Chapter 7
7.2 Incentives
Practice Statement:
Damage prevention programs include incentives to promote compliance with laws and regulations.
Practice Description:
Incentives can include, but are not limited to, ease of access to 811 center, membership and participation considerations, representation on 811 boards, reasonable enforcement of regulations, safety and liability protection, access to alternative dispute resolution (ADR), and public education.
Incentive—Membership:
Membership facilitates communication between an excavator and facility owner/operator, which helps prevent damage to underground facilities.
References:
- Arizona: “If the owner or operator fails to locate or incorrectly locates the underground facility, pursuant to this article, the owner or operator becomes liable for resulting damages, costs, and expenses to the injured party.” Arizona Code, Article 6.3, § 40-360.27(C)
- Minnesota: “Reimbursement is not required if the damage to the underground facility was caused by the sole negligence of the operator or the operator failed to comply with section 216.04, subdivision 3.” Minnesota Code, Chapter 216D.06, Subd. 2(b)
- Pennsylvania: Stakeholders who do not join the 811 system in violation of state law are not permitted to recover damages for injury to their property: “If a facility owner fails to become a member of a One Call System in violation of this act and a line or lines of such nonmember facility owner are damaged by a contractor by reason of the contractor’s failure to notify the facility owner because the facility was not a member of a One Call System serving the location where the damage occurred, such facility owner shall have no right of recovery from the contractor of any costs associated with the damage to its lines. The right herein granted shall not be in limitation of any other rights of the contractor.” Pennsylvania Code, 73 P.S. § 176 et. seq., Section 2(9)
Incentive—Membership Accommodations:
To avoid cost being a barrier to membership, several states have made membership accommodations for smaller municipals and authorities.
References:
- Arizona: “Each one call notification center shall establish a limited basis participation membership option, which may be made available to all members, but which must be made available for any member serving less than one thousand customers or any member irrigation or electrical district. A facility owner who elects limited basis participation membership will provide to the one call center the location of its underground facilities by identifying the incorporated cities and towns, or for unincorporated county areas, by identifying the townships, in which it has facilities. The service level provided to the limited basis participation members by the one call notification center is limited to providing excavators with names and telephone numbers the excavator should contact to obtain facilities location. Each one call center shall establish fair and reasonable fees for limited basis participation members, based on customer count, areas occupied or miles of underground facilities.” Arizona Code, Article 6.3, § 40-360.32. Note, Arizona’s system somewhat defeats the purpose of “one call,” but is successful because the Arizona 811 goes the extra mile to assist the excavator in contacting the small facility owners, many of which do not have a manned telephone line.
- Minnesota: The Gopher State One Call Center instituted a no-locate-required policy, which credits the facility operator those charges for “not-involved” tickets. It results in cost savings to the facility owners/operators because 811 center membership rates are based on the number of tickets received by the facility owners/operators.
- New York: “3. Costs. The costs of operating the system shall be apportioned equitably among the members of the system, with the exception of municipalities and authorities that operate underground facilities and any operator of underground facilities that provides water service to less than four thousand customers. In apportioning such costs, the system shall take into account the number of customers, extent of underground facilities, and frequency of use.” New York General Business Law Article 36, § 761
- Pennsylvania: “Operation costs for the One Call System shall be shared, in an equitable manner for services received, by facility owner members as determined by a One Call System’s board of directors. Political subdivisions with a population of less than two thousand persons or municipal authorities having an aggregate population in the area served by the municipal authority of less than five thousand persons shall be exempt from payment of any service fee.” Pennsylvania Code, 73 P.S. § 176 et. seq., Section 2(8)
Incentive—811 Center Board of Directors:
Boards are composed of representatives of all stakeholders. Representation of all stake holders in the governance of the 811 center (although not necessarily in the administration of the 811 center) ensures that the viewpoint of all stakeholders will be considered in the policies and programs of the 811 center.
References:
- Minnesota: “The nonprofit corporation must be governed by a board of directors of up to 20 members, one of whom is the director of the office of pipeline safety. The other board members must represent and be elected by operators, excavators, and other persons eligible to participate in the center...” Minnesota Code, Chapter 216D.03, Subd. 2(a)
- Pennsylvania: “A one call system shall be governed by a board of directors, to be chosen by the facility owners. No less than twenty percent of the seats shall be held by municipalities or municipal authorities. The board shall include the following: (1) The Chairman of the Pennsylvania Public Utility Commission or his designee. (2) The Director of the Pennsylvania Emergency Management Agency or his designee. (3) The Secretary of Labor and Industry or his designee. (4) The Secretary of Transportation or his designee. (5) A contractor or industry representative. (6) A designer or industry representative.” Pennsylvania Code, 73 P.S. § 176 et. seq., Section 7.1(b)
Incentive—Safety and Liability Protection:
Compliance with 811 center requirements promotes worker safety and public safety and reduces exposure to liability.
References:
- New York: “The penalties provided for by this article shall not apply to an excavator who damages an underground facility due to the failure of the operator to comply with any of the provisions of this article nor shall in such instance the excavator be liable for repairs as prescribed in subdivision four of this section.” New York Code, 16 NYCRR Part 753, § 765(b).
- Pennsylvania: “The designer who has complied with the terms of this act and who was not otherwise negligent shall not be subject to liability or incur any obligation to facility owners, operators, owners, or other persons who sustain injury to person or property as a result of the excavation or demolition planning work of the designer.” Pennsylvania Code, 73 P.S. § 176 et. seq., Section 3(7).
Incentive—Reasonable Enforcement of Regulations:
Reasonable enforcement of regulations refers to actions by enforcement authority officials and enforcement processes, both of which aim to fairly arrive at rational outcomes, such as education and penalties that correspond to the gravity of the violation, without imposing unnecessarily high transaction costs on any participant, including the enforcement authority.
Reference:
- In Massachusetts, a state where a violator’s “history” is considered when addressing a violation, repeat offenders of the one call law can attain first-time offender status if they demonstrate compliance for a solid year. “Any person, contractor, excavator, or company found by the Department to have violated any provision of the Dig Safe law or regulation adopted by the Department thereunder shall be subject to a civil penalty not to exceed $500 for the first offense and not less than $1,000 nor more than $5,000 for any subsequent offense within a 12 month period after the Department issues a remedial order or executes a consent order for the first offense. Any excavator whose subsequent violation occurs after 12 consecutive months of no violations shall be subject to a civil penalty of $500.” Massachusetts Regulation, 220 C.M.R. § 99.12(1)