DEPARTMENT OF STATE

Public Service Commission

8000 Gas Regulations

8002 Rules to Establish an Excavation Damage Prevention Program

1.0 Purpose and Scope

This regulation establishes the Delaware Public Service Commission’s enforcement program for violations of the Underground Utility Damage Prevention and Safety Act, which is codified at 26Del.C.Ch. 8, Subchapter I ("Damage Prevention Act"). The Damage Prevention Act may be viewed online at this address:https://delcode.delaware.gov/title26/c008/sc01/index.shtml

2.0 Definitions

The following words and terms, when used in this regulation, have the following meaning unless the context clearly indicates otherwise:

"Approved notification center" means Utilities Service Protection of Delmarva, Inc.

"Commission" means the Delaware Public Service Commission.

"Designer" means any architect, engineer or other person, acting either as an employer or employee, who prepares a drawing for a construction or other project which requires excavation or demolition.

"Excavator" means any person, including those acting either as an employer or employee, intending to perform or performing excavation or demolition work.

"Operator" means any person who furnishes or transports materials or services by means of a utility line.

"Regulation" means the regulations set forth herein.

"Respondent" means the operator, designer, excavator, or approved notification center who is the subject of a notice of probable violation.

"Staff" means the staff of the Commission.

"Underground pipeline facility" means a buried pipeline facility used in the transportation of gas, such as propane and natural gas, or liquid petroleum products.

"Utility line" means any item of personal property which shall be buried or placed below ground or submerged for use in connection with the storage or conveyance of water, sewage, electronic, cable television, telephonic or telegraphic communications, electric energy, oil, petroleum products, gas or other substances, and shall include pipes, sewers, conduits, cables, fiber optic conductors, valves, lines, wires, manholes, vaults, attachments and those portions of poles, pylons or other supports below ground or submerged.

3.0 Duties of Operators

1. 3.1 Operators shall comply with the requirements of26Del.C.§803. Operators of underground pipeline facilities shall also comply with the requirements of26Del.C.§804.
2. 3.2 When providing notice of excavation damage to the Commission pursuant to26Del.C.§803(9) and (10), operators must complete the Commission’s "Underground Facility Damage Report," which can be accessed via the Commission’s website at this address:https://depsc.delaware.gov/underground-facility-damage-report/. Operators may provide photographic evidence by email toDOSPSC_DAMAGES@delaware.gov.
3. 3.3 Operators of utility lines shall comply with the requirements of26Del.C.§803(9)by providing notice to the Commission within 15 working days, or as soon as practicable thereafter if notification cannot be provided within 15 working days, of any excavation damage to utility lines which results in damage as defined in26Del.C.§802(2)cexceeding $3,000. An operator’s uncertainty regarding whether the damage exceeds $3,000 will not justify a delay in notification beyond 15 working days. If, after reporting excavation damage an operator determines that the damage did not exceed $3,000, the operator may notify staff with an updated accounting of the actual damages. After receiving such notice, staff will not consider the damage to be reportable and will not consider such damage when evaluating whether multiple, similar violations by a respondent warrant the issuance of an NOPV.
4. 3.4 Operators of underground pipeline facilities shall comply with the requirements of26Del.C.§803(10)by providing notice to the Commission as soon as practicable of any facilities damage caused by excavation which results in damage as defined in26Del.C.§802(2)to gas distribution and transmission lines; oil and petroleum products distribution and transmission lines; or dangerous materials, product lines or steam lines.

4.0 Duties of Designers

Designers shall comply with the requirements of26Del.C.§805.

5.0 Duties of Excavators

1. 5.1 Excavators shall comply with the requirements of26Del.C.§806.
2. 5.2 In addition to the requirement in26Del.C.§806(a)(8)that excavators notify operators immediately of any damage to the operator’s utility lines, excavators shall call 911 when they cause or discover a release from an underground pipeline facility.

6.0 Duties of the Approved Notification Center

7.0 Enforcement Procedures

1. 7.1 Staff shall review each notification of excavation damage to determine any violations by operators, excavators or the approved notification center, and may take 1 or more of the following actions:

   1. 7.1.1 Citation

      1. 7.1.1.1 Staff may issue a citation in writing to a respondent, notifying the respondent of the results of the on-site evaluation (if applicable) and identifying specific provisions of this regulation or the Damage Prevention Act the respondent allegedly violated.

      2. 7.1.1.2 Unless staff and the respondent otherwise agree, the respondent shall reply in writing within 30 days of receipt of the citation in 1 or both of the following ways:

         1. 7.1.1.2.1 Submit a written plan to staff specifying actions that the respondent will take to correct the alleged violation, a schedule for completion of each action step, and a final date of completion.
         2. 7.1.1.2.2 Request an informal conference with staff.
      3. 7.1.1.3 If staff accepts the respondent’s submission, staff will deem the citation resolved.

   2. 7.1.2 Warning letter

      1. 7.1.2.1 Staff may issue a warning letter notifying the respondent of the probable violation.

      2. 7.1.2.2 The warning letter shall include both of the following:

         1. 7.1.2.2.1 Copies of all relevant documentation, including the citation (if applicable) and any written violation reports;
         2. 7.1.2.2.2 Identification of the specific provisions of this regulation or of the Damage Prevention Act alleged to have been violated.

      3. 7.1.2.3 Unless staff and the respondent otherwise agree, the respondent shall reply in writing within 30 days of receipt of the warning letter in 1 or both of the following ways:

         1. 7.1.2.3.1 Submit a written corrective plan to staff specifying actions the respondent will take to correct the alleged violation, a schedule for completion of each step, and a final date of completion;
         2. 7.1.2.3.2 Request an informal conference with staff.
      4. 7.1.2.4 If staff accepts the respondent’s submission, staff will deem the warning resolved.

   3. 7.1.3 Notice of probable violation ("NOPV")

      1. 7.1.3.1 If staff has reason to believe that a material violation of this regulation or the Damage Prevention Act has occurred, or if the respondent has failed to complete the agreed upon corrective action plan relating to a citation or a warning letter, or if the respondent has multiple, similar violations, staff may commence an enforcement proceeding by issuing an NOPV.

      2. 7.1.3.2 The NOPV shall include all of the following:

         1. 7.1.3.2.1 A listing of the provisions of this regulation or the Damage Prevention Act which the respondent is alleged to have violated;
         2. 7.1.3.2.2 A description of the evidence on which the allegations are based;
         3. 7.1.3.2.3 Copies of all relevant documentation, including a copy of any written violation reports, citations, or warning letters;
         4. 7.1.3.2.4 Notice of the response options available to the respondent;
         5. 7.1.3.2.5 If a penalty is proposed, the amount of the proposed penalty; and
         6. 7.1.3.2.6 A proposed consent order.

      3. 7.1.3.3 Within 30 days after receipt of an NOPV, the respondent shall respond in 1 or more of the following ways:

         1. 7.1.3.3.1 Sign and return the consent order. The respondent shall pay the proposed penalty in accordance with subsection 7.8 of this regulation;
         2. 7.1.3.3.2 Submit a written explanation, information, or other material in response to the allegations contained in the NOPV;
         3. 7.1.3.3.3 Request an informal conference with staff.
      4. 7.1.3.4 An NOPV may be amended at any time prior to the issuance of a final order. If an amendment includes any new material allegations of fact or proposes an increased penalty, the respondent shall have another opportunity to respond under subsection 7.1.3.3 of this regulation.

2. 7.2 Informal conference

   1. 7.2.1 Upon request for an informal conference under this regulation, staff shall establish a date, time, and location for the conference.
   2. 7.2.2 At the informal conference, the respondent shall have the right to be represented by an attorney and to present relevant evidence.
   3. 7.2.3 Upon request, staff shall make available any evidence in staff’s possession which indicates the respondent may have violated this regulation or the Damage Prevention Act.
   4. 7.2.4 The respondent shall have the opportunity to rebut evidence at the informal conference, in writing within 20 days following the informal conference, or in another mutually agreed upon manner.

3. 7.3 Failure to respond

   1. 7.3.1 Failure to respond in accordance with subsections 7.1.1, 7.1.2, and 7.1.3 of this regulation shall constitute a waiver of the respondent’s right to contest the allegations in the citation, warning letter, and NOPV and authorizes the Commission, upon 30 days’ notice to the respondent, to find the facts to be as alleged in the NOPV and to issue a final order.
   2. 7.3.2 Prior to the Commission’s issuance of a final order under this subsection, the respondent may submit a written plan to the Commission specifying actions that the respondent will take to correct the alleged violation, a schedule for completion of each action step, and a final date of completion. If the Commission accepts the corrective plan submitted by the respondent, the Commission may issue a consent order.
4. 7.4 Service. Service of the citation, warning letter, or NOPV shall only be complete upon service on the respondent’s registered agent by U.S. Postal Service first class mail delivery or to a person designated by the respondent to receive service from staff by either U.S. Postal Service or by email. Staff shall serve citations, warning letters, or NOPVs by U.S. Postal Service first class mail delivery and to a person designated by the respondent to receive service from the Commission to those respondents who have requested both methods of service.

5. 7.5 Consent orders

   1. 7.5.1 Notwithstanding any other provision to the contrary, the Commission may at any time resolve an outstanding NOPV with a consent order.

   2. 7.5.2 A consent order shall include all of the following:

      1. 7.5.2.1 The signature of the respondent or a duly authorized representative, indicating agreement with the terms of the consent order; and
      2. 7.5.2.2 An express waiver of appeal or judicial review rights that would otherwise attach to a final order of the Commission.
   3. 7.5.3 A consent order is a final order of the Commission having the same force and effect as a final order.
   4. 7.5.4 A consent order may include corrective action, assessment of a penalty, and mandatory education or training.
   5. 7.5.5 A consent order need not constitute an admission that the respondent committed the violation.

6. 7.6 Final order

   1. 7.6.1 If staff and the respondent do not agree to a consent order, the Commission will conduct an evidentiary hearing pursuant to theRules of Practice and Procedure of the Delaware Public Service Commission, codified at26DE Admin. Code1001. After the conclusion of the hearing, the Commission shall issue a final order.

   2. 7.6.2 A final order shall include all of the following:

      1. 7.6.2.1 A summary of the evidence;
      2. 7.6.2.2 Findings of fact on all material issues;
      3. 7.6.2.3 A statement of the agency’s determination or action;
      4. 7.6.2.4 Signature of 3 or more members of the Commission; and
      5. 7.6.2.5 If a penalty is assessed, the amount of the penalty and the procedures for payment of the penalty.
7. 7.7 Assessment of penalties. Except as provided by26Del.C.§808, the Commission shall assess penalties in accordance with26Del.C.§810to whoever, by action or inaction, violates a provision of this regulation or the Damage Prevention Act.

8. 7.8 Payment of Penalties

   1. 7.8.1 Payment of a penalty under this regulation shall be made by check or money order to the "Public Service Commission" and sent to the "Underground Damage Prevention Program," 861 Silver Lake Blvd., Cannon Building, Suite 100, Dover, Delaware 19904.
   2. 7.8.2 Staff shall log the payment and forward payment to the secretary of the Commission.
   3. 7.8.3 If a respondent fails to pay the full amount of a penalty assessed in a consent order or final order within 30 days after receipt of the final order, the Commission may refer the case to the Attorney General with a request that an action to collect the assessed penalty be brought in any court of competent jurisdiction.

"Working day" means every day, except Saturday, Sunday and state, federal and recognized operator holidays.29 DE Reg. 548 (12/01/25)

29 DE Reg. 548 (12/01/25)

5.3Excavators may provide notice of excavation damage or of any observed violations of the Excavation Damage Act to the Commission by completing the Commission’s "Underground Facility Damage Report", which can be accessed via the Commission’s website at this address:https://depsc.delaware.gov/underground-facility-damage-report/. Excavators may provide photographic evidence by email toDOSPSC_DAMAGES@delaware.gov.29 DE Reg. 548 (12/01/25)

The approved notification center shall comply with the requirements of26Del.C.§807(b)and operate in accordance with the Federal Pipeline Safety Regulations codified at 49 C.F.R. §198.39, et. seq.29 DE Reg. 548 (12/01/25)

29 DE Reg. 548 (12/01/25)

24 DE Reg. 607 (12/01/20)

29 DE Reg. 548 (12/01/25)