7.3 Penalties

One Call Center Facility Owner Excavator Locator Project Owner Designer

Practice Statement:

Compliance programs include penalties for violations of the damage prevention laws or regulations.

Practice Description:

Within the context of one call statutes, there exists specific provisions for penalties for failure to comply with the damage prevention laws and regulations. Performance and penalty incentives are equitably administered among stakeholders subject to one call provisions.

A penalty system includes education as an alternative or supplement to civil or other penalties.

Reference:

  • New Hampshire: “Any excavator or operator who does not comply with RSA 374:51-54 shall be required on first offense to go through either a ‘Dig Safe’ training program or be subject to a civil penalty...” New Hampshire Code, RSA 374, § 374:55(VIII)

A penalty system also uses a tiered structure to distinguish violations by the level of severity or repeat offenses (e.g., warning letters, mandatory education, civil penalty amounts). 

References:

  • Arizona: “When a notice of violation (NOV) is issued, the following may be followed: 1. First Time Offenders: A. May be given a warning and Item C below or B. May be fined $250 per violation and C. Given the opportunity to attend a Blue Stake Training Course provided by the Arizona Corporation Commission’s Pipeline Safety Section. Note: The investigator may use the NOV as a warning, if they feel a warning would suffice. 2. Second Offense: A. May be fined $250 per violation and B. Given the opportunity to attend a Blue Stake Training Course provided by the Arizona Corporation Commission Pipeline Safety Section. 3. Repeat Offenders: A. Third Time: May be fined $500 per violation. B. Four or More Times: Could be fined up to $2000 per violation. Flagrancy or magnitude of offense could cause pipeline safety to deviate from this policy. Any deviation to the above-stated policy will jointly be determined by the Chief of Pipeline Safety and the Investigator.” Arizona Corporation Commission policy, “Notice of Violation,” section 1-3
  • New York: “Warning letters: Upon determining that a probable violation(s) of a provision of Part 753 has occurred or is continuing, the Department may issue a warning letter notifying the Respondent of the probable violation and advising him or her to correct it, if it is correctable, and to comply henceforth, or be subject to enforcement actions under this Part.” NY Public Service Commission policy (proposed code § 753-6.3)

A penalty system also establishes mitigating and aggravating factors for determining the penalty for a violation by statute or regulation.

References:

  • Massachusetts: “In determining the amount of the civil penalty, the Department shall consider the nature, circumstances, and gravity of the violation; the degree of the respondent’s culpability; the respondent’s history of prior offenses; and the respondent’s level of cooperation with the requirements of this regulation.” Massachusetts Regulation, 220 C.M.R. § 99.12(2)
  • Minnesota: “In assessing a civil penalty under this part, the office shall consider the following factors: A. the nature, circumstances, and gravity of the violation; B. the degree of the person’s culpability; C. the person’s history of previous offenses; D. the person’s ability to pay; E. good faith on the part of the person in attempting to remedy the cause of the violation; F. the effect of the penalty on the person’s ability to continue business; and G. past reports of damage to an underground facility by a person.” Minnesota Rules, 7560.0800, Subpart 3
  • New Hampshire: “In determining the assessment, the following factors shall be considered: (1) Severity of the consequences resulting from the violation: the more severe the consequences, the higher the civil penalty; (2) Mitigating circumstances: i.e., how quickly actions were taken to rectify the situation, how much control the company had over the situation, and other circumstance which would tend to less fault; and (3) Prior violations of Puc 800.” New Hampshire Regulation, Chapter Puc 800, § Puc 805.06(b)(1)-(3)
  • New York: “...the commission shall determine the amount of the penalty after consideration of the nature, circumstances, and gravity of the violation, history of prior violations, effect on public health, safety or welfare, and such other matters as may be required and shall send a copy of its determination to the excavator, operator, commissioner of labor, and attorney general.” New York Public Service Law, § 119-b(8)
  • Virginia: “In determining the amount of any civil penalty included in a settlement, the nature, circumstances, and gravity of the violation; the degree of the Respondent’s culpability; the Respondent’s history of prior offenses; and such other factors as may be appropriate shall be considered.” Virginia “Rules for Enforcement of the Underground Utility Damage Prevention Act,” § 6

A penalty system does not allow any violator or class of violators to be shielded from the consequences of a violation (i.e., all stakeholders should be accountable).

Reference:

  • New Hampshire: “Any excavator or operator who does not comply with RSA 374:51-54 shall be required on first offense to go through either a ‘Dig Safe’ training program or be subject to a civil penalty...” New Hampshire Code, RSA 374, § 374:55(VIII)