Utah Admin. Code R930-6-11 - Progressive Corrective Action Process for Permit-Related Violations, Notification Protocols, Mitigation Plan Requirements, Related Fees, Informal Administrative Appeal Hearings, and Matters Related Thereto

(1) This section prescribes the progressive process within which the Department may set about remedying identified safety hazards, or other permit-related violations, arising out of permits issued under the Statewide Utility & Encroachment Permitting Program. It also details the informal administrative appeals process relating to this rule and other matters germane to this section including Conditional Access Permit and Variance appeals. The corrective action process shall be applied as necessary as determined by the Department. All persons, firms, and corporations legally authorized to work within the State right-of-way must exercise a level of care and compliance that continuously reflects a responsible attitude towards complying with all permit requirements and applicable rules and statutes.

(a) Verbal Warning: A verbal warning may be given to correct a minor safety, or other permit-related violation if the violation is:

(i) immediately correctable and;

(ii) not a repeat, or recurring violation, previously encountered with the same permittee or entity working in the right-of-way.

(b) Written Notice of Violation: A written Notice of Violation shall be given anytime an identified violation:

(i) is a repeat minor safety issue; or

(ii) was subject to a previous verbal warning for the same minor violation by the same permittee or entity performing work within the right-of-way

(c) Stop Work Order:

(i) An immediate Stop Work Order shall be issued when an identified permit or law violation results in, or contributes towards, an onsite injury or vehicle accident; or if, solely in the Department's determination, allowing the activity to continue without additional project planning and review may result in unacceptable mobility delays, or if there is belief that allowing the activity to continue creates an unacceptable safety risk due to either known, or unknown factors.

(ii) An immediate Stop Work Order may be issued any time after two (2) or more Notices of Violation have been issued to the same permittee, contractor, or subcontractor for the same or similar violation within any twelve (12) month period; or anytime unauthorized (unpermitted) work is being conducted within the State right-of-way.

(iii) Any person who commits an act prohibited by Utah Code section 72-7-102(2) after the Department has issued a Stop Work Order under this subsection R930-6-11(1)(c) is subject to prosecution for a class B misdemeanor pursuant to Utah Code section 72-7-102(7).

(iv) The Department may install physical barriers to prevent unauthorized work within the State right-of-way or take any other action that is deemed necessary to stop unauthorized use. Any costs relating to enforcement activities and any cost required to restore the State right-of-way to the before condition shall be paid by the person, firm, or corporation responsible for the unlawful use of the State right-of-way. This includes, but is not limited to, any person, firm, or corporation that hires a contractor or subcontractor to perform the work as well as the individual(s) or entity conducting the work.

(d) Permit Revocations, Suspensions, and Debarment: The Department may revoke already issued permits, suspend issuance of future permits, and seek debarment for cause when the permittee or other party has:

(i) demonstrated recurring permit-related violations;

(ii) failed to voluntarily and timely correct an identified permit-related violation;

(iii) commenced work activity within the State right-of-way without first acquiring a required permit;

(iv) failed or refused to comply with a Stop Work Order;

(v) failed to render timely payment for any authorized, or incurred, permit-related fees.

(vi) Such revocations, suspensions, or debarment may be time-limited for a period up to three years.

(2) UDOT permit violation notification protocols.

(a) The Department may notify any interested third-party utility owners relating to contracted permit work, including utility owners when permitted work is authorized under a Statewide Utility License Agreement, anytime a contractor or subcontractor receives a Notice of Violation or is subject to additional corrective action(s) beyond the Notice of Violation stage of the corrective action process.

(i) Such notifications may be made in writing (email) or;

(ii) Through a direct meeting with any combination of interested parties.

(b) All corrective action processes exercised by the Department, beyond the Verbal Warning stage, shall consist of a written notice being issued in the field at the time the violation is first identified.

(i) A copy of said notification shall also be mailed or emailed to the permittee identified on the corresponding permit record (if available) and;

(ii) If an identifiable permittee, contractor, or subcontractor is not available at the worksite location when a permit violation is identified, the Department shall post a copy of said notification in a conspicuous place at the worksite and record photographs of the posting.

(3) Mitigation plan and reinstatement requirements. Any person, firm, or corporation that has been subject to a Stop Work shall submit a comprehensive written mitigation plan before the Department may consider restoring any privileges to work within the State's right-of-way.

(a) Timing. Any person, firm, or corporation wishing to submit a written mitigation plan must do so within one calendar week from the date the Stop Work Order was issued.

(b) Mitigation plan contents. The mitigation plan shall contain:

(i) a clear summary of all corrective action steps being taken to prevent, eliminate, or minimize the identified violation(s) from recurring;

(ii) a statement regarding how each corrective action step will be implemented;

(iii) a clear timeline indicating when each corrective action step will be completed; and

(iv) any other information that may aid the Department in making an informed decision on behalf of the affected party.

(c) Department review of mitigation plan. The Department shall review any submitted mitigation plan and render a determination as to whether or not the proposed remedies are sufficient to warrant consideration for the affected party to lawfully re-enter the State right-of-way on a limited, full-scale, or other basis. The Department may accept the plan as written, accept the plan with modifications, or reject the plan altogether.

(d) Required reinstatement and violation fees. Where the Department has determined a mitigation plan is acceptable, before any new permits are issued and before any work is continued on any previously issued permits, the affected party must render any appropriate reinstatement fee and/or violation fee as listed within the Department's authorized fee schedule.

(4) Informal Administrative Appeal Options for all permit or variance Denials, Revocations, Suspensions, or Debarments.

(a) The permittee, contractor, subcontractor, or other identified interested party, affected by a permit or variance Denial, Revocation, Suspension, or Debarment may file a timely informal appeal using the Department's online appeal form.

(i) Instructions on the informal appeal process will be made available with all permit or variance Denials, Revocations, Suspensions, or Debarments.

(ii) Any appeal of Department action must comply with, R907-1, and Utah Code Title 63G Chapter 4, Administrative Procedures Act including receipt of appeal within 30 calendar days of the Department's action.

(b) Designation of Presiding Officer. Per Utah Code Section 63G-4-103(1)(h)(i), the assigned Statewide Program Administrator is the Department's Presiding Officer for purposes of signing any Notices of Agency Action that leads to any Revocations, Suspensions, or Debarments under this section.

(c) UDOT Hearing Officer assignment determination.

(i) Single Region Appeal: For corrective actions, or denials, affecting permits in a single UDOT Region, the appropriate Region Director shall act as the Department's Hearing Officer.

(ii) Multi-Region Appeal: For corrective actions, or denials, affecting permits in multiple UDOT Regions, the Executive Director's designee shall act as the Department's Hearing Officer.

(d) Legal representation for UDOT Hearing Officers.

(e) All Department hearing officers shall be assisted by a designated State of Utah Assistant Attorney General during the hearing and drafting of the final order.

Notes

Utah Admin. Code R930-6-11

Amended by Utah State Bulletin Number 2019-12, effective 5/22/2019