PROPOSED RULEMAKING

PENNSYLVANIA PUBLIC UTILITY COMMISSION

[ 52 PA. CODE CH. 57 ]

[ L-2015-2500632 ]

Electric Safety Regulations

[46 Pa.B. 654]
[Saturday, February 6, 2016]

 The Pennsylvania Public Utility Commission (Commission), on November 19, 2015, adopted a proposed rulemaking order to amend and add electric safety regulations.

Executive Summary

 Section 1501 of the Public Utility Code requires every public utility in Pennsylvania to ''maintain adequate, efficient, safe, and reasonable service and facilities'' and to ''make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public.'' 66 Pa.C.S. § 1501. Pursuant to that authority and Section 501 of the Public Utility Code, 66 Pa.C.S. § 501, the Pennsylvania Public Utility Commission (Commission or PUC) proposes adding safety regulations with respect to the distribution facilities of electric utilities under the Commission's jurisdiction.

 The Commission proposes these regulations to facilitate safety inspections of electric utilities by the PUC's Electric Safety Division. The proposed regulations reference the national electric safety standards in the National Electrical Safety Code and require jurisdictional electric utilities to adhere to the Underground Utility Line Protection Act (PA One Call). The proposal adds regulations to clarify the applicable electric safety standards, record-keeping and reporting rules for electric utilities, and the obligations of utilities in regard to inspections and investigations. The proposed regulations also clarify the duties and responsibilities between the customer and the electric utility regarding maintenance of certain facilities and equipment.

Public Meeting held
November 19, 2015

Commissioners Present: Gladys M. Brown, Chairperson; John F. Coleman, Jr., Vice Chairperson; Pamela A. Witmer; Robert F. Powelson; Andrew G. Place

Rulemaking Re Electric Safety Regulations, 52 Pa. Code Chapter 57; Doc. No. L-2015-2500632

Proposed Rulemaking Order

By the Commission:

 The Pennsylvania Public Utility Commission (Commission) proposes to amend its regulations in Chapter 57, Subchapters A and B of the Pennsylvania Code. See 52 Pa. Code § 57.1 (General Provisions), § 57.11 (Service and Facilities). Pursuant to its authority and duty under the Public Utility Code, 66 Pa.C.S. §§ 501, 1501, the Commission proposes minor revisions and updates to Section 57.1 and proposes adding electric safety standards in Section 57.28. See Annex A, Section 57.1, 57.28. The Commission seeks comments from all interested parties on these proposed regulations, following as Annex A to this Order.

Background

 The Commission first promulgated Section 57.1 (Definitions) in Subchapter A (General Provisions) of its Electric Service regulations in Chapter 57 of the Pennsylvania Code on February 25, 1946. 52 Pa. Code § 57.1. Section 57.1 was amended on May 20, 1978, 8 Pa.B. 1403, and on January 8, 1983, 13 Pa.B. 131.

 On February 19, 2014, the Commission's then-Chairman Robert F. Powelson testified to the Pennsylvania House of Representatives Appropriations Committee that there is an average of 26 serious injuries or fatalities in Pennsylvania each year related to electric utility operations. Therefore, the Commission created the Electric Safety Division within the Commission's Bureau of Investigation & Enforcement to ensure that more PUC staff would be dedicated to enforcing the National Electrical Safety Code and performing field audits and investigations.¹ Presently, the Electric Safety Division is a dedicated unit, consisting of three full-time staff: a supervisor, a field inspector for western Pennsylvania, and a field inspector for eastern Pennsylvania. One attorney/prosecutor also provides part-time enforcement support.

 The Commission's Gas Safety Division within the Bureau of Investigation & Enforcement (I&E) currently enforces gas safety standards and conducts gas safety inspections through the invocation of Section 59.33 (Safety) of the Commission's regulations in Chapter 59 pertaining to Gas Service. See 52 Pa. Code § 59.33. Section 59.33 clearly and straightforwardly lists the minimum gas safety standards by specifically citing to sections of the United States Code and the Code of Federal Regulations. See 52 Pa. Code § 59.33(b). In a similar vein, the Commission believes that the clear outlay of electric safety standards in one section in Chapter 57 of the Commission's regulations will clarify minimum industry standards and will assist the Electric Safety Division in enforcing those standards. Specifically, the Commission desires to reference the national electric safety standards in the National Electrical Safety Code (NESC) in order to remove doubt and minimize legal challenges as to the applicability of the NESC to jurisdictional Pennsylvania electric distribution companies (EDCs). In proposing these electric safety standards, the Commission also seeks to clarify the duties and responsibilities between the customer and the electric utility. See Annex A, Section 57.28(a).

Discussion

Legal context

 Under the Public Utility Code, an electric utility in Pennsylvania has a legal duty to maintain safe, adequate and reasonable service and facilities and to make repairs, changes, and improvements that are necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public. 66 Pa.C.S. § 1501. Pursuant to its statutory powers, the Commission is authorized to adopt and enforce rules to ensure that EDCs provide safe, adequate, and reliable service. 66 Pa.C.S. §§ 102, 501. The Commission must ensure that EDCs adhere to established industry standards and practices, such as the national standards of the NESC, regarding the installation and maintenance of transmission and distribution facilities. 66 Pa.C.S. § 2804(1), § 2807(a); 52 Pa. Code § 57.198(b). Commission staff may initiate an investigation, or may do so upon complaint by an affected party, to determine whether an EDC is providing utility service in accordance with those standards. 52 Pa. Code § 57.194(b), § 57.197(a); see also 52 Pa. Code § 57.12. An electric utility that violates the Public Utility Code or Commission orders or regulations subjects that electric utility to a civil penalty of $1,000 per violation for every day of that violation's continuing offense. 66 Pa.C.S. § 3301(a)—(b).

 The Commission embarks on this rulemaking proceeding in order to add electric safety regulations to clarify the applicable electric safety standards, EDC record keeping and reporting rules, and EDC obligations in regard to inspections and investigations. These regulations will empower the PUC's Electric Safety Division to enforce electric safety standards at jurisdictional electric distribution facilities to ensure public safety and protect the public interest. See 66 Pa.C.S. § 1501. Pursuant to this authority, the Commission's power to promulgate regulations, 66 Pa.C.S. § 501(b), and the Commonwealth Documents Law, 45 P. S. § 1201, the Commission proposes electric safety regulations governing the distribution systems of jurisdictional electric distribution companies in the Commonwealth of Pennsylvania. See Annex A, Section 57.28.

 Below, we propose minor revisions and justifications to existing Section 57.1 followed by the additional electric safety standards in Section 57.28.

Minor Revisions to Existing Section 57.1

Section 57.1 Definitions

 For clarification purposes, we propose adding a definition for EDC—electric distribution company or electric utility. For purposes of consistency and deference, we reference the definition of EDC in the Public Utility Code, which defines an EDC as the ''public utility providing facilities for the jurisdictional transmission and distribution of electricity to retail customers, except building or facility owners/operators that manage the internal distribution system serving such building or facility and that supply electric power and other related electric power services to occupants of the building or facility.'' See 66 Pa.C.S. § 2803. Similarly, EDC is also defined with reference to this definition in the Public Utility Code later in Chapter 57 of our regulations. See 52 Pa. Code § 57.192. We also add the synonymous term electric utility for clarity, as that term is used in common parlance and in the courts and we will use that term in describing the proposed safety standards.

 In this section, we also update and modernize the term and definition for service terminal. Service terminal is currently defined as ''[t]he point at which the service lines of the public utility terminate and the customer's facilities for receiving the service begin.'' 52 Pa. Code § 57.1. Service terminal is still a very important term and concept, as it indicates the separation of duties between the customer and the utility. However, the term service terminal is not used as frequently as service point, the term used in the NESC, and point of delivery, a term used in Pennsylvania and PUC case law² to indicate the jurisdictional separation between the customer and the utility. Therefore, we propose replacing the term service terminal with service point/point of delivery. See Annex A, Section 57.1.

 We also propose a new definition for Service Point/Point of Delivery as ''the location designated by the electric utility where the utility's service supply lines terminate and the customer's facilities for receiving service begin.'' This definition still retains the same basic concept as the existing definition for service terminal, but also recognizes, in alignment with the NESC, that an electric utility designates the location of the service point in its tariff.³ The exact physical location of the service point may differ between utilities and between customers, as the service point is often located on the rooftop of a customer's premises or even underground.⁴

New Electric Safety Standards: Sections 57.28

 As discussed, the Commission believes that the clear outlay of electric safety standards in one section in Chapter 57 of the Commission's regulations will assist the Electric Safety Division in enforcing those standards. Compare 52 Pa. Code § 59.33 (providing gas safety standards). Specifically, the Commission desires to reference the NESC to remove doubt and minimize legal challenges as to the applicability of the NESC to jurisdictional Pennsylvania electric distribution companies. In proposing these electric safety standards, the Commission also seeks to clarify the duties and responsibilities between the customer and the electric utility.

Section 57.28(a) Duties and Responsibilities

 Under Pennsylvania law, maintenance and inspection duties between the electric utility and the customer are generally divided at the service point or the point of delivery of electricity to the customer. Alderwoods v. Duquesne Light Co., 106 A.3d 27, 38 (Pa. 2015); Hineline v. Metro. Edison Co., 1990 Pa. PUC LEXIS 156, at *6 (Pa. P.U.C. 1990). Regarding the maintenance and inspection of an electric utility's transmission and distribution facilities, the Public Utility Code adopts the NESC. 66 Pa.C.S. § 2804(1). The NESC explains that the service point is the point of demarcation between the serving electric utility and premises wiring of the customer.⁵ The service point is also the jurisdictional line of demarcation between two national codes: (1) the NESC and (2) the National Electrical Code (NEC).⁶ Beyond the service point, the customer owns and assumes the responsibility for the maintenance and security of the internal wiring. See Hineline, 1990 Pa. PUC LEXIS 156, at *6 (citing Craft v. Pa. Elec. Co., 50 Pa. P.U.C. 1 (1976); see Norbeck v. Pa. PUC, 2011 Pa. Cmmw. Unpub. LEXIS 601, at *21-22 (Pa. Cmwlth. Ct. 2010) (explaining that the utility tariff did not require the utility to take ownership of customer-owned service lines). Accordingly, the electric utility does not have a freestanding duty to inspect customer-owned electric equipment. Alderwoods, 106 A.3d at 38; see Norris v. Phila. Elec. Co., 5 A.2d 114, 116 (Pa. 1939).

 Under this framework and legal guidance, we propose Section 57.28(a) to clarify and explain the duties and responsibilities between the customer and the electric utility. As is current practice, the duties ''shall be effectively described in the electric utility's tariff that is filed with and approved by the Commission.'' See Annex A, Section 57.28(a). Here, we explain that an electric utility shall use every reasonable effort to properly warn and protect the public from danger and to reduce hazards to the public due to its provision of electric distribution service and its associated equipment and facilities. See Annex A, Section 57.28(a)(1). We also explain that the customer is responsible for the ownership and maintenance of the customer's facilities beyond the service point and delivery of electric supply. See Annex A, Section 57.28(a)(2).

Section 57.28(b) Safety Code

 In this section, the Commission establishes and explains the minimum safety standards to which all jurisdictional EDCs must comply. The electric utilities must adhere to Chapter 57 of the Commission's regulations governing electric service. 52 Pa. Code § 57 et seq.; see Annex A, Section 57.28(b)(1). As discussed, the electric utilities must adhere to the standards established by the National Electrical Safety Code. 66 Pa.C.S. § 2804(1), § 2807(a); see Annex A, Section 57.28(b)(2). We will also require an electric utility to comply with its own internal company procedures. See Annex A, Section 57.28(b)(3).

 Additionally, we will require electric utilities to adhere to the Underground Utility Line Protection Act (PA One Call or Act 287). See 73 P. S. § 176; see Annex A, Section 57.28(b)(4). PA One Call requires underground facility owners, including public utilities, to become members of the One Call System, a Commonwealth-wide communication system that provides a single nationwide toll-free telephone number or 811 number for excavators, designers, or other persons covered by Act 287 to call facility owners and notify them of their intent to perform excavation, demolition, or similar work. 73 P. S. §§ 176—177. See Annex A, Section 57.28(b)(4).

 Finally, we inform EDCs as to their duty to adhere to any and all other all other applicable and governing state and federal laws and regulations. See Annex A, Section 57.28(b)(5).

Section 57.28(c) Enforcement

 On occasion, the Commission's Bureau of Investigation & Enforcement has had difficulty in obtaining certain information from electric utilities. Prior to the creation of the Electric Safety Division, I&E depended on utilities to provide information to assist I&E in carrying out investigations.⁷ Even with the Electric Safety Division established, I&E still needs to be able to readily and easily acquire information from electric utilities. Since there are only two electric safety inspectors in the Commonwealth (one in the east and one in the west), an inspector may not be able to arrive at the scene of an incident while the evidence is still fresh and untouched. The Electric Safety Division has encountered some confusion and hesitance from utilities regarding the provision of information, including raw data, to Commission staff at the investigation site.

 In order to alleviate any confusion on the part of the electric utilities as to what information must be provided to the Commission and to ensure that the Electric Safety Division can effectively carry out its investigation, we propose Section 57.28(c) to require an EDC to make its books, facilities, and records available to staff of I&E and the Electric Safety Division during inspections and investigations. See 52 Pa. Code § 59.33(d) (similar enforcement section for gas safety). This shall include the raw data collected at the time of the initial incident investigation. The raw data is to be provided to the electric safety inspector as it is collected if a safety inspector is on site during the initial investigation. See Annex A, Section 57.28(c). Here, we emphasize that an EDC ''shall provide the Commission or its staff the raw data, reports, supplemental data, and information necessary for the administration and enforcement of this section.'' See Annex A, Section 57.28(c). This section is not meant to include opinions or mental impressions.

Section 57.28(d) Records

 As explained above, the Electric Safety Division has encountered confusion and resistance from utilities regarding the provision of information, including raw data, to Commission staff at the investigation site. By the same reasoning underlying the proposed Section 57.28(c), we propose Section 57.28(d) requiring an electric utility to keep ''adequate records'' as required under the Commission's regulations and the National Electric Safety Code. See 52 Pa. Code § 59.33(e) (similar records section for gas safety). As these records will assist I&E in carrying out its investigations, we emphasize that these records must be ''accessible to the Commission and its staff.'' See Annex A, Section 57.28(d).

 Here, we also note that Section 57.11 of the Commission's regulations requires an electric utility to submit a report of each reportable accident involving the facilities or operations to the Secretary of the Commission. 52 Pa. Code § 57.11(a).

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 27, 2016, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Consumer Affairs Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.

Conclusion

 Through this Proposed Rulemaking Order, the Commission seeks public comment from all interested parties on the proposed amended and expanded regulations governing electric service in Chapter 57 of the Pennsylvania Code. See 52 Pa. Code §§ 57.1, 57.28. Pursuant to its authority and duty under the Public Utility Code, 66 Pa.C.S. §§ 501, 1501, the Commission proposes minor revisions and updates to existing Sections 57.1 and proposes adding new electric safety standards in Section 57.28. Therefore, we formally commence the rulemaking process and seek public comments on these proposed regulations, following as Annex A to this Order.

 Accordingly, pursuant to sections 501 and 1501 of the Public Utility Code (66 Pa.C.S. §§ 501 and 1501); sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732.204(b)); section 5 of the Regulatory Review Act (71 P. S. § 745.5); and section 612 of The Administrative Code of 1929 (71 P. S. § 232) and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231—7.234, we are considering adopting the proposed regulations set forth in Annex A; Therefore,

 It Is Ordered That:

 1. A proposed rulemaking be opened to consider the regulations set forth in Annex A.

 2. The Secretary shall submit this proposed rulemaking order and Annex A to the Office of Attorney General for review as to form and legality and to the Governor's Budget Office for review of fiscal impact.

 3. The Secretary shall submit this proposed rulemaking order and Annex A for review and comments to the Independent Regulatory Review Commission and the Legislative Standing Committees.

 4. The Secretary shall certify this proposed rulemaking order and Annex A and deposit them with the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.

 5. Original written comments referencing Docket Number L-2015-2500632 be submitted within 30 days of publication in the Pennsylvania Bulletin to the Pennsylvania Public Utility Commission, Attn: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265.

 6. A copy of this proposed rulemaking order and Annex A shall be served on the Bureau of Technical Utility Services, the Bureau of Investigation and Enforcement, the Office of Consumer Advocate, the Office of Small Business Advocate, the Energy Association of Pennsylvania, and all affected jurisdictional electric distribution companies.

 7. The contact person for legal matters on this proposed rulemaking is Ken Stark, Assistant Counsel, Law Bureau, (717) 787-5558. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Alyson Zerbe, Regulatory Review Coordinator, Law Bureau, (717) 772-4597.

ROSEMARY CHIAVETTA, 
Secretary

 Fiscal Note: 57-313. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 52. PUBLIC UTILITIES

PART I. PUBLIC UTILITY COMMISSION

Subpart C. FIXED SERVICE UTILITIES

CHAPTER 57. ELECTRIC SERVICE

Subchapter A. GENERAL PROVISIONS

§ 57.1. Definitions.

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

*  *  *  *  *

 Customer's installation—Wiring and equipment on the premises of a customer, and poles, wires or cables and other facilities necessary to bring the terminus of the wiring of a customer to a location where it may be connected to the service line.

 EDC—Electric distribution company or electric utility—An electric distribution company as defined in 66 Pa.C.S. § 2803 (relating to definitions).

 Electric supply line—The wires or cables, with the necessary supporting or containing structures and appurtenances, used in connection with an overhead or underground system of a public utility, providing electric power, located on a public highway or utility right-of-way and used to transmit or distribute electric energy.

*  *  *  *  *

 Service line—The wires or cables and appurtenances which connect the electric supply line of the public utility with the customer's installation and which comply with either of the following:

 (i) If overhead-open-wire or cable-construction, the span, normally 100 feet, extending to a suitable support provided by the customer.

 (ii) If the electric supply line is of underground construction, the underground facilities extending to but not exceeding 18 inches inside the property line of the customer.

 [Service terminal—The point at which the service lines of the public utility terminate and the customer's facilities for receiving the service begin.]

 Service point or point of delivery—The location designated by the EDC where the utility's service supply lines terminate and the customer's facilities for receiving service begin.

 Siting application—An application filed with the Commission by a public utility under § 57.71 (relating to application).

*  *  *  *  *

Subchapter B. SERVICE AND FACILITIES

 (Editor's Note: The following section is new and printed in regular type to enhance readability.)

§ 57.28. Electric safety standards.

 (a) Duties and responsibilities. The separation of duties and responsibilities between an EDC and a customer with respect to the facilities utilized for electric service shall be effectively described in the EDC's tariff that is filed with and approved by the Commission.

 (1) Duty of an EDC. An EDC shall use every reasonable effort to properly warn and protect the public from danger, and shall exercise reasonable care to reduce the hazards to which employees, customers, the general public and others may be subjected to by reason of its provision of electric distribution service and its associated equipment and facilities.

 (2) Customer responsibility.

 (i) A customer is responsible for the ownership and maintenance of the customer's facilities beyond the service point.

 (ii) A customer is responsible for maintaining and inspecting electrical wiring and electrical equipment beyond the point of delivery of electric supply.

 (b) Safety code. A jurisdictional EDC shall comply with all of the following minimum safety standards:

 (1) This chapter.

 (2) The standards established by the National Electrical Safety Code.

 (3) The procedures established by the EDC and set forth in the EDC's internal company procedures.

 (4) The standards established by sections 1—11 of the act of December 10, 1974 (73 P. S. §§ 176—186), known as the Underground Utility Line Protection Act, and Pennsylvania One Call.

 (5) Other applicable and governing State and Federal laws and regulations.

 (c) Enforcement. An EDC is subject to inspections, investigations and enforcement actions as may be necessary to assure compliance with this section. The facilities, books and records of an EDC shall be accessible to the Commission and its staff for the inspections and investigations. An EDC shall provide the Commission or its staff the raw data, reports, supplemental data and information necessary for the administration and enforcement of this section.

 (d) Records. An EDC shall keep adequate records as required for compliance with the safety code in subsection (b). An EDC shall submit reports for each reportable accident under § 57.11 (relating to accidents). The records shall be accessible to the Commission and its staff.

[Pa.B. Doc. No. 16-192. Filed for public inspection February 5, 2016, 9:00 a.m.]

_______

¹  Prepared Testimony of Robert F. Powelson Before the Pennsylvania House of Representatives Appropriations Committee, at 9, available at http://www.puc.pa.gov/general/pdf/testimony/Powelson-House_Budget_021914.pdf.

²  This case law is discussed in the proposed Section 57.13(a).

³  National Electrical Safety Code, at page 15. The Institute of Electrical and Electronics Engineers, Inc. (2012 Edition, Aug. 2011).

⁴  Id.

⁵  NESC, at page 15. The revised 2012 Edition of the NESC clarifies the relative applicability of the NESC versus the NEC. See NESC, at Foreword, p. iii—vi.

⁶  The NEC, which governs electricians and building contractors and not public utilities, provides standards for the safe installation of electrical wiring inside the premises (i.e., the premises wiring system owned by the customer).

⁷  If a civil suit was also pending, then Plaintiffs' counsels often served as sources of information.

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