DE 98-021
C.R. THOMPSON TRUCKING
Show Cause Hearing On Violation of Underground Utility
Damage Prevention Program
Order Affirming Violation and Assessing Penalty
O R D E R N O. 22,925
May 12, 1998
APPEARANCES: Kathleen Dumaine on behalf of Bell
Atlantic; Terry Sylvester on behalf of On Target; and
Richard G. Marini, P.E., for the Staff of the New Hampshire
Public Utilities Commission.
I. PROCEDURAL HISTORY
On November 18, 1997, NYNEX (now Bell Atlantic),
in accordance with New Hampshire Public Utilities Commission
(NHPUC) Chapter Puc 800 Underground Utility Damage
Prevention Program, Puc 803.02(e), reported damage to
underground facilities on Daniels St. in Portsmouth, N.H.
The report alleged that on July 9, 1997, C.R. Thompson
Trucking (C.R. Thompson) bent and pierced a 600-pair
pressurized lead cable that was clearly marked.
On November 25, 1997, the NHPUC Safety Division
(Division), pursuant to Puc 805.01, issued a Notice of
Probable Violation (NOPV) No. 97042, which stated, in part,
that there was reason to believe that C.R. Thompson caused
damage within the boundaries of marked facilities which
would constitute a violation of RSA 374:55,IV-a. The notice
was sent certified mail, to C.R. Thompson Trucking, P.O. Box
446, Greenland, N.H. 03804. The NOPV was received on
December 8, 1997. Pursuant to NHPUC Part Puc 805.02, C.R.
Thompson had 30 days to respond to the NOPV. C.R. Thompson
failed to respond.
On January 21, 1998, based on the lack of
response, and in accordance with Puc 805.03(a), the Division
issued Notice Of Violation (NOV) No. 97042V by certified
mail. The NOV stated that C.R. Thompson was found in
violation of RSA 374:55,IV-a, subject to a civil penalty of
$100.00, and that payment must be made within 10 days of the
receipt of notice. The NOV was received on January 23, 1998.
C.R. Thompson failed to respond.
On March 9, 1998, the Commission issued Order No.
22,862 ordering C.R. Thompson to appear at a hearing on
March 27, 1998 to show cause why C.R. Thomson should not be
held liable for penalties assessed, expenses incurred, and
whether additional penalties should be imposed.
II. POSITIONS OF THE PARTIES AND STAFF
A. C.R. Thompson Trucking
C.R. Thompson failed to appear at the hearing.
B. Bell Atlantic
The witness for Bell Atlantic, Kathleen Dumaine,
testified that during the course of routine pressure testing
of telephone cables, Bell Atlantic discovered an air leak in
a pressurized cable in the vicinity of manhole 5 on Daniel
St. in Portsmouth, N.H. Ms. Dumaine explained that through
additional investigation, Bell Atlantic determined that a
Dig-Safe ticket had been issued for that location to
Knight's Plumbing and Heating and that C.R. Thompson
performed the excavation. Ms. Dumaine stated that damage
had occurred to a 600-pair lead cable and creosote duct
which required significant repair in the amount of
$8,208.81. Ms. Dumaine noted that according to records the
area was marked and that the marks were still visible at the
time of repair. She also testified that the area had been
backfilled with unsuitable material.
C. On Target
Terry Sylvester, representing On Target, testified
that his organization has a contract with Bell Atlantic to
perform locating services with respect to Dig-Safe requests.
Mr. Sylvester indicated that a representative of his
organization responded to a Dig-Safe request at Daniel's
St., in Portsmouth, N.H. (Exhibit 2), located underground
telephone facilities, and utilized the corridor marking
method to mark the facilities with orange paint. Mr.
Sylvester noted that exhibit 2 indicated that a Bell
Atlantic representative involved with the repair noted that
the damage had occurred within the visible marks.
D. Staff
Richard G. Marini, P.E., Administrator of the
Commission's Gas Safety Division, described the actions
taken by the Safety Division in processing the violation and
provided copies of all correspondence pertinent to the case.
(Exhibit 1). Mr. Marini noted that the appropriate
documents had been sent certified mail and that
representatives of C.R. Thompson had in fact received and
signed for the documents.
Mr. Marini recommended that C.R. Thompson be
assessed civil penalties and reimburse Bell Atlantic for
damages in the amount of $8,208.81.
III. COMMISSION ANALYSIS
Based on the evidence submitted, and the failure
of C.R. Thompson to attend the hearing, it is evident that
C.R. Thompson has shown a complete disregard for the New
Hampshire Underground Utility Damage Prevention Statute, RSA
374:48 et al., and the NHPUC Code Of Administrative Rules
Part Puc 800.
Upon thorough review of the testimony and
exhibits, we find that C.R. Thompson damaged marked
underground facilities and pursuant to RSA 374:55,IV-a is
subject to a civil penalty of $500.00, and liable for
damages in the amount of $8,208.81. In addition, C.R.
Thompson failed to notify Bell Atlantic that it had damaged
the facilities and backfilled without permission. This
action constitutes a violation of RSA 374:54 and pursuant to
RSA 374:55,IV-b, C.R. Thompson is subject to an additional
civil penalty of $500.00.
Based upon the foregoing, it is hereby
ORDERED, that C.R. Thompson Trucking remit the
amount of $1000.00 via certified check or money order
payable to the State of New Hampshire and delivered to the
New Hampshire Public Utilities Commission, 8 Old Suncook
Road, Concord, N.H. 03301-7319; and it is
FURTHER ORDERED, that C.R. Thompson Trucking,
reimburse Bell Atlantic for damages incurred in the amount
of $8,208.81; and it is
FURTHER ORDERED, that the payments noted above
shall be received no later than May 29, 1998;
By order of the Public Utilities Commission of New
Hampshire this twelfth day of May, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S.
Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary