HB1342: HB1342 Highways; procedures and remedies when a highway improvement project is delayed due to removal, relocation, or adjustment of utility facilities; provide

26 LC 39 4884 House Bill 1342 By: Representatives McDonald III of the 26 th, Jasperse of the 11 th, Hawkins of the 27 th, Parsons of the 44th, Cox of the 28th, and others A BILL TO BE ENTITLED AN ACT To amend Part 1 of Article 6 of Chapter 6 of Title 32 of the Of ficial Code of Georgia1 Annotated, relating to regulation of maintenance and use of pub lic road relative to public2 utilities in general, so as to provide for procedures and remed i e s w h e n a h i g h w a y3 improvement project is delayed due to the removal, relocation, or adjustment of utility4 facilities; to provide for damages; to repeal provisions relati ve to mediation boards; to5 provide for related matters; to repeal conflicting laws; and for other purposes.6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7 SECTION 1.8 Part 1 of Article 6 of Chapter 6 of Title 32 of the Official Co de of Georgia Annotated,9 relating to regulation of maintenance and use of public road re lative to public utilities in10 general, is amended by revising Code Section 32-6-171, relating to authority of department11 to order removal, relocation, or adjustment of utility facilities, as follows:12 "32-6-171.13 (a) Any utility using, occupying, or adjacent to any part of a public road which the14 department has undertaken to improve or intends to improve shal l remove, relocate, or15 make the necessary adjustments to its facility when, in the rea sonable opinion of the16 H. B. 1342 - 1 - 26 LC 39 4884 department, the facility constitutes an obstruction or interfer e n c e w i t h t h e u s e o r s a f e17 operation of such road by the traveling public or when, in the reasonable opinion of the18 department, the facility will interfere with such contemplated construction or maintenance. 19 In undertaking such removal, relocation, or adjustment, if the department has notified the20 utility in writing that the facility constitutes an obstruction or interference with the21 construction, use, or safe operation of the roadway, then the utility shall be exempt from22 the requirements of Code Sections 22-1-10 and 22-1-10.1. Nothing in this Code section23 shall be construed so as to deprive any utility relocated from a location in which it owned24 a property interest of compensation for such interest.25 (b) Whenever the department reasonably determines it necessary to have a utility facility26 removed, relocated, or adjusted, the department shall give to t he utility at least 60 days'27 written notice directing it to begin the physical removal, or r elocation, or adjustment of28 such utility obstruction or interference. If such notice is part of a highway improvement29 project, it is normally shall be provided at the date of advertisement or award; provided,30 however, that. However, prior to the notice directing the physical removal, relocation, or31 adjustment of a utility facility, the utility and the departmen t shall adhere to the32 department's utility relocation procedures for public road impr ovements which shall33 include but not be limited to the following:34 (1) The department's submission by the department to the utility of a letter and set of35 preliminary plans for the proposed highway improvement project and the utility's36 submission to the department of written confirmation acknowledging receipt of the plans;37 (2) The utility's submission to the department of plans showin g existing and proposed38 locations of facilities within a reasonable time as specified by the department in the letter39 required under paragraph (1) of this subsection; provided, howe ver, that the time40 specified by the department shall not be sooner than 30 days and shall not be greater than41 120 days. If the utility fails to submit to the department the plans within the allotted 12042 days, the department may no longer be required to pay the costs of removal, relocation,43 H. B. 1342 - 2 - 26 LC 39 4884 or adjustment as prescribed in subsection (b) of Code Section 3 2-6-170 even if those44 costs had previously been included in the contract between the department and the45 department's contractor; instead, such costs shall be borne by the utility; and46 (3) The utility's submission for department approval shall include with the plans a work47 plan in a manner and time frame established by the department's written procedures and48 instructions. No work plan shall be approved when, in the reas onable opinion of the49 department, it causes a highway improvement project to be delay ed beyond the50 completion time frames established by the department. If the u tility fails to submit an51 acceptable work plan, the department shall give the utility written notice that if the utility52 fails to submit an acceptable work plan within 30 days, the dep artment will let the53 proposed highway improvement project. The utility may be liable to the department or54 its contractors for costs incurred by the department or its contractors for failure of a utility55 to provide an acceptable work plan to the department. If the utility does not thereafter56 begin removal, relocation, or adjustment within the time specified in the work plan, the57 department may give the utility a final notice directing that such removal, relocation, or58 adjustment shall commence not later than ten days from the receipt of such final notice. 59 If such utility does not, within ten days from receipt of such final notice, begin to remove,60 relocate, or adjust the facility or, having so begun removal, r elocation, or adjustment,61 thereafter fails to complete the removal, relocation, or adjust ment within the time62 specified in the work plan, the department may exercise its rig ht to obtain injunctive63 relief as provided in Code Section 32-6-175. If utility removal, relocation, or adjustment64 work is found necessary after the letting date of the highway i mprovement project, the65 utility shall provide a revised work plan within 30 calendar days after becoming aware66 of such additional work or upon receipt of the department's written notification advising67 of such additional work. The utility's revised work plan shall be reviewed by the68 department to ensure compliance with additional work. Once the removal, relocation, or69 adjustment of a facility has started, if such removal, relocation, or adjustment falls behind70 H. B. 1342 - 3 - 26 LC 39 4884 schedule by 20 percent or more than set forth in the approved work plan, the department71 shall suspend the permit of such utility until such removal, re location, or adjustment72 progresses to at least 80 percent or more of the schedule set forth in the approved work73 plan.74 (c) In addition to the foregoing, the owner of the utility may shall be responsible for and75 liable to the department or its contractors for documented damages resulting solely from76 failure on the part of the utility to comply with requirements of the submitted and approved77 work plan under the control of the utility. If the utility owner fails to provide a work plan78 or fails to complete the remova l, relocation, or adjustment of its facilities in accordance79 with the work plan approved by the department, then the utility owner may shall be liable80 to the contractor for delay costs incurred by the contractor and approved by the department81 which are caused by or which grow out of the failure of the utility owner to carry out and82 complete its work in accordance with the approved work plan or in a timely and reasonable83 manner if a work plan or revised work plan was not submitted. Upon notification in84 writing by the department or its contractors that the utility is liable for damages or delay85 costs, the utility company shall have 45 days from receipt of such letter to either pay the86 amount of the damages or delay costs to the department or its c ontractors or to request87 mediation as provided in subsection (d) of this Code section. A utility owner shall not be88 subject to the damages or delay costs authorized by this subsection when the utility owner89 contracts with and reimburses the department to incorporate the removal, relocation, or90 adjustment of such utility owner's facilities into the departme nt's contract for the91 development or construction of the highway improvement project.92 (d) The department's utility relocation procedures shall inclu de, in addition to the93 provisions set forth in subsection (b) of this Code section, provisions for the establishment94 of mediation boards to hear and decide disputes that may arise between the department and95 the utility concerning (i) a work plan or revised work plan that has been submitted by the96 utility but not approved by the department; (ii) a contractor's claim for delay costs or other97 H. B. 1342 - 4 - 26 LC 39 4884 damages related to the utility's removal, relocation, or adjustment of its facilities; and (iii)98 any other matter related to the removal, relocation, or adjustment of the utility's facilities99 pursuant to this Code section. Such procedures shall include b ut not be limited to the100 following:101 (1) Each mediation board shall consist of one mediator who shall be designated by the102 department, one mediator who shall be designated by the utility , and an independent103 mediator who shall be mutually selected by the department's des ignee and the utility's104 designee and shall serve as the presiding officer of the mediation board;105 (2) The mediators shall hold a hearing with regard to each dis pute that is submitted to106 the mediation board for resolution, shall provide notice of the hearing to each party107 involved in the dispute, and shall afford each party an opportunity to present evidence at108 the hearing; provided, however, that unless the parties otherwise agree, the provisions of109 Code Sections 50-13-13, 50-13-14, and 50-13-15, relating to proceedings in a contested110 case under the Georgia Administrative Procedure Act, shall not apply to the hearing111 before the mediation board;112 (3) The mediators shall decide each issue presented to the mediation board by a majority113 vote of the mediators;114 (4) The mediators shall issue a final decision in writing with regard to each dispute that115 is submitted to the mediation board for resolution and shall se rve a copy of the final116 decision on each party involved in the dispute; and117 (5) All final decisions of the mediation board shall be subject to de novo review in the118 Superior Court of Fulton County by way of a petition for judici al review filed by the119 department or the utility within 30 days after service of the final decision.120 (e) The department shall promulgate reasonable regulations gov erning the mediation121 board, including the procedural rules governing the mediation of a contested case and the122 creation of a list of qualified mediators. The department shal l consult with the Georgia123 H. B. 1342 - 5 - 26 LC 39 4884 Utilities Coordinating Council in the development of these regu lations, and these124 regulations shall be adopted by the department on or before January 1, 2008."125 SECTION 2.126 All laws and parts of laws in conflict with this Act are repealed.127 H. B. 1342 - 6 -