STATE OF VERMONT
PUBLIC SERVICE BOARD
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In re: Investigation into the use by Verizon
New England Inc., d/b/a Verizon Vermont, of
creosote-based preservative on new poles
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Docket No. 6763
STIPULATION
This Stipulation (or “Agreement”) is made and entered into as of the 13th day of June,
2003, by and among the undersigned Parties. In consideration of the mutual promises and
representations contained herein, the Parties agree and stipulate as follows:
1.
Except as specifically set forth in paragraph 3 of this Stipulation, Verizon New
England Inc., d/b/a Verizon Vermont (“Verizon VT”), shall not place creosote-treated poles
(“creosote poles”) in the state of Vermont after the filing of this Stipulation with the Vermont
Public Service Board (the “Board”).
2.
Verizon VT presently intends to set copper naphthenate–treated poles (“CuN
poles”), or at its option pentachlorophenol-treated poles (“penta poles”), throughout its
maintenance areas in Vermont.
3.
Verizon VT may set creosote poles in Vermont only under the following
circumstances:
a.
(I) If neither suitable CuN poles nor suitable penta poles are commercially
available from either Verizon VT’s suppliers or from the electric utility in whose service
territory the pole is to be installed, Central Vermont Public Service Corporation
(“CVPS”), and Green Mountain Power Corporation (“GMP”), or if the pole is to be
installed in the territory of CVPS or GMP, then from CVPS, GMP, and at least one other
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electric utility in the State of Vermont, in quantities necessary to allow completion of a
particular project or projects in a timely manner; or
(II) in the event of emergency or other exigent circumstances that present
a high likelihood of service disruption or injury to persons or property, Verizon VT may
in its discretion utilize any available pole (provided that any creosote pole satisfies the
criteria set forth in paragraph 5 below), on a temporary basis (not to exceed ten days), to
effect repairs or otherwise address the emergency or exigent circumstances.
b.
In either case (I) or (II), Verizon VT shall maintain documentation of each
decision to set a creosote pole under paragraph 3.a, above, detailing the circumstances
that caused Verizon VT to set a creosote pole and the attempts made to find suitable CuN
or penta poles and why those attempts were unsuccessful. Verizon VT will maintain
such documentation for each creosote pole set within a year following the filing of this
Stipulation with the Board and, for each such pole, shall retain such documentation for a
year following installation of the pole. Verizon VT will give notice to the affected
electric utility when it sets a creosote pole as permitted above, including the location of
the pole.
c.
In the event that Verizon VT wishes to resume use of creosote poles other
than under the circumstances described in paragraph 3.a, above, Verizon VT shall notify
the Board and Parties not less than six months in advance of such resumption. In the
event of such determination, a Party may bring a petition before the Board seeking
appropriate relief.
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4.
The following definitions apply to this Stipulation:
a.
“Commercially available” shall mean able to be obtained in the normal
course of commerce, without excessive cost.
b.
“Timely manner” means as requested by customers, required under
contractual provisions, or as may be necessary to comply with applicable contractual or
regulatory deadlines, including but not limited to the requirements of PSB Rule 3.700.
c.
“Parties” means those entities who sign this Stipulation.
d.
“Suspect Pole” means a pole that does not satisfy the criteria of paragraph
5, below. The Parties agree that a Suspect Pole may or may not require remedial action
in accordance with paragraph 12, below.
5.
For purposes of this Stipulation, the Parties agree that a creosote pole should be
black/brown in color and relatively “dry” to the touch, and should not be dripping or bleeding
liquid chemical, but may show evidence of surface moisture during temperature cycling (e.g.,
afternoon/evening to morning, if dry by immediately subsequent afternoon).
6.
During calendar year 2014, Verizon shall conduct a one-time special inspection
for wood rot of a sample consisting of 5% of the CuN poles placed during calendar year 2003.
Such inspection shall include a ground-line inspection and an inspection of the above-ground
portions of the pole. Verizon VT will communicate the results of that inspection to the Vermont
electric utilities by December 31, 2014.
7.
Within thirty days after filing of this stipulation, Verizon VT shall submit to the
Department of Public Service (“DPS” or the “Department”) a plan to identify and inspect all
creosote poles placed since September 1, 2000 that are:
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a.
in or adjacent to schoolyards, playgrounds, public parks or campgrounds,
or state- or municipally-owned recreation areas; and
b.
in other areas commonly used for significant pedestrian traffic (e.g. a
sidewalk in a town or village area).
Verizon VT shall consider, and discuss in good faith with DPS, DPS’ comments on the plan, and
Verizon VT and DPS will work together to reach a mutually agreeable plan within 30 days after
its submission to the DPS.
8.
Within six months after this Stipulation is filed with the Board, Verizon VT shall,
in accordance with the plan described in the immediately preceding paragraph: identify each
creosote pole installed since September 1, 2000 that falls within the categories described in
subparagraphs 7.a and 7.b, above; inspect each such pole; and submit to the Board and Parties
the results of such inspection. For each pole to be inspected, Verizon VT at a minimum shall
determine whether the pole is a Suspect Pole and whether it believes remedial action is
warranted. The report of the inspection results shall identify each pole inspected, the date of
inspection, and rate the degree (none, low, medium, high) of bleeding of the pole and
accumulation of creosote on the ground near the pole, and shall include data describing pole
location. Along with the report of inspection results, Verizon VT shall submit to the Board and
Parties an identification of what remedial action, if any, it deems necessary for Suspect Poles
identified under this paragraph, and a proposed schedule for such remedial action.
9.
After submission of the inspection results described in paragraph 8, above, and
prior to implementation of any remedial action by Verizon VT, the Parties shall have an
opportunity to agree or disagree with Verizon VT’s proposed remedial action or decision to take
no action with respect to a pole inspected under paragraphs 7 and 8, above. In the event of
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disagreement that is not resolved through negotiation, a Party may file a request in this docket
for resolution by the Board.
10.
Where Verizon VT has determined that a Suspect Pole inspected under paragraph
7.a, above, does not require removal, Verizon VT shall use reasonable efforts to consult with the
landowner, concerning this determination, prior to the deadline for submitting inspection results
as set forth in paragraph 8, above. Such inspection results shall state, for each such pole, the
efforts made to contact the landowner, the results of such efforts, and the identity of the
landowner.
11.
With respect to any creosote pole placed since September 1, 2000, in the event
Verizon VT receives a complaint from the Department, or the landowner or other entity having a
controlling interest in the land, or the affected electric utility, concerning such pole, accompanied
by documentation identifying the location of the pole, the condition complained of, and
information concerning the identity of the complainant sufficient to allow Verizon VT to contact
that person:
a.
Verizon VT shall use reasonable efforts to, within two weeks of receiving
a complaint as described above, inspect and assess the pole which is the subject of the
complaint; and
b.
Verizon VT shall use reasonable efforts to, within 30 days of receiving a
complaint as described above, determine the remedial action, if any, it deems appropriate
and, in writing, communicate the results of the inspection and determination to the
complainant and inform the complainant that it may bring before the Board any dispute
regarding Verizon VT’s determination.
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12.
Any determination under this Stipulation of what remedial action, if any, is
appropriate concerning a Suspect Pole shall be based on a balancing of the following factors:
whether the pole is bleeding creosote, the degree of bleeding, fluid creosote accumulation found
on the surface of the pole and on the ground near the pole, location of the pole, likelihood of
transfer (as well as the likely extent of transfer) of creosote to line workers protected in
accordance with applicable occupational safety and health regulations and to members of the
public upon contact with the creosote pole, potential for exposure to creosote from conducting
the remedial action itself, severity and duration of any potential service disruption, and cost. The
Parties intend that poles on which facilities have already been placed or transferred will be
removed and replaced only where such remedy is the most reasonable in light of a balancing of
the above factors. Verizon VT shall take such remedial action as it determines is warranted under
paragraphs 8 and 11 or as may be ordered by the Board, consistent with this Stipulation, in ruling
on a dispute arising under this Stipulation.
13.
Separate and apart from its other obligations under this Stipulation, Verizon VT
will replace all non-transferred creosote poles in Verizon VT maintenance areas in the service
territories of Orleans, Barton, Swanton, Hardwick, Green Mountain Power, Vermont Marble
Power Division of Omya, Inc., the City of Burlington Electric Department, and Central Vermont
Public Service with non-creosote poles.
Initial site inspection and a plan for the replacement
shall be completed within 30 days of the filing of this Stipulation and replacement shall be
completed a reasonable time, not to exceed 60 days of the filing this Stipulation. Verizon VT
will replace these poles as part of this settlement without making a determination as to the
condition of the poles, and this replacement activity shall not be deemed to imply that any of said
poles are Suspect Poles.
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14.
Verizon Vermont, CVPS, and GMP have agreed that they will provide, either
jointly or solely, and not less than annually, a written communication sent to each customer
concerning chemically-treated utility poles. This communication may be provided in or with
customer bills. The communication will, at a minimum, inform customers that wooden utility
poles are chemically treated to enhance their longevity, that physical contact with such poles
should be avoided, and what specific measures should be taken in the event of physical contact.
The communication may also provide information concerning other risks associated with utility
poles. This additional information may include warnings about climbing utility poles, affixing
signs or other items to utility poles, or coming into contact with other utility facilities such as
downed wires. The first communication under this paragraph shall be provided to customers no
later than 120 days after Board approval of this Stipulation. A bill insert sent to customers
during the pendency of this docket shall be deemed to satisfy the “first communication”
requirements of the immediately preceding sentence, as long as such insert meets the minimum
requirements of this paragraph.
15.
The Parties recommend that the Hearing Officer stay the litigation schedule
immediately upon filing of this Stipulation, and recommend that the Board expeditiously (within
45 days after filing) issue an order staying this proceeding for a period of one year and 31 days
after the filing of this Stipulation with the Board. The Parties further recommend that the Board
close this Docket without further proceedings or findings one year and 31 days after the filing of
this stipulation unless a Party has raised a dispute in this docket under paragraph 9, above, or the
Board has granted a request to reopen the proceeding in accordance with the provisions of the
next paragraph and the results of the reopened proceeding compel or reasonably require a delay
in closure of the Docket.
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16.
During the one-year period after the filing of this Stipulation with the Board, if
any dispute arises among the Parties concerning the manner in which the terms of this
Stipulation are being carried out by another Party, such Party may give written notice to the other
Parties specifically stating its concerns and the facts that give rise to such concerns. All Parties
with an interest in or otherwise involved in the dispute then shall engage in informal negotiations
for a period of 30 days in a good-faith effort to resolve such dispute. If the matter is not resolved
at the end of such 30 day period, any Party to such negotiations may petition the Board to reopen
these proceedings in order to resolve the dispute. Notwithstanding the immediately preceding
two sentences, in the event the dispute pertains to an emergency situation, the Parties with an
interest in or otherwise involved in the dispute shall begin informal negotiations immediately in
an attempt to resolve matters as soon as possible, but such a Party need not wait 30 days to
request the Board to reopen these proceedings to resolve the dispute. The mere existence of a
good faith dispute under this Stipulation shall not be grounds for assessment of penalties.
17.
Notwithstanding anything to the contrary in this Agreement:
a.
nothing herein shall be deemed to restrict Verizon VT from evaluating
non-wood poles, wood poles with chemical treatments other than creosote, or new and
improved utility pole products at any time, and this Agreement shall not be construed as
a commitment by Verizon VT to use CuN poles in Vermont indefinitely or exclusively;
and
b.
in the event that Verizon VT elects to deploy within the next three years
after filing this Stipulation:
i.
non-wood poles,
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ii.
wood poles with chemical treatments other than creosote or CuN,
iii.
other new and improved utility pole products in Vermont,
or
nothing in this Stipulation shall be deemed to preclude such deployment, provided that in the
event the pole is of a type that has not already been deployed by Verizon VT in Vermont prior to
the date of this Stipulation, Verizon VT shall provide the affected electric utility(ies) with no less
than thirty (30) days notice prior to the initial deployment and, without prejudice to Verizon
VT’s rights to proceed to deploy such poles, shall discuss with the affected electric utility or
utilities any issues relating to health and safety, environmental, and operational impacts, of the
proposed deployment.
18.
The obligations of the Parties under this Stipulation shall be in full settlement of
any and all claims for injunctive relief or civil penalties pursuant to 30 V.S.A. § 30 that have
been or could have been brought before the Board through the date this Stipulation is filed with
the Board, arising from or relating to Verizon VT’s placement or use of creosote poles in
Vermont. The foregoing shall not preclude the Board from issuing appropriate orders to enforce
the Parties’ obligations under this Stipulation or to resolve disputes arising under this Stipulation.
19.
This Stipulation is the result of negotiations among the Parties with respect to
contested matters to be considered in this docket, and reflects the Parties’ agreement that
resolution of the issues in this proceeding as set forth in this Stipulation is in the best interests of
the public and the Parties. The terms of this Stipulation are offered for settlement purposes only,
and do not constitute an admission of fact, fault, or liability on the part of any person or Party.
This Stipulation may not be introduced as evidence in this or any other proceeding except for its
existence or for the purpose of approving, interpreting, or enforcing the Stipulation. Except to
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enforce the terms of this Stipulation, this Stipulation and any Board order approving this
Stipulation shall have no binding, preclusive, or precedential effect in any other proceeding in
this or in any other jurisdiction.
20.
The Parties agree that should the Board fail to approve this Stipulation in its
entirety, and stay the proceedings as recommended above in paragraph 15, above, this
Stipulation shall terminate, without prejudice to any rights of the Parties. Nothing in this
paragraph is intended to prevent the Parties from entering another stipulation or settlement in the
event that the Board does not approve this Stipulation and stay the proceeding as set forth above.
21.
All disputes arising under this Stipulation shall be resolved by the Board, with all
Parties preserving any available rights of appeal with respect to such resolution. Such disputes
shall include, without limitation, any dispute under paragraphs 8, 9 and 11 concerning the
appropriate action to take, if any, regarding a creosote pole. A person or entity shall not be
precluded from raising such dispute merely because he, she, or it is not a Party to this
Stipulation.
22.
The Parties shall have an opportunity to comment in a timely manner on all filings
with the Board made pursuant to this Stipulation.
IN WITNESS HEREOF, each of the undersigned Parties executes this Stipulation
through its duly authorized representative.