposed Amendments to Rules Governing the Minnesota Excavation Notification System; Minnesota Rules, Chapter 7560 |
REPORT OF THE ADMINISTRATIVE LAW JUDGE |
This Report is part of the rulemaking process that must occur under the Minnesota Administrative Procedure Act (APA)[1] before an agency can adopt rules. The legislature designed the process to ensure that state agencies—here, the Department of Public Safety—Office of Pipeline Safety (Agency, Department, DPS or OPS)—meet the APA requirements for adopting rules. Agencies are required to demonstrate that their proposed rules are necessary and reasonable and that any modifications they propose later do not result in rules that are substantially different from those proposed originally.
The Minnesota One-Call Excavation Notification System, codified in Minn. Stat. chapter 216D, was passed by the legislature in 1988. The DPS-OPS enforces the provisions of Chapter 216D as well as administrative rules governing the Excavation Notification System, codified at Minn. Rules, chapter 7560. The Agency has determined there is a need to amend chapter 7560. The need to clarify the existing rules is based on the continuing effort to increase public safety and on the findings of a group of stakeholders interested in ways to prevent damage to underground facilities. In August 2001, the OPS assembled 49 experts in the area of pipeline safety to examine the current state of the Excavation Notification System. This group (the MS216D Review Committee), included underground facility operators, excavators, municipalities and government regulators. The group identified numerous areas in state law and rules that needed review, and held nine meetings over 11 months. Five subgroups were formed to address the issues, research problem areas and propose possible solutions. In working toward possible solutions of the issues identified, the subgroups attempted to apply the techniques and methodologies recommended in a national study entitled “2003 Common Ground Alliance Best Practices-Version 1.0”.
The Minnesota Utility Contractors Association (MUCA) used some of the MS216D Review Committee’s work and findings to introduce legislation to amend Minn. Stat. Ch. 216D, which legislation passed during the 2004 session. The Department notes that a number of issues identified by the MS216D Review Committee were determined by the legislature to be addressed more properly through rulemaking, and decided to initiate this rulemaking proceeding.
Through this rulemaking process, the Department’s general objective is to clarify the current rules to increase enforcement, efficiency and fairness, enhance public safety and promote and maintain the integrity of the existing Gopher State One-Call notification system. The OPS has gained 16 years of experience as an enforcement agency and active member of the common ground alliance since the initial One-Call legislation was enacted in 1988, and has applied that experience to identify changes needed to enforce effectively the law and rules governing underground facility safety.
This matter came on for hearing before Administrative Law Judge Richard C. Luis in a conference room of the Minnesota Department of Transportation in St. Cloud on February 1, 2005. The hearing continued until all persons present had an opportunity to be heard.
The Agency was represented by Staff Counsel Kristine Hernandez Pierce, Charles Kenow, Administrator of the OPS, Mike McGrath, Chief Engineer for the Office, and Dan Munthe, Damage and Prevention Inspector at the Office of Pipeline Safety.
At the request of the Agency and other interested parties, the Administrative Law Judge extended the comment period to 20 days, until February 22, 2005, to allow interested persons and the Agency to submit written comments. The five-working day response period required by Minn. Stat. § 14.15, subd. 1 kept the record open through March 1, 2005, on which date the record closed.
The DPS-OPS must make this Report available for review by anyone who wishes to review it for at least five working days before the agency takes any further action to adopt final rules or to modify or withdraw the proposed rules. If the agency makes changes in the rules, it must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before it may adopt the rules in final form.
After adopting the final version of the rules, the DPS-OPS must send the order adopting rules to the Administrative Law Judge. Provided that the agency has taken all of the steps required to adopt the rule, the Office of Administrative Hearings will request certified copies of the rules from the Revisor of Statutes and file them with the Secretary of State.
Based on all of the proceedings herein, the Administrative Law Judge makes the following:
1. Under Minn. Stat. § 14.14, subd. 2, and Minn. R. 1400.2100, one of the determinations that must be made in a rulemaking proceeding is whether the agency has established the need for and reasonableness of the proposed rules by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy, and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[2] The DPS-OPS prepared a Statement of Need and Reasonableness (SONAR)[3] in support of its proposed rules. At the hearing, the DPS-OPS relied on the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments. The SONAR was supplemented by comments and answers by Department staff at the public hearing and by the DPS-OPS’s written post-hearing submissions.
2. The question of whether a rule has been shown to be reasonable focuses on whether it has been shown to have a rational basis, or whether it is arbitrary, based upon the rulemaking record. Minnesota case law has equated an unreasonable rule with an arbitrary rule.[4] Arbitrary or unreasonable agency action is action without consideration and in disregard of the facts and circumstances of the case.[5] A rule is generally found to be reasonable if it is related rationally to the end sought to be achieved by the governing statute.[6] The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[7]
3. An Agency is legally entitled to make choices between possible approaches so long as its choice is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[8]
4. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedures were properly followed and whether any parts of the proposed rules are improper because a rule grants undue discretion, the agency lacks statutory authority to adopt a rule, a rule is unconstitutional or otherwise illegal, a rule constitutes an undue delegation of authority to another entity, or because the proposed language of a rule does not constitute a rule.[9]
5. Minn. Laws 2004, Chap. 163, was enacted by the legislature with an effective date of August 1, 2004. This enactment created no new independent rulemaking authority for the Agency with respect to the Excavation Notification System.
6. The Agency prepared a draft Request for Comments for intended publication in the State Register as required by Minn. Stat. § 14.101. On September 19, 2003, the OPS received approval of its additional notice plan from Administrative Law Judge George A. Beck of the Office of Administrative Hearings.
7. On September 29, 2003, the Agency published a Request for Comments at 28 State Register 400. The Request for Comments described the subject matter of the proposal, described the types of groups and individuals likely to be affected, indicated how persons could comment on the proposal, and indicated how drafts of any proposal could be obtained from the Agency.
8. In the fall of 2003, another advisory committee was formed, this to aid the OPS in reviewing rule drafts. The committee met on five occasions between October 21, 2003 and May 11, 2004. At each meeting, the OPS received input on drafts and requested that members submit written comment. A summary of each advisory committee meeting is attached to the Statement of Need and Reasonableness (SONAR), as Appendix B to Exhibit 3. Throughout the rule drafting process, the OPS published drafts subject to review and comment on its web page and encouraged comment and suggestions.
9. At various points in this process, the OPS mailed a copy of the Request for Comments, a copy of the proposed rules, the SONAR and the Notice of Hearing to the DPS’s list of persons registered with the Department for purposes of receiving rulemaking notice pursuant to Minn. Stat. § 14.14, subd. 1a.
10. As required by Minn. Stat. § 14.131, the Department asked the Commissioner of Finance for an evaluation of the fiscal impacts and benefits of the proposed rules upon local units of government.[10] As noted at the hearing by Ms. Pierce,[11] the Office of the Governor informed the Agency that approval from them was tantamount to approval from the Department of Finance. Approval, in the form of acquiescence in the position of the Agency to the effect that the proposed rules would have little financial impact on local units of government, was transmitted orally to the OPS when the Governor’s office approved the rules.
11. As required by Minn. Stat. § 14.116, the Agency sent a copy of the Notice of Intent to Adopt Rules under §§ 14.14 or 14.22 and a copy of the Statement of Need and Reasonableness to the Chairs and ranking Minority Party Members of the Legislative Policy and Budget Committees with jurisdiction over the subject matter of the proposed rules.[12] The Agency notified also the Chairs and Ranking Minority Party Members for Committees that may have an interest in the subject matter of the proposed rulemaking. On or about December 3, 2004, the Agency requested the scheduling of a hearing and filed the following documents with the Chief Administrative Law Judge:
A. A copy of the proposed rules certified by the Revisor of Statute.
B. The Notice of Hearing proposed to be issued.
C. The Statement of Need and Reasonableness.
12. On December 20, 2004, a Notice of Hearing and a copy of the proposed rules were published at 29 State Register 697.[13] On December 17, 2004, the Agency mailed a Notice of Hearing to all persons and associations who had registered their names with the Department of Public Service for the purpose of receiving such notice.[14]
13. On the day of the hearing, the DPS-OPS placed the following additional documents in the record:
A. The Notice of Hearing as mailed and published.[15]
B. The Agency’s Certificate of Mailing the Notice of Hearing and Certificate of Mailing List.[16]
C. A Certificate of Additional Notice.[17]
D. A copy of the Certificate showing the Agency submitted the SONAR to the Legislative Reference Library.[18]
E. All written comments received by the Agency after publication of the Notice of Hearing and prior to the hearing.[19]
F. A copy of the Request for Comments published at 28 State Register 400.[20]
The documents noted above were available for inspection at the Office of Administrative Hearings since the date of the hearing.
14. The materials received following the publication of the Request for Comments in the State Register at 28 State Register 400 were filed with the Administrative Law Judge on March 29, 2005. They were entered into the record on the Judge’s own motion as Agency Exhibit 30.
15. The Agency relies on Minn. Stat. § 299J.04, subd. 1(4), which gives the Commissioner of Public Safety the authority to “adopt rules to implement §§ 299J.01 to 299J.17” of Minnesota Statutes for general statutory authority to adopt the proposed rules and amendments. Minn. Stat. § 299J.04, subd. 1(1) gives the Commissioner the duty to enforce §§ 216D.01 to 216D.09, as provided in §§ 216D.08 and 216D.09. The latter two statutes allow for civil penalties and injunctions for violations of §§ 216D.01 to 216D.07. Minn. Stat. §§ 216D.01 through 216D.09 make up the entirety of Minn. Stat. Ch. 216D, which is entitled “Excavation Notice System”.
16. It is found that the above-noted authority gives the Commissioner of Public Safety the authorization to adopt rules to enforce Ch. 216D. Minn. Stat. § 14.02, subd. 4, the legislatures definition of “rule” as codified in the Administrative Procedure Act, means every agency statement of general applicability and future effect…adopted to implement or make specific the law enforced or administered by that agency…”. The statutes cited grant the agency general statutory authority to adopt the rules proposed in this proceeding.
17. Under Minn. Stat. § 14.131, an agency must address the following in its SONAR:
a. A description of the classes of person who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule.
b. The probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues.
c. Whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.
d. A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule.
e. The probable costs of complying with the proposed rule, including the portion of the total costs that will be borne by identifiable categories of affected parties, such as separate classes of governmental units, businesses , or individuals;
f. The probable costs or consequences of not adopting the proposed rule, including those costs or consequences borne by identifiable categories of affected parties, such as separate classes of government units, businesses, or individuals; and the probable costs or consequences of not adopting the proposed rule.
g. An assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.
h. How the agency considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.
i. The agency’s efforts to provide additional notification under section 14.14, subdivision 1a, to persons or classes of person who may be affected by the proposed rule or must explain why these efforts were not made.
18. In its SONAR,[21] the Department:
a. Stated that the proposed rules would directly affect excavators, underground facility operators, the Gopher State One-Call Center staff, members of the general public who wish to conduct their own excavations and members of the general public concerned about underground facility safety, worker safety, public safety and the environment. The Agency maintains that the cost of the proposed rules would be borne by excavators, underground facility operators and the Gopher State One-Call Center. The Agency maintains that the Minnesota Department of Transportation (MnDOT) may experience nominal costs associated with responding positively to all excavation notices issued, and maintains that because the rules leave open the method by which MnDOT must respond, its costs should not be overly burdensome. No additional costs are anticipated for the DPS or OPS. The Metropolitan Council would be affected as an operator of wastewater facilities, however, its costs should be the same as those of MnDOT. No effect is anticipated on state revenues.
b. Noted that the Agency will benefit from these rules by having a better enforcement ability because of the clarifications proposed for existing rules. Excavators and underground facility operators will benefit, the Agency argues, because their responsibilities will be clear and these parties will be able to perform their duties with confidence that the rules will reduce risk to themselves and to the public. The rules will provide clear standards on how to handle emergencies, conduct pre-excavation meetings, maintain information and on the use of a new system of positive response. The proposals are designed to lower public safety risk, on-the-job safety risks and damage associated with miscommunication, missed underground facility locates, undue delays, lack of available information and general confusion over responsibilities. The Agency also forecasts an immense benefit to the general public because of the lowered risk associated with excavations due to more effective facility locating standards and positive communication between excavators and operators. General benefit to the public is foreseen from the fact that information on underground facilities located under public rights-of-way will be improved. There will also be clarification about who will locate service laterals and supply services to end-use customers and whether or not the service laterals will or can be located. Any system that cuts down damage to service laterals will benefit the public tremendously, the Agency maintains.
c. Argues that there is no less costly or less intrusive methodology feasible to accomplish the purpose of the rules. To require homeowners or businesses to locate a public underground facility operator’s service laterals would be far more expensive than requiring the operator to perform that function. If location is not done, public safety would be in jeopardy. It is viewed as impractical, unreasonable, and unduly burdensome to require customers of an underground facility to be operators, with all the duties and extra responsibilities entailed with that designation. Under such circumstances, the risk of damage or delay to excavators would also rise significantly.
d. Maintained with respect to alternative regulatory methods that were seriously considered, and reasons why those methods were rejected, why it was better to require operators to notify the Gopher State One-Call Center when there is a no-conflict situation and no markings were left on the site. That way, the operator processes all notices the same way and can incorporate easily the notification procedure into the standard business practice. The alternative considered was to have operators notify excavators directly of the “no conflict” situation, but it was rejected as being less efficient. It was considered that requiring operators to maintain information and documentation on meets called by excavators was appropriate, as advocated by the Minnesota Utility Contractors Association (MUCA). The OPS rejected that suggestion because it believes operators should not be required to do more than necessary for a meeting that is held solely at the discretion of an excavator. A proposed requirement to keep documentation for six months to a year after completion of an excavation was discounted as unnecessary and burdensome. Also rejected as overly burdensome was a requirement specifying that excavators had to provide copies to participants in meets of the written documentation for the meet. That proposal was discarded in favor of making the documentation available to operators only on request. Some commentators thought sewer and water laterals should be located regardless of their date of installation. This recommendation was discounted as being overly burdensome. Under the proposed rules, underground sewer and water facility operators have the latitude either to locate the water and sewer laterals or provide available information on the location of sewer and water laterals installed before January 1, 2006. They are required to locate sewer and water lateral facilities installed after December 31, 2005. Also rejected was a proposal, advanced initially by OPS but on which the Agency later reversed its position, that required operators who had located their facilities to call in to the Gopher State One-Call Center indicating they had completed their job. It was reasoned that markings and flags on-site would accomplish the same purpose by alerting an excavator who appears. Similarly, the OPS was persuaded that the there was no overriding public safety need to require operators to notify the Gopher State One-Call Center that they had marked an area with “No Conflict” signage, because the flags and markings would be visible to the excavator.
e. Maintained that operators of underground facilities who do not presently keep up-to-date information on their underground facilities located within in a public right-of-way would find the most increase in costs. Such operators will be required to maintain information about the location of their underground facilities in public rights-of-way for facilities installed after December 31, 2005, and also will need to install a locating wire on a non-conductive facility (or use another equally effective means) on such facilities installed after December 31, 2005. The ultimate cost depends on the number of facilities an entity operates and the type of locating means the operator installs. No future cost pursuant to this requirement for local governments is foreseen, because the Agency maintains the installation of service laterals in the public right-of-way is handled by and paid for by the installing contractor or by the property owner. The Agency notes that some operators will have increased costs associated with locating service laterals that have not been located previously because these operators alleged it was not their obligation to locate service laterals. The proposed rules place the responsibility on the underground facility operator supplying the service to the customer via the service laterals to locate those facilities for scheduled excavations. The OPS rejects the assertion made by representatives of some local governments that operate underground facilities that they will suffer high costs to locate service laterals because they already have a duty to locate them.[22] It is reasoned that the same operators, including operators of sewer mains, will be at the site already to locate underground facilities. Locating service laterals connected to such facilities should not be too costly. The Agency acknowledges that expenses will occur when an operator must maintain information on service laterals so that they can be located. However, the agency believes most operators already have this information and the ability to locate. The OPS believes that local governments should have this information since most local governments regulate carefully the public rights-of-way within their jurisdictions, by means of connection fees and a permit process.
f. Noted that any costs associated with maintaining information can vary from local government to local government depending on whether the municipality maintained service lateral records previously as part of their management of rights-of-way.
g. Points out that even if costs associated with the location of service laterals exist, that the rules (at proposed part 7540.0375) allow the affected parties to “agree otherwise”. If the parties agree there is no reason for the laterals to be located, then this is acceptable under the proposed rules and there should be no cost to an operator.
h. Points out that the main concern expressed to OPS has centered on liability issues rather than cost issues. Local government officials express concern that offering information on service laterals increases the risk of costly litigation because some of the existing location information may be faulty. The Agency disagrees. It is noted that local governments have indemnification under current statutes to keep the risk of litigation minimal. See Minn. Laws 2004, Ch. 163, § 5, codified at Minn. Stat. § 216D.04, subd. 3(g), which provides that an operator or other person providing information pursuant to the subdivision is not responsible to any person for any costs, claims or damages for information provided in good faith regarding private or customer-owned underground facilities. The Agency maintains that the electric utilities were satisfied that the risk of litigation would lower sufficiently with the passage of this statute, and the OPS has heard no complaints since.
i. Noted that the Gopher State One-Call Center will find increased costs associated with creating and maintaining another means of communication between affected parties by accepting and providing information about the disposition of notices that have been cleared as “no conflicts”. It is anticipated that a nominal increase (possibly ten cents per notice) and the fee charged currently by the Center to operators who are obligated under statute to support the expenses of the Center, will result.
j. Maintains that the costs or consequences of not adopting the proposed rules include that information on underground facilities and public rights-of-way will continue not to be maintained, by creating a risk to excavators and the public, that excavators who need to perform emergency excavations may be unduly delayed for lack of information (which may create a potential risk to public safety) and that service laterals will continue not to be located, creating an additional public safety risk to excavators and the public. A concern exists also that pre-construction meets will continue to be held without standards and excavators and operators may rely upon mistaken communications about excavations, and that excavators will not have a method to verify sites determined not to be in conflict with their facilities when no flags or markings are left behind unless they call each operator individually.
k. Maintains that there are no meaningful differences between the Code of Federal Regulations, Title 49, section 198.37 that address the subject matter found in the rules, and the proposed rules. The proposals actually bring Minnesota’s regulatory system more in line with the Federal Regulations.
l. Responded to the requirement in §§ 14.002 and 14.131, which require that an Agency’s SONAR describe how the Agency considered and implemented performance-based standards in development of its rules that emphasize superior achievement in meeting the Agency’s regulatory objectives and maximum flexibility for the regulated party and the Agency in meeting those goals, as a requirement that is met by the proposed rules as drafted. The OPS maintains that, to the extent possible and without sacrifice to public safety standards, it has proposed rules that reflect the state-promoted policy regarding performance-based regulatory systems. For example:
1. An excavator has the ultimate responsibility in determining if an emergency situation exists that is so dire that it would be a mistake to provide notice before beginning that emergency excavation.
2. In various places in the proposal, parties are exempt from certain requirements if the parties have made other arrangements or prior agreements.
3. Operators will be required to obtain information on the underground facilities located in a public right-of-way but will not be held to a specific method of obtaining that information.
4. Operators must install a locating wire in certain circumstances but can also use another equally effective means of locating underground service laterals – the choice of methodology is up to the operator.
5. Under the proposed rules, the operators in “no conflict” situations have different options available to them to meet the “positive response” requirement found in rules.
m. Minn. Stat. §§ 14.131 and 14.23 require that the SONAR contain a description of the Agency’s efforts to provide additional notice to persons who may be affected by the proposed rules or explain why those efforts were not made. In that connection, the Agency developed a plan to provide additional notice to persons affected by the proposed rules, which notice plan was reviewed and approved by Administrative Law Judge George A. Beck on September 19, 2003. Pursuant to the additional notice plan, the OPS completed the following:
1. Copies of the Request for Comments, Hearing Notice, and Proposed Rules and Statement of Need and Reasonableness were mailed to the League of Minnesota Cities, the Association of Minnesota Counties and the Minnesota Association of Townships.
2. The same documents were e-mailed to umbrella organizations and associations with a particular interest in the subject matter of the rulemaking, which e-mails also contained a request by the OPS for the organizations and associations to disseminate the information to their members.
3. The copies of the documents noted above were e-mailed to individuals, organizations or groups having a continuing relationship with the Office of Pipeline Safety and a particular interest in the subject matter of the rulemaking, including the 49 damage prevention stakeholders from underground facility operators, excavators, municipalities and government regulators who were assembled by the OPS to critique the Gopher State One-Call System.
4. The Request for Comments and Hearing Notice were published in DIG, a newsletter sent to members of the Gopher State One-Call System, which includes 30,000 members, to provide affected persons with pertinent information contained in the Request and the Proposed Notice of Hearing. The newsletter was sent out on or around September 26, 2003, with information on possible topics for the proposed rules and information on how to contact the Agency. The December 2004 issue of DIG contained information on the proposed rules, listed the Agency contact person and noted that a copy of the proposed rules and a copy of the SONAR could be obtained directly from OPS.
5. A copy of the Request for Comments, the Hearing Notice of Intention to Adopt Rules, the Statement of Need and Reasonableness and the proposed rules were placed on the Office of Pipeline Safety’s web page available throughout the website of the DPS. This was an effort to reach interested and affected members of the general public.
The OPS maintains that the use of direct mailings, use of industry groups to e-mail or mail information to their members, use of newsletters and other industry publications, and using the internet is sufficient notice to affected persons in groups regardless of affiliation or location. Particular attention was paid to include local government participation by providing notice to organizations such as the League of Minnesota Cities and requesting dissemination of information to its members.
19. The proposed rules will not affect farming operations. Therefore, no notice to the Commissioner of Agriculture was required under Minn. Stat. § 14.111.
19. The Agency has complied with all applicable procedural requirements necessary for the adoption of the proposed rules and amendments.
RULE-BY-RULE ANALYSIS
21. The balance of these Findings concern an analysis of the need for and reasonableness of the Department’s rules as finally proposed. In response to comments and upon additional review, the Department made modifications to some of its initial proposals. A substantial change analysis, detailed below in each instance, was performed by the Administrative Law Judge with respect to each of these changes. Any of the rules as finally proposed not discussed below are found to be necessary and reasonable.
7560.0100-Definitions
22. Subpart 4 Locate. Subpart 4 defines “locate” as a noun, with the language “‘Locate’ means an operator’s markings of an underground facility.” The proposal published in the State Register converted the word to a verb by inserting the words “to provide” after the word “means.” In its comments, the Department stated that the proposed amendment published in the State Register was an error and is being withdrawn, so that the definition remains unchanged from its present version.
The Agency declined to recommend adoption of an amendment suggested by the League of Minnesota Cities (LMC) which would have modified the definition of “locate” to include allowing “maps, drawings, diagrams, and/or other records used in the operator’s normal course of business to indicate the location of an underground facility”. The Department elects at this time to keep the original language of the rule as it exists, reasoning in part that to modify it as suggested by the LMC would result in a substantial change.
The Administrative Law Judge finds that the Agency’s decision not to modify the definition of “locate” in this rulemaking process is reasonable.
23. Subpart 10. Public right-of-way. The LMC requested that the phrase “utility easements of government units” be deleted from the definition of public right-of-way. The LMC was joined in this request by the Minnesota Rural Electric Association (MREA), which believes the phrase creates an undue burden on electric coops because easements are not, and will not in the foreseeable future, be widely known.
The Department declines to follow the recommendations of the LMC and MREA regarding the definition of public right-of-way. The definition proposed is similar to that found in Minn. Stat. § 237.162, and the Agency reasons that it is logical to use a familiar definition in this proposal. They argue that the very fact that the original definition found in Minnesota Statutes was written broadly to allow private utilities to make use of municipal utility easements underlines why such easements should be included in the definition proposed here. Such easements are crowded with utilities and any time a new utility adds a line or works on existing lines in such easements, all underground facilities within the area of work should be marked and located to prevent mishaps. The Department disagrees with the argument of the MERA, pointing out that information on easements is generally available from city offices in cases where a cooperative installs its underground facilities within a local government unit. In cases where local government units cannot manage their rights-of-way, it is reasoned that no utility easements would exist and that this information would be ascertained easily. In rural areas outside city limits, municipal utility easements do not exist and therefore present no problem.
The Department’s decision not to change the definition of public right-of-way as proposed originally is necessary and reasonable.
24. Subpart 12. Service lateral. This term is defined as an underground facility used to transmit, distribute or furnish commodities such as gas or water from a common source (such as a main) to an end-use customer. The definition published originally in the State Register goes on to state “A service lateral is also an underground facility that is used in the removal of sewage from a customer’s premises.”
During the comment period, the Agency requested to delete the word “sewage” in the previous sentence and substitute the word “wastewater”. This change, suggested by the League of Minnesota Cities, makes the wording more consistent with current municipal nomenclature and describes the facilities addressed in these rules more clearly. The Department agrees, and notes that the modification does not result in a substantial change from the rule as proposed because it does not change the meaning or effect of the rules as proposed in the Notice of Hearing published in the State Register.
The Administrative Law Judge finds that the substitution of the word “wastewater” for the word “sewage” in this subpart is needed, reasonable and not a substantial change. The modification is within the scope of the matter announced in the Notice of Hearing, is a logical outgrowth of the contents of the rules published originally and the comments submitted in response to the Notice, and the Notice of Hearing provided a fair warning that the outcome of the rulemaking proceeding could result in modifications such as this.
7560.0150-Public Right-of-Way Mapping and Installation
25. Subparts 1 and 2, Duty of operator to map and Duty to install locating wire. This proposed new rule is highly controversial. The main controversy regards subpart 2, which is proposed to require operators to install a locating wire (or have an equally effective means of marking) to locate each nonconductive underground facility within a public right-of-way installed after December 31, 2005. Municipalities also objected heavily to the duty created in subpart 1 to maintain a map, diagram, drawing or other information regarding the location of underground facilities within public rights-of-way installed after December 31, 2005.
Regarding the duty of an operator to map, the LMC argues that the proposed rule requires cities (Local Government Units or LGUs) to exercise control over the installation of private utility facilities and to supervise what is done below the surface of their rights-of-way. LMC argued that requiring LGUs to exercise control is beyond the authority of the Department of Public Safety, and conflicts with Minn. Stat. Ch. 237, which requires action on the part of LGUs that is permissive by statute and not mandatory. The Agency counters with the response that Minn. Stat. Ch. 216D affords distinct regulatory rights and obligations to the DPS over the subject matter of these rules which are separate and distinct from the permissive rights granted to LGUs by Chapter 237 with respect to telecommunications facilities. It reasoned that Chapter 216D regulates the activities of excavators and operators both by requiring underground facilities to be located before excavation (implying they also need to be locatable) and in a way as to limit threats to public safety and damage to underground facilities. The Department’s SONAR notes that between the years 2002 and 2003 approximately one-quarter of all damage caused to gas and electric facilities was due to missed locates or not locating an underground facility. Depending on the year, a mistake in the location of an underground facility is the second or third leading cause of damage to underground facilities.[23]
The Agency notes that Minn. Stat. § 216D.04, subd. 3, requires operators to find and mark their underground facilities so that excavators have notice that there are underground facilities within an area of proposed excavation. Subdivision 4 of that statute requires excavators to use the information provided by operators to determine the “precise location” of the facility without damaging it before the excavator can commence excavating activities within two feet of the marked location.
26. The primary objective of Ch. 216D is to create a system that promotes public safety by keeping track of all underground facilities located within the state so that excavating activities may be performed with limited public safety threats. The Department reasons that the responsibility for doing so lies first with the operator who must keep track of underground facilities and provide notice of their existence to an excavator. It is noted that the rule proposal provides flexibility on the method in which records are maintained and does not require a specific accuracy level for records or mapping. A fair reading of Minn. Stat. § Ch. 216D leads to a conclusion that all underground facilities are covered by its provisions, since the statutes include provisions for keeping track not only of facilities that are in-service but also facilities considered abandoned.[24] The Administrative Law Judge does not agree with LMC’s argument that the DPS surpasses its regulatory authority by mandating that LGUs manage their rights-of-way. The Department has complete regulatory authority to enforce Ch. 216D as it applies to LGUs that are considered operators. Certainly LGUs have the right to and many do manage and control their rights-of-way. The Department has regulatory authority to make operators responsible for underground facilities. That authority over such subject matter is clear and is separate and distinct from the permissive rights of LGUs to manage their public rights-of-way. Even if LGUs do not manage their rights-of-way or claim ownership of the lateral underneath them, the Department still has the right and authority to require that LGUs meet the statutory obligation to maintain information on those facilities. One of the responsibilities is location of the underground facilities and the giving of notice to excavators that underground facilities exist at specific places.
27. LMC argues that installers, not the operators, should be required to create the type of information required by the proposed rule. Except for installers who also operate underground facilities, the installers contemplated under Minn. Stat. Ch. 216D are excavators who, at the time of installation, have information on the location of underground facilities but are not required by statute to maintain or create that information on facilities that they do not operate. The Department reasons that, with respect to any new service lateral installed, any operator has the right to require that installers inform them about, and provide information on new service laterals installed and connected to their own facilities. It reasons that common sense implies that operators can and do ask for some variant of the same information when an installer alters the main facility by connecting a lateral to it – if not for locating purposes then certainly for proprietary, billing and service purposes. Therefore, the Department maintains that it is logical and reasonable to assume operators can require installers to provide them with the necessary information for operators to maintain sufficient information on such laterals for future locate purposes.
28. David Sahli of the Minnesota Pollution Control Agency (PCA) testified at the hearing that, with respect to sewers, LGUs have access to, have seen and have maintained detailed maps or diagrams on sewers that would be sufficient for the purposes of the proposed rule. Based on this, the Agency maintains that LGUs can and have acquired information on new laterals. The Department also declines the suggestion by the LMC to conduct a pilot project or study before imposing any new obligations in the nature of or affecting public rights-of-way. The Department believes that any rule proposal should have a specific effective date, as its current proposal contains. Adoption of the LMC suggestion could lead also to a rule that was defective due to creating an unfettered discretion to implement whatever methodology the Department would decide upon ultimately after the study connected with the pilot project without the benefit of public notice and comment or justification meeting the standards of reasonableness.
29. The Department maintains also that delaying the rule in order to conduct such a project would impede public safety. It argues that the rule is actually needed immediately to cover future informational needs created by the increased amount of current construction this state is experiencing. In deference to operators, the Department has proposed a rule to delay the requirements until 2006 so operators can implement internal practices to meet the requirements. To delay the rule longer yet for the sake of a pilot project that would impose ultimately more prescriptive requirements that might not be met so easily by such varied parties would possibly result in more controversy than exists right now.
30. The LMC argues further that the rules are unreasonable because they are too costly. The Department counters that LGUs now can require, as operators of underground facilities providing services to customers, any new installations and connections to be recorded within a city. The Agency points out also that the delay built into the rule affords operators an opportunity to set up a workable system to meet the new requirements. Further, the proposed rules allow this information to be recorded in a variety of forms. To mandate a certain and specific method of keeping records would be more prescriptive and less likely to meet the needs of all the LGUs equally without imposing on some a greater cost burden than would be experienced under the current proposals.
31. The Minnesota Utility Contactors Association proposed the rule to be modified to require installers to furnish operators with a map, diagram, drawing or geospacial information showing the location of the interconnected lines and locations that will allow the operator to locate the line in the future. The Department declines to adopt MUCA’s proposed modification in this regard. It is not persuaded that a rule is necessary for operators to obtain information from installers. The type of modification requested by MUCA would impose a new duty, not included in the rules as proposed, on a different party and all these factors may constitute a substantial change in the rule. Therefore, the DPS is not willing to modify the proposed rule as requested.
32. With respect to the duty to install locating wire proposed for subpart 2 of part 7560.0150, the Department maintains in the SONAR[25] that the duty to install a locating wire when installing nonconductive underground facilities such as plastic pipe is a logical outgrowth from the operator’s statutory duty to locate and mark such facilities. After installation by the operator, there must be an accurate way subsequently to locate the facility. Because conventional methods used to locate metal or other conductive facilities do not work on nonconductive facilities, it is reasonable to require another effective means of locating to be used. The review by the OPS has resulted in the recommendation that wire be used as a method to ensure future accurate locating. Wire has proven efficient and accurate for underground facilities and is the most common method used to make non-metallic structures locatable underground. But the rule has some latitude built in – an operator can choose any other equally effective means as well.
33. It is important to note that the rule requirement applies only to underground facilities installed within a public right-of-way. Comments suggesting that the requirement is not workable because installation methods must be consistent with the Minnesota Building Code are misplaced. The Minnesota Building Code does not apply to public rights-of-way. Therefore, the rule proposal herein does not contradict any Building Code requirement or lack thereof. Regardless of who owns the underground facility, be the entity private, public or utility, the underground facilities located within a public right-of-way are subject to the jurisdiction of the DPS/OPS and therefore subject to this rule proposal, even if such facilities continue on to private property. To require operators to provide accurate information about their facilities so excavators can also fulfill their statutory duty to excavate without damage is a general need established convincingly on the record. The Department argues also that the rules are reasonable with respect to not creating any new expenses on their own because they simply expand on the uniform locating requirements already established under Minn. Stat. § 216D.04, subd. 3.
34. With regard to the duty to install locating wire, Mr. Mark Palma, an attorney with Hinshaw & Culbertson, L.L.P., representing Gopher State One-Call, requested that the Department define “minor repairs” because reasonable parties could differ in their interpretation of the phrase. In its post-hearing comments, the Department agreed with Mr. Palma’s suggestion and proposed that the phrase “minor repairs” be defined as “repairs to or partial replacement of portions of existing service laterals located within a public right-of-way for purposes of routine maintenance and upkeep”. It is found that this proposed modification of the rules as published is necessary and reasonable because it helps clarify the rule as proposed. It does not constitute a substantial change because it does not alter the meaning of the proposed rule in any way and is a logical outgrowth of the Notice of Hearing and comments submitted in response to that Notice.
35. The LMC argues that the requirement to install wiring or other effective means of locating nonconductive underground facilities after December 31, 2005 is unreasonable because current technology does not work, is not accurate, and that locating wires are unreliable when used to locate water and sewer laterals at the depths that they are found in Minnesota. The LMC asserts that the Department has failed to place on the record any evidence showing that locating wires are reliable, and therefore the Department fails to meet the standard that rules have to be related rationally to the goals they desire to accomplish in order to establish reasonableness. It is argued further that even if current technology does work, the cost of the technology is prohibitive. The LMC argues with respect to this subpart that the Department should undertake a series of pilot projects to test and study various installation techniques available before requiring one in particular (such as wiring) and should propose a particular method later because many LGUs have limited budgets and staff, so they should not be expected to adopt untested and unproven methodology. The LMC also urges the Department, after the appropriate research, to establish a statewide installation standard that all service installers must meet if the Department believes private service laterals must be installed in a certain manner.
36. For the reasons already stated above regarding the Department’s response to LMC’s challenging the rule proposing the maintaining of information, the Department argues that it has the authority to require LGUs now to do what is necessary to help make underground facilities locatable. To that end, the Department proposed a rule requiring LGUs to install locating wire or other equally effective technology that is used to help mark the location of hard-to-find nonconductive underground facilities installed after December 31, 2005. It argues that the rule is rationally related to the public safety objective of locating underground facilities and is not persuaded of a need to wait beyond that date to complete more studies. The Administrative Law Judge finds that the agency has demonstrated the need for adopting its proposal now, and finds the proposed rule necessary and reasonable.
37. The LMC’s argument that existing technology is not able to locate water and wastewater facilities, and that any technology existing is not cost effective, is disputed by the Agency. The proposed rule allows LGUs to use whatever method or combination of methods best suits their circumstances, and does not cause disruption to the methodology being employed by LGUs who presently are locating water and wastewater laterals. The Department believes it appropriate to leave up to the discretion of the LGUs as to where locator wires should be terminated, for example at curb valves, exterior water meters or ground level markers. Regarding the use of locating (tracer) wire-type technology, it notes that gas companies have been using tracer wires effectively since the late 1960s when plastic facilities were first installed. Tracer wire has proven to be inexpensive and reliable and today is still the primary method of locating nonconductive facilities used by the gas industry.
38. It is important to note that the rules do not require the mapping or facility record keeping of the depth of the underground facilities. The rule as proposed requires only surface coordinates or horizontal locations to be located (marked).
39. The Department acknowledges that existing technology might not be perfect, but maintains that it is effective and can be used (is feasible). Testimony from the LGUs acknowledges that no one knows when “perfect” technology will exist in this field. The Department conceivably could introduce one method which works better than others to make nonconductive facilities locatable, but soil conditions, the amount of underground facility congestion and other factors would still play parts in the accuracy of any given technology.
40. The Department listed five available technologies in its Statement of Need and Reasonableness, but that list was not meant to be exclusive. The DPS/OPS decided it was better left to individual LGUs to determine what is best for their unique circumstances, including their own budgetary constraints. The Agency decided that a prescriptive rule requiring one form of technology without any latitude would not be reasonable for promoting accuracy or saving costs. By allowing for “other effective means”, the rules also leave room for future technological advances.
41. In its post-hearing comments, the Agency emphasizes that only after an operator meets its statutory obligation under Ch. 216D to locate does the excavator have an obligation to use the information provided to determine further where the underground facilities are located before commencing excavation. The Department does not agree that there is an obligation for excavators to perform the duty imposed by the law on operators to make locatable the facilities which they are responsible to locate. The responsibility for making an underground facility locatable lies appropriately with operators. Therefore, the Department argues, the rule proposed is within the scope of authority given to the Department and assigns appropriately the responsibility of making a facility locatable to operators. The Department emphasizes that the proposed rule applies only to new installation of nonconductive facilities in public rights-of-way, and thus is not dependent on other codes having jurisdiction on private property, so there is no question of overlapping jurisdiction. It believes the rule proposal is within the purview of its authority and related rationally to the objective of making all underground facilities locatable, and also that it does not fail for being unreasonably costly.
42. The Department rejects the recommendation of MUCA to expand the rule as proposed to include the length of the entire service lateral. If it were to do so, the Department’s jurisdictional authority may be brought into question with respect to codes such as the Building Code, as noted above.
43. In its comments, the League of Minnesota Cities supported its earlier arguments with a letter submitted by Mr. Leonard Krumm of CNA Consulting Engineers. Mr. Krumm’s experience includes many years as a professional engineer for the City of Minneapolis Public Works Department. Mr. Krumm states in his comments that locating wires are not a “proven, reliable technology for use in identifying private laterals connected to water or sewer pipes.” He believes the OPS has not explored the “best methods of locating water and sewer laterals.” The Department responded that based on its consulting with gas industry experts, it believes that gas companies have been using “locating wires” for years on nonconductive plastic facilities, and that those facilities have been installed at depths of up to 15 feet. As noted earlier, if the methodology is accurate up to 15 feet deep, satisfactory results should be provided when applied to water and sewer laterals buried only 8 or 9 feet deep. It is argued by the DPS that an agency may “make judgments and draw conclusions from ‘suspected, but not completely substantiated relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not certifiable as “fact” and the like’”.[26]
44. The Department acknowledges it does not know of any current technology that is 100 percent accurate, but that the use of “locating wire” is meant to be a minimum standard that it believes is reasonable. As noted above, whether or not a proposed rule provides the “best” or most reasonable standard available does not control whether or not it is reasonable for purposes of adoption. For an ALJ or a reviewing court to pick a more reasonable alternative, when the Agency’s proposal has a rational basis, would invade the policy-making discretion of the Agency.[27]
45. Attorney James Strommen, representing the Suburban Rate Authority (SRA), filed comments suggesting also that the “locate wire” requirement is not related rationally to the intended public safety goal. He also argues that the Department has failed to provide evidence that demonstrates the reliability of locating wire and in fact, most evidence provided supported its unreliability as a method for locating water and sewer laterals. Strommen argues that because the standard the agency has set is unreliable, the rule creates an absurd result. He contends that the proposed rule requires that LGUs use a means that is not reliable or effective (“locating wire”) in order to adhere to this rule. The Administrative Law Judge is not persuaded by Mr. Strommen’s argument, and finds that the Department has entered sufficient evidence into the record to show that the use of locating wires is a reasonable minimum standard that is rationally related to public safety goals. The Department’s final proposal for subpart 2 of Minn. Rule 7560.0150 is found to be needed and reasonable, and the modifications proposed to it are found not to constitute substantial changes.
7560.0225 Excavator Responsibilities Regarding a Locate
46. Mr. Palma requested that subpart 1 of this rule part be repealed in its entirety. Palma asserted, and OPS agreed ultimately during the comment period, that it had overlooked a technical change precipitated by legislation passed in 2004. It is the opinion of Mr. Palma and the Department that the rule subpart in question was made obsolete when the legislation took effect and that repeal of the subpart would in no way affect the rights of regulated parties. The rule had provided that an excavation or location notice is valid so long as the excavator commences the excavating activity within 96 hours of the time stated on the notice. Minn. Laws 2004, Chapter 163, Section 6, codified as an amendment to Minn. Stat. § 216D.04, subd. 4(b) removed the 96-hour restriction. The statute now reads that if the excavator or land surveyor cancels the excavation or boundary survey, the excavator or land surveyor shall cancel the notice through the notification center. The statutory authority authorizing the validity of a location notice only if the excavation commences within 96 hours of the commencement time stated on the location notice has been removed. Given that, the DPS agrees that it is necessary and reasonable to modify the rules so that the rules are consistent with statute and legislative intent. The Administrative Law Judge agrees, and finds that to repeal the rule subpart is necessary and reasonable and does not result in a substantial change to the rules. The repeal is within the scope of the matter announced in the Notice of Hearing and is in character with the issues raised in that notice. It is a logical outgrowth of the contents of the notice and the testimony submitted in response to it. Significantly, the Notice of Hearing provided fair warning that technical amendments to make the rules consistent with statute could be part of the outcome of the rule proceeding and the rule in question. No persons will be affected adversely by the repeal of the rule since the rule is obsolete.
7560.0250 Locate Standards
47. The agency believes that there is a need for marking standards to be listed at a place other than Minn. Stat. § 215D.04, subd. 3(d). The statute requires use of standardized color codes to designate underground facilities. The issue to be addressed by the proposed rule part is that miscommunication increases when there is a lack of standardization of markings and flags. The Department notes that standardized marking helps avoid misrepresentation between operators who designate the positions of underground facilities and excavators who work around those facilities.
48. The Administrative Law Judge finds that the Department’s argument that the rule is necessary to ensure the effective and uniform enforcement of Minn. Stat. § 216D.04, subd. 3 (Location of underground facilities) constitutes a demonstration of need. The rule as published specifies what must be included when an operator locates an underground facility, lists the options an operator has when a “no conflict” situation exists, details the placement of “no conflict” flags or markings when an operator chooses to place them and requires the Gopher State One Call Center to communicate the reported status of each notice received under the subpart to the excavator before the excavation is scheduled to begin. Regarding subpart 1, the LMC suggests that the subpart should be modified to provide that an operator does not need to locate and mark a facility. Rather, operators would be requested only to provide maps, drawings, diagrams and other records used. For the same reasons as it rejected the LMC’s proposed modifications regarding this subject matter under its response for the definition of “locate,” the agency disagrees. DPS/OPS believes that the League’s interpretation is incorrect and that their proposed modification would serve no public safety benefit and would constitute a substantial change.
49. Regarding an operator’s duties in no conflict situations (proposed subpart 2), Mr. Palma testified that the Gopher State One Call Center’s estimation of costs associated with positive response and referred to in the Department’s Statement of Need and Reasonableness was incorrect and based on the Department’s initial proposal that all operators give notice to Gopher State as to their disposition of tickets. The MREA requests that the subpart be withdrawn, along with subparts three and four in their entirety because a positive response system creates undue burdens on electric co-ops. The agency is unwilling to withdraw subpart 2 because the Minnesota Rural Electrification Association has not given the Department an alternative suggestion nor any other reason to believe it would agree to any form of a positive response system.
50. MUCA suggests the phrase “not in conflict” be replaced with “that is not in the defined area of excavation.” The Department rejects the suggestion because it believes the rule is clear as drafted and published in the State Register.
51. Regarding subpart 3 of proposed Minn. Rule 7560.0250, the MREA would like subparts 3 and 4 withdrawn in their entirety because of its allegation that the proposed positive response system creates undue burdens on cooperatives, in conjunction with the comments by many rural electrical co-ops stating that they do not believe the system would work since the old No Locate Required system also did not work. The Department rejects that suggestion because MREA has not provided it with an alternative suggestion for a positive response. It notes that the positive response system serves an integral part in promoting public safety, as described and justified in the SONAR. It notes further that the reasons the NLR (No Locate Required) systems did not work do not apply with respect to the positive response system-the NLR system was an administrative practice used by Gopher State One Call for billing purposes instead of a mandatory rule-regulated system linked to public safety issues. Also, since it was not mandatory, it was not followed strictly and the information was not always handled immediately. Not all operators took the time to identify all their NLRs on a timely basis (at least 24 hours before the start date and time on the ticket). Excavators did not use the system routinely because NLR was an unreliable system. It is reasoned by the DPS that the proposed rules eliminate the weakness of the old system.
52. In its initial comments, the Department agreed with Mr. Palma that subpart 4 (Duties of the notification center) needs to be modified to reflect the concerns of the Gopher State One-Call Center. The Department believes it is necessary and reasonable to modify the proposal in accordance with Mr. Palma’s suggestion to keep ticket prices within the original cost estimate. The modification would require only excavators who need to verify “missing” locates to view any positive responses received electronically by the One-Call Center. As opposed to requiring the notification center to make at least one attempt to notify the excavator at an email address or fax number provided by the excavator on notice, the modification requires that the notification center shall make “available the information received by operators pursuant to this section through an electronic means.” The agency maintains that the proposed modification is not a substantial change because it still requires the notification center to make available to excavators the information it receives. The difference is that the modification does not require at least one contact to be made by the notification center in the form of an email or facsimile. The notification center is no longer required to contact actively all excavators including excavators who do not need the information.
53. It is found that the modification proposed at subpart 4 does not make the rule substantially different than the proposed originally because the difference is within the scope of the Notice of Hearing and is in character with issues raised in the notice. The modification is a logical outgrowth of the contents of the notice and the comments submitted as response to the notice. The subject matter of this modification-positive response with respect to notification centered duties-is not so great as to make the modification substantially different from that contained in the notice.
7560.0325 Emergency Excavation Notices
54. The agency believes that because the statute on which this rule proposal is based, Minn. Stat. § 216D.04, subd. 1, does not give direction as to procedures to follow in an emergency situation, it is necessary to specify clear procedures to follow at such times. The statute provides “except in an emergency, an excavator shall…contact the notification center and provide excavation or location notice….” The statute does not give direction as to procedures to follow in an emergency. The Department maintains that it is necessary to specify clear procedures to follow in an emergency situation. The Administrative Law Judge finds that a need for this rule part has been established.
55. The proposals for 7560.0325 were not controversial, and are explained and justified thoroughly in the Statement of Need and Reasonableness.[28] The MUCA and LMC offered friendly amendments, which have been adopted by the Department. At subpart 1, the words “to the notification center” are inserted between “notice” and “before” in the first sentence of the subpart. At subpart 3B and subpart 4A, the words “locate and” are added to the beginning of the subparts.
56. It is found that the modifications proposed by the Department at 7560.0325 are necessary and reasonable. In the first instance, insertion of the words “to the notification center” are clarifying only. The following two modifications, adding “locate and” at the beginning of the two subparts before the word “mark” follows from a suggestion by the LMC that proposed substituting “locate” for “mark.” Adding the words “locate and” where finally proposed is found necessary and reasonable in order to make the newly proposed language consistent with language found in the rest of the rule and statutes. It is found that none of the changes proposed for this part constitute substantial changes.
7560.0350 Excavation Notice Requesting Meet
57. The agency proposed to modify subpart 1 by adding the words “and the Notification center shall relay this information to the affected operators” at the end of the second sentence originally proposed for this subpart, which deals with excavator duties. The proposed modification does not result in a substantial difference from the rule as proposed, but simply clarifies the role of Gopher State One-Call and in no way alters the meaning or effect of the rule as proposed initially. The Notice of Hearing gave fair warning that the rule as modified could be the result of the rulemaking proceeding. It is found that subpart 1, as modified, is necessary and reasonable.
58. With respect to subpart 3, dealing with the start date and time for an excavation, the Department proposes simply to insert the words “excluding Saturdays, Sundays, and holidays,” in the first sentence, after the word “provided.” It is found that this modification does not result in a substantially different rule because it is simply a technical change to correct a drafting error in the proposed rules. The substance of the rule as it was originally intended by the Department has not changed, and the modification is within the scope of the matter proposed in the Notice of Hearing.
59. With respect to subpart 4 of part 7560.0350, the League of Minnesota Cities proposes modifications which will require copies of required documentation and minutes from meets to be given to all affected operators within a certain amount of time. The Department declined to modify this rule subpart as LMC requested. It did consider the issue of creating a rule requiring excavators to disseminate minutes and/or other documentation to affected operators, but decided that the Department should allow the excavator to decide whether or not to share this information rather than mandate it in the rules. Such a stance is consistent with the Department’s position that it is trying to promote flexibility throughout this rule package. As a result, DPS/OPS decided that excavators should not be required to produce information for every affected operator. It was reasoned that interested operators could easily request the information from the excavator. The Department was persuaded also that, for regulatory purposes, it was not necessary to have more than one copy of the documentation on hand.
Part 7560.0375 Locating a Service Lateral
60. A service lateral is an underground facility that is used to transmit, distribute or furnish gas, electricity, communications, or water from a common source to an end-use customer or an underground facility that is used in the removal of waste water from a customer’s premises.[29] “Underground facility” is defined as an underground line, facility, system and its appurtenances used to produce, store, convey, transmit or distribute communications, data, electricity, power, heat, gas, oil, petroleum products, water including storm water, steam, sewage and other similar substances.[30] The Department’s proposal in part 7560.0375, for an underground facility operator to locate a service lateral before the start date and time on the notice for excavation in accordance with items A through C in the proposed part, created a great deal of controversy. The controversies swirl around who actually owns the facilities, who is responsible for them and whether the agency goes beyond its statutory authority in attempting to regulate the locating/marking of such facilities in the manner laid out in the proposal.
61. Sam Erickson, on behalf of the Minnesota Rural Electrification Association, opposes any service lateral locating and marking by electric utilities. The Department reasons that Mr. Erickson’s opposition means that the MREA is opposed to the rule only as it applies to locating and marking beyond the “point-of-sale” (the meter), because electric cooperatives already locate and mark up to meters. The Department proposes at subpart 1A of 7560.0375 to require an operator to locate a service lateral anywhere within a public right-of-way, even if the meter or connection to the customer’s underground facility is within the right-of-way.
62. The MREA argues that electric co-ops do not own, install or maintain the lines beyond the meter. The reasoning then becomes that anything located beyond the meter must be located by a licensed electrician because only persons who are licensed may work on those portions of the lines. MREA asserts that electric utilities are exempt from licensure, but that the tasks included under this exemption do not include “locating” privately-owned lines. Therefore, MREA reasons that electric utilities are not allowed to locate privately owned lines. The cooperatives also are concerned that the proposed new requirement would result in prohibitive costs to the cooperatives due to increased ticketing and the need for additional persons, noting that the only way to locate some private electric lines is to get into private panels and induce a signal or maybe even shut off the line. Another concern is about electric lines that run back across a public right-of-way to serve both houses or sheds, which (according to the proposed rules, MREA argues) an electric co-op would have to do to locate such lines as well.
63. The Department concedes that a person must be licensed to work on the customer-owned portion of electric lines, but disagrees with the MREA interpretation that “locating” customer-owned underground facilities falls within the definition of “electrical work” found at Minn. Stat. § 326.01, subd. 6(f). That statute characterizes electrical work as “installing, altering, repairing, planning, or laying out electrical wiring…” The Department maintains that no part of this definition can be construed to include marking and locating an underground line for the purposes of the proposed rules. The Department inquired with the Board of Electricity as to its interpretation of “electrical work.” The Board of Electricity’s email responding to the Department inquiry, attached to the Department’s post-hearing comments filed February 22, 2005, indicate that the locating and marking of underground cables be accomplished without performing any tasks that fall within the definition of “electrical work” as defined in § 326.01, subd. 6(f).
64. In its comments, the agency established that customer panels did not have to be opened in order for electric facilities to be located electromagnetically.
65. The MREA and many individual rural electric co-ops argue that the cost of implementing the proposed rule would be overly burdensome. The Department disagrees, noting that it has no further evidence indicating that higher ticketing volume will result. The agency is not convinced that it is common to find areas where lines to the meter above ground and the meter are within the public right-of-way (in those cases underground service laterals could lead off the meters that run to the end of the public right-of-way or the property line). The facilities just described would be required to be located by entities such as the electric cooperatives under the rule proposal, but the Department believes that new service area registrations will not be so substantial as to result in dramatically higher ticket volumes causing unreasonable, increased costs. The Department maintains that very few, if any service areas have meters located on utility poles or some such above-ground facility found within the public right-of-way. To the extent such situations exist, the Department reasons that the electric co-ops have, or should have registered most of their service areas already in order to locate lines up to the meter, because they have noted in their comments that they already do locate up to meters.
66. The agency does not dispute that there will be costs associated with this proposed subpart, but the extent of such costs should not make the rule unreasonable. It is noted that the service laterals contemplated for location should be located for overriding public safety reasons. If an owner or tenant is not an “operator” for purposes of Chapter 216D, only the utilities are left to locate the lines.
67. In its SONAR[31] the Department notes that Part 7560.0375 involves facilities (service laterals) that historically have not been located or have been inconsistently located and marked because of claims they are not owned or operated by the service utility. Such facilities commonly are located on property within a public right-of-way and are connected to a residence or business located on private property. In almost all cases the business or homeowner is not registered with the One-Call Center, is not set up to receive the location requests via fax or computer modem, does not have the expertise to perform locates within 24 hours of receiving notice and often is not even aware that they would be responsible to locate underground facilities. Such facilities are likely to be damaged if they are unmarked because excavators may not be aware of their presence in the public right-of-way. The MS 216D Review Committee recognized this problem as a high public safety concern.
68. The Department reasons that it is important to place primary responsibility for identifying underground facilities on the entity that is in the best position to maintain records and locate the underground facilities-the facility operators. The OPS does not believe the legislature intended to place primary responsibility for locating underground facilities on private property owners. The proposed rules are found to be generally necessary to clarify locate responsibilities associated with service laterals in the public rights-of-way and to assign such responsibility properly and reasonably to utility providers (including local government units) rather than to the private property owners or customers.
69. As noted in Minn. Stat. § 216D.01, subd. 9, a person is not considered an operator solely because that person is an owner or tenant of real property where underground facilities are located if the facilities are used exclusively to furnish services or commodities on the property unless that person is the state, a state agency or a local government unit. Therefore, for the purposes of this regulatory scheme, even those considered owners of the service laterals found under their private property are not considered operators for the purposes of these regulations if they are customers. The Department notes also that private property owners or tenants lack the specialized knowledge to locate facilities in a public right-of-way compared to utility operators. The agency argues further that in order to acquire information on underground facilities, a private property owner or tenant most likely will go to the local government unit or underground facility operator in any case. Minn. Stat. § 216D.03, subd. 1 requires also that every operator must participate and share in the costs of the notification center (the Gopher State One-Call Center). The Department does not believe the legislature intended to require private property owners served via service laterals located in public rights-of-way to participate in the Gopher State One-Call Center. Such a result would be unduly burdensome for the Center and unreasonable for private property owners.
70. The Department reasons that unless it is acceptable for excavators to excavate blindly in areas where service laterals lie underneath, it is still necessary to locate such laterals that lie within the public rights-of-way, and that the statutes noted above require by definition that the party to do that job is the operator of the facility supplying the commodity or service to the customer. Based on that, the Department urges that it is reasonable for the proposed rules to require that operators of underground facilities locate not only their own underground facilities but also the service laterals found under the same public rights-of-way.
71. The argument noted above made by rural electric cooperatives, that under the proposed rules the cooperative is required to locate all underground electric services laterals located within the public right-of-way, including lines that might cross back over the right-of-way to service a shed or boathouse, has persuaded the Department that it is unreasonable to require electric co-ops to have to anticipate, search, locate and mark such additional lines. Therefore, the Department proposes a modification to the rules that would only require locating and marking laterals within the public right-of-way up to the point where the services lateral first leaves the right-of-way. To accomplish this, the Department proposes adding the words “up to the point where the service lateral first leaves the public right-of-way” at the end of the originally-proposed subpart 1A. to part 7560.0375. The Administrative Law Judge is persuaded that the change proposed is necessary and reasonable and does not result in a substantial change because the intent of the rule does not change. The intent of the rule as proposed was to require service laterals to be located and the modification limits only how much of a line is expected to be located and marked. To limit the responsibility for marking and finding service laterals up to the point where they first leave the public right-of-way is sufficient, especially if requiring that utilities find and mark service laterals that may re-enter the right-of-way at several points would cause undue hardship. Fair warning was provided in the Notice of Hearing that the extent of responsibility for operators to locate service laterals could be modified.
72. A similar amendment is proposed by the Department for item C of subpart 1, and for the same reasons noted in the preceding finding the modification of subpart 1, item C, is found to be needed and reasonable and not a substantial change.
The change offered by the Department to subpart 1, item C was prompted by the testimony of Brian Herberg, the Mayor of Rockville, who testified that the rule as drafted initially would put great burdens on his city because farm water lines frequently cross the road and often run parallel to the road within the road right-of-way. Since farmers are not registered as operators within the Gopher State One-Call system, they often do not have records of the exact locations of such lines, which would be considered service laterals that would also need to be located pursuant to the rules as proposed originally.
73. The SONAR, at pages 37-39, lays out several legal arguments in support of the proposition that local government units exercise authority and control over facilities located within the public right-of-way and any user action within the public right-of-way. In addition to the arguments noted above, the agency stresses that Minn. Stat. § 444.075, subd. 1a authorized any municipality to “build, construct, reconstruct, repair, enlarge, improve or in any other manner obtain” water works systems, sewer systems and storm sewer systems. In this statute, the legislature allows municipalities to control specifically the water and sewer systems within their jurisdiction, and the Department argues that this legislation strengthens the idea that ultimate responsibility for locating sewer and water laterals, at a minimum within the public right-of-way, should fall upon the local government unit. Minnesota case law also establishes a proposition that the general right of control over a water line in the street lies in a municipality because of the municipal government’s paramount authority over its streets, including the subsoil beneath the surface. Municipalities also possess extensive police powers with respect to care, supervision and control of streets.[32]
74. The Quigley court held that Hibbing was responsible for a service line break point between a water main and private hotel premises because “control of the service line was in the hands of the village.”[33]
75. It is persuasive that, under Wycon Construction Co. v. Wheat Ridge Sanitation District, 870 P.2d 496 (Co. Ct. of App. 1993) individual property owners in Colorado are not considered operators with respect to locating individual service lines in a public right-of-way. The Wycon court stated “it is difficult to comprehend that the General Assembly would have intended that individual property owners, without any specialized knowledge or equipment, would have to mark the route through the public thoroughfare to where their service lines attached to the main.”[34]
76. Some commentators have argued that it is the excavators or contractors who have the duty to locate underground facilities in public rights-of-way. The OPS does not agree with that comment, and the Administrative Law Judge finds that interpretation to be reasonable. Minn. Stat. § 216D.04, subd. 4 states that “the excavator or land surveyor shall determine the precise location of the underground facility, without damage, before excavating within two feet on either side of the marked location of the underground facility.” The Administrative Law Judge agrees with the agency that the statutory duty laid out here presupposes the operator has performed the locate and marking on the underground facilities before the excavation begins. Nowhere in Minnesota Statutes or Rules is an excavator required to perform a locate on underground facilities. As defined at Minn. Rule 7650.0100, subd. 4, “locate” means operator’s markings of an underground facility. The rules and the legislature, for these purposes, mean to distinguish the duty to “locate” from “determining the precise location of underground facilities.” The former is a duty of a facility operator, the latter a duty of an excavator or land surveyor. It is reasoned by the Department that if excavators were required by statute to be the original locators of underground facilities, they would also have to register as an operator of an underground facility (which they clearly are not).
77. Some cities have argued that the requirement to locate water and sewer laterals increases their liability because they must find or provide information on facilities they do not own, operate or control directly and for which they may not have adequate information. The Agency argues that local governments do have this information and do maintain control over service laterals and, if they do not, the rules as proposed take such a situation into account by accepting “no information available” as meeting the requirements for providing information.
78. Municipal operators argue for adopting a rule that indemnifies local governments from liability for any information provided in good faith that proves to be incorrect. The Department maintains that the indemnity sought is unnecessary because Minn. Stat. § 216D.04, subd. 3(g) has been amended to offer liability protection to operators offering good faith information on “private or customer owned” underground facilities.[35] The Agency notes further that any statute pertaining to locating underground facilities and indemnifying operators from information shared on private or customer-owned facilities implies that there already is a duty that operators should be locating and providing information on such facilities.
79. Local governments have contended that there is no technically feasible way to locate sewer and water laterals and that the state should not mandate cities to do it until they have afforded cities enough time to research and test methods. The proposed rules recognize this fact because they do not go into effect until January 1, 2006. The rules also allow for numerous ways, even ways not yet developed, to make non-conductive facilities locatable, such as locating wires, GIS mapping, electronic marking systems, above-ground markers, and ground penetrating radar. Such flexibility allows municipalities who have developed successful methods for locating service laterals to continue to use those methods. The proposal is flexible enough so that municipalities can choose the method that works best for them.
80. When laterals that provide services or commodities maintained by operators other than government units are implicated, the proposed rules require the operator of the facility/utility to locate such lines regardless of the local government unit’s control over the right-of-way. The OPS reasons that these operators were intended by the legislature to be the ones having primary responsibility for locating their facilities regardless of whether or not they are located within a public right-of-way. Such utility operators have the best information on service laterals connected to their main facilities. The Department points out that many utilities locate such service laterals as part of their standard business practices already. Therefore, the Department maintains it is reasonable to require, at a minimum, that facility operators locate the service laterals within a public right-of-way.
81. Items A through C of proposed part 7560.0375 distinguish between the different types of service laterals and how they must be located in order to reflect their unique circumstances. Item A concerns itself with operators of natural gas, propane or electric facilities, Item B is concerned with operators of communication facilities and Item C is pertinent to operators of sewage or water facilities. Item C, concerning operators of sewage and water facilities, does not take effect until after December 31, 2005. The Department has taken into consideration comments made by local governments that many of their facilities were never installed to be located easily, nor were adequate records of service laterals in these instances maintained or created. Therefore, it is reasoned that it is unreasonable to expect compliance with the locating mandated immediately upon adoption of the rules. Instead, the proposed rule provides for an effective date of January 1, 2006. Operators of sewage and water facilities also have the option either to locate or provide information on the location of a sewer or water service lateral installed before January 1, 2006. And, if no information is available on such laterals, then notifying the excavator that no information exists fulfills the rule’s requirement.
82. With respect to water lines, the OPS did not find it appropriate to place the same duty to locate up to the meter as the rules placed on gas and electric operators, because most water meters are located inside buildings due to Minnesota’s cold climate.
83. Subpart 2 of 7560.0375 allows for an exception to locating a service lateral, which exception applies to a service lateral of a customer who currently participates in the notification system as long as the customer is notified in writing of the duty to locate the service lateral. This exception is listed primarily to cover customers who have the technology to receive locate requests from the One-Call Center and the capacity to perform their own locates. An example is a telephone utility receiving power from an electric utility. A telephone utility likely has a system for receiving tickets and expertise for locating these facilities. This exception relieves the operator of a duty to locate and is reasonable because the customer has demonstrated an ability to receive locate requests and perform locates accurately by knowingly registering with the One-Call Center. Regarding the proposed exception, comments were submitted by Michael Ahern and Jerry Knickerbocker on behalf of the Minnesota Independent Coalition (MIC) and the Minnesota Telecom Alliance (MTA). Their concern is that to allow the exception without modification, there is potential for an electric provider to notify a telephone company that it would no longer locate the electric laterals servicing the phone company’s remote terminals. To avoid that problem, the MTA and MIC contend that the rule could force utilities to cross-train and equip their locators to accommodate requests from operators pursuant to this provision, which would be burdensome.
84. The Department is persuaded by the concerns stated by MTA and MIC that it is necessary to limit the exception found in subpart 2. The Department believes that the limitation suggested by MTA and MIC, however, is too limiting. The Department proposes language that would allow operators to agree mutually, in writing, to locate. It maintains that such a result is reasonable because it ensures an operator is agreeable to locating a type of service as well as offering the freedom for operators to allow other agreeable operators to locate their own facilities.
85. The Department proposes to delete the words “is notified in writing of the duty to locate the service lateral” at the end of the proposed exception and substitute “and operator mutually agree that the customer will soon locate responsibilities. The agreement must be in writing.” The Administrative Law Judge finds that the modification proposed to subpart 2, as noted herein, is necessary and reasonable and does not constitute a substantial change to the rules as published initially. The change is not substantial because it clarifies the responsibility of operators to locate service laterals within public rights-of-way. The modification clarifies also that both parties must agree to any arrangement made regarding locate responsibilities.
86. In response to an argument made by the LMC that the Department has no authority to require that LGUs manage their public rights-of-way and therefore, the Department lacks authority to require LGUs to locate service laterals in the right-of-way, which argument was presented in opposition to proposed Subpart 1, Item C of part 7560.0375, the Department responds that it clear that the legislature did not intend to include owners or tenants (customers) in its definition of “operator” for purposes of meeting the requirements of Minnesota Statutes Ch. 216D. The Department maintains it is clear that Minnesota Statutes, Ch. 216D regulates all underground facilities, exemplified by the fact that the statutes specifically include both in-service facilities as well as abandoned facilities.[36] Likewise, the statute does not exempt “service laterals” from its definition. It is noted that Minn. Stat. § 216D.01, subd. 11 defines “underground facility” as “an underground line, facility, system and its appurtenances used to produce, store, convey, transmit, or distribute communications, data, electricity, power, heat, gas, oil, petroleum products, water (including storm water), steam, sewage and other similar substances.” The Administrative Law Judge agrees with the Department that this definition clearly includes service laterals as they are defined in the proposed rules, which is that service laterals mean an underground facility used to transmit, distribute or furnish gas, electricity, communications or water from a common source to an end-use customer, and that a service lateral is also an underground facility used for the removal of wastewater from a customer’s premises.[37] The Administrative Law Judge agrees that the Department has the authority to adopt a rule that requires operators to locate water and wastewater service laterals.
87. The LMC argues also that the proposed rules require locates that cannot be done feasibly. In its comments filed on February 22, 2005, at pages 25 through 26, the Agency rebuts convincingly the argument that location of the type contemplated in the rules is not feasible.
88. The Department notes that a cost analysis could not have been done reasonably concerning local government units because circumstances affecting the obligations found in these rules are so varied and depend on future construction forecasts. The rules requiring a locate for facilities installed after December 31, 2005 will have much less impact in communities that are not growing as fast as certain others.
89. With respect to the LMC contention that the proposed rules do little to advance public safety, the Department discusses in the SONAR and through the testimony of Mr. Walt Kelly that the proposals indeed do advance public safety goals by addressing a substantial void in operators’ concepts of what their legal obligations are concerning service laterals.
90. The Department maintains that a primary reason it has focused on clarifying operator responsibilities in this rule proceeding is that operators’ interpretation of what their own responsibilities are concerning service laterals is the primary question at issue. The Department maintains that excavators know their rules already. And the Department notes that the governing statute places the burden of locating the underground facility on an excavator only after the facility has been located and marked by the operator. Even if the Department wished to explore rulemaking concerning trenchless boring techniques, the Department is not certain it has the authority to regulate installation techniques to the extent that LGUs would be satisfied. Such rulemaking may require parallel rulemaking with other agencies such as the Departments of Administration and Labor and Industry in order to accomplish an appropriate level of specificity, including installation standards and certified training advocated by the LMC in its comments. Minnesota Statutes Ch. 216D makes it clear that excavators have a responsibility to find the location of facilities already marked, but they do not have the duty to mark initially.
91. Numerous local government units commented that Minnesota is the only state that would require the action contemplated in this rule proposal and argued that since other states are not contemplating doing anything about the situation, it is not Minnesota’s place to try to set an example. In its SONAR, the Department included a number of examples to refute the implication that other states do not find the issue as concerning as Minnesota. The inclusion of other state practices also serves to emphasize the fact that the issue is of immediate concern nationwide and states are struggling to find answers today.[38]
92. MUCA, in its comments, requests modification of the rule proposal to require operators to locate and mark not only facilities installed after December 31, 2005 but also facilities installed prior to that date, provided that the operator has any information on those facilities. The Department did not follow through with MUCA’s suggestion because it believes that such an imposition in the rules at this point would be a substantial change. The Department is persuaded that providing information on older waste water and water laterals, without requiring a locate to be performed, is reasonable.
93. In its response to comments filed on February 22, the Department notes in its March 1 response document that the LMC argues the testimony heard from the MPCA should not be considered in determining the reasonableness of this rule. At page 3 of its March 1 filing, the agency rebuts successfully the LMC arguments. Regarding the LMC’s argument that the requirement to locate and mark water and waste water laterals does not promote public safety because it only requires marking the approximate horizontal location laterals, and not the depth of these laterals, the Department responds correctly that the statutes are silent with respect to locating depths of such facilities, so there is no authority to pursue rules in that regard. Legislative action would be required.
94. The SRA, through a filing by Attorney Jim Strommen, argues that the 2004 legislature limited locating requirements to exclude customer-owned service laterals. The SRA asserts that the legislature specifically requires only “information” (not to include locates and markings) to be supplied, if anything, by operators who do not own the laterals. The SRA notes that legislation originally including language requiring customer-owned service laterals to be located was dropped and amendments to the indemnification clause were then added. Therefore, the amendments limit operator responsibilities with respect to customer-owned laterals simply to provide information and not locates.
95. The Department disagrees with the SRA’s contention as stated above. It notes that amendments to Minn. Stat. § 216D.03, subd. 3(g) do no limit the locate duty found in Section 216D.03, subd. 3(a) to offering simply information to excavators concerning customer-owned service laterals. It is noted also that State Representative Ray Cox, author of the House bill that gave rise to the 2004 legislation, filed a comment during the post hearing comment period stating that he withdrew the language requiring operators to locate privately-owned service laterals after it was apparent there would be no consensus at the legislature with the understanding that this topic would be addressed in the rules. State Senator Dan Sparks’s comment (filed January 31, 2005 and included in Exhibit 8) that the subject matter is addressed better in the legislature does not resolve the question.
96. The SRA argues that the proposed rule seeks to create new law rather than enforce existing law by requiring operators to locate customer-owned service laterals. The Administrative Law Judge agrees with the Department that the requirement to locate customer-owned service laterals already exists in the affirmative requirements found in Section 216D.03, subd. 3(a). In its brief, the SRA concedes by implication that the existing definition for “underground facility” could include all facilities, whether operator or customer-owned. SRA admits further that this interpretation could require, pursuant to the requirements found in Subdivision 3(a), obligations that go beyond an operator’s ownership and authority.[39] It is found that the Department has the authority to define service laterals because these laterals fall within the meaning of underground facilities. Thus, the Department does not create new law by requiring new operators to locate customer-owned service laterals.
97. The Department argues that the SRA’s interpretation that the “information” referred to in the statutory indemnification does not include locates ignores the express obligations of operators to locate and mark underground facilities. When read within the context and meaning of the statute as a whole, “information” as it applies to customer-owned facilities should include locating and marking a facility. Minn. Stat. § 645.16 provides that the intent of the legislature may be ascertained by considering, among other things, certain specific factors listed there, such as the circumstances under which a law was enacted; the mischief to be remedied; the object to be obtained; the consequences of a particular interpretation; and the legislative and administrative interpretations of this statute. Upon considering these factors, the Administrative Law Judge is persuaded that the SRA’s interpretation cannot be adopted.
98. The Administrative Law Judge finds that the Department is correct in its argument that the indemnification clause was intended to be read and applied in conjunction with the duty of operators to locate customer-owned service laterals. In deleting the locate language from a bill intended to amend § 216D.04, subd. 3(a), the legislature did not create any new meanings to the remaining indemnification amendments at subd. 3(g) other than those that were intended originally.
99. The mischief to be remedied and object to be obtained are clear. Given that the indemnification amendments were introduced at the same time as language that was introduced requiring customer-owned locates, the only logical conclusion is that the legislature sought to obtain operator compliance in locating customer-owned service laterals by easing fears of liability. An interpretation that the indemnification amendments limited locates at the same time language was introduced requiring locates is inconsistent. The Department maintains and the Administrative Law Judge agrees that the consequence of SRA’s interpretation would be a failure to give effect to all the provisions of Chapter 216D without altering their clear and original meaning.
100. Representative Cox’s withdrawal of locate language does not indicate that remaining language would thus limit locating obligations.
101. The Department argues further that if the intent of the legislature was to limit locates to owner-operated facilities, the easiest and most logical method to do so would have been to state clearly in the statute such an intention. It argues that since the subject matter was so controversial, it is unlikely that the legislature would have provided its intent so indirectly as Mr. Strommen suggests.
102. The Administrative Law Judge cannot accept the SRA’s contention that the legislature intended that operators not be responsible for locating customer-owned service laterals. The Department is correct in its assertion it has not created new law with this proposed rule package but merely seeks to clarify and enforce existing obligations.
103. Keven Maxa, with Austin Utilities, submitted additional material concerning other states’ actions with respect to locating and marking underground service laterals. The Department responded adequately to those in its initial comments filed on February 22, 2005. It is found that the Department’s SONAR, in the single paragraph providing general information concerning a sampling of other states and what they have done in this area, does not constitute a demonstration by the Agency of the reasonableness of its proposed rules, because progress made in other states was not compared with what is happening in Minnesota. Therefore, Mr. Maxa’s submissions regarding other states are not material to whether or not the rules proposed in this package are reasonable here.
Based on the above Findings, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Department gave proper notice in this matter.
2. The Department has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural requirements of law or rule.
3. The Department has demonstrated its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3, and 14.50 (i) and (ii).
4. The Department has demonstrated the need for and reasonableness of the proposed rules by an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 4 and 14.50 (iii).
5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
6. A Finding or Conclusion of need and reasonableness in regard to any particular rule subsection does not preclude and should not discourage the Department from further modification of the proposed rules bases upon an examination of the public comments, provided that the rule finally adopted is based upon facts as appearing in this rule hearing record.
Based upon the above Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the proposed amended rules be adopted, as modified.
Dated: March 31, 2005
/s/ Richard C. Luis
_________________________
RICHARD C. LUIS
Administrative Law Judge
Reported: Shaddix & Associates
Gail M. Hinrichs, Court Reporter.
Transcript prepared.
[1] Minn. Stat. §§ 14.131 through 14.20.
[2] Mammenga v. Department of Human Services, 442 N.W.2d 786 (Minn. 1989); Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984).
[3] Agency Exhibit 3.
[4] In re Hanson, 275 N.W.2d 790 (Minn. 1978); Hurley v. Chaffee, 231 Minn. 362, 43 N.W.2d 281, 284 (1950).
[5] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[6] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v. Minnesota Dept. of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).
[7] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[8] Federal Sec. Adm’r v. Quaker Oats Co., 318 U.S. 218, 233 (1943).
[9] Minn. R. 1400.2100.
[10] Agency Exhibit 29.
[11] Transcript, pp. 21-22.
[12] SONAR, pp. 7-8.
[13] Agency Exhibit 5.
[14] Agency Exhibit 6.
[15] Agency Exhibit 5.
[16] Agency Exhibit 6.
[17] Agency Exhibit 7.
[18] Agency Exhibit 4.
[19] Agency Exhibit 8.
[20] Agency Exhibit 1.
[21] Agency Exhibit 3 at 9-18.
[22] Minn. Stat. § 216D.04, subd. 3.
[23] Exhibit 3, pp. 21-22.
[24] Minn. Stat. § 216D.04, subd. 3(a).
[25] Exhibit 3, p. 23.
[26] Beck, Gossman and Nehl-Trueman, Minnesota Administrative Procedure 343 (1998), citing Manufacturing Hous. Inst. v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984).
[27] Beck, Gossman and Nehl-Trueman, Minn. Admin. Pro. 346 (1998).
[28] Ex. 3, pp. 27-30.
[29] Proposed Minn. Rule 7560.0100, subp. 12.
[30] Minn. Stat. § 216D.03, subd. 11.
[31] Ex. 3, pp. 33-34.
[32] Quigley v. Hibbing, 129 N.W. 2d 765 (Minn. 1964).
[33] Id., at 768.
[34] 870 P.2d 496, 498.
[35] Minn. Laws of Minnesota 2004, Ch. 163, § 5.
[36] Minn. Stat. § 216D.04, subd. 4(a).
[37] Proposed Minn. Rule 7560.0100, subp. 12.
[38] Ex. 3, at 43.
[39] SRA Comment, 2/22/05, at 5.