Chapter 7
7.5 Enforcement
A: Authority
Practice Statement:
An authority is specified through state statutes and given the resources to enforce the law.
Practice Description:
The enforcement authority in each state has the resources to enforce the laws and regulations. Experience has demonstrated that enforcement of the one call laws and regulations that did not identify a specific authority other than the attorney general has not been effective.
Characteristics of such an authority include the following:
- A process for receiving reports of violations from any stakeholder
- An operating budget source other than fine revenue, such as a line item in the state budget, excluding fines as a source of income for the authority
- Stakeholder involvement in periodic review and modification of enforcement processes
- Resources to respond to notifications of alleged violations in a timely manner
- A method of investigating alleged violations prior to issuing a notice of probable violation
- Impartial authority adjudicating violations
- An initial informal means of contesting a notice of violation
- A published violation review process and violation assessment considerations
References:
- Arizona: The Pipeline Safety Division of the Arizona Corporation Commission is funded by the Commission budget. “Any penalties received by the state shall be deposited in the general fund.” Arizona Code, Article 6.3, § 40-360.28
- Massachusetts: “... Any other person may report a suspected violation of M.G.L. c. 82 s. 40 to the Department. All such reports shall be in a form deemed appropriate and necessary by the Department.” Massachusetts Regulation, 220 C.M.R. §99.01(1)
- Massachusetts: The Massachusetts Department of Telecommunications and Energy investigates all complaints received from excavators and facility owners/operators and conducts random field investigations. The Department then issues a Notice of Probable Violation if, based on the investigation, it has reason to believe that a violation has occurred or is occurring. “The Department may begin a proceeding by issuing a notice of probable violation (“NOPV”) if the Department has reason to believe that a violation of the M.G.L. c. 82, § 40, has occurred or is occurring...The NOPV shall state the factual basis for the allegation of a violation...” Massachusetts Regulation, 220 C.M.R. § 99.07(1)
- Minnesota: “The office shall issue a notice of probable violation when the office has good cause to believe a violation of Minnesota Statutes, sections 216D.01 to 216.D.09 of this chapter has occurred...A notice of violation must include: A. a statement of the statute or rule allegedly violated by the person and a description of the evidence on which the allegation is based.” Minnesota Rules, 7560.04000, Subp.1 - Subp. 2(A)
- Minnesota: See also Minnesota Rules, 7560.0400, Subp. 1, Notice of Violation; 7560.0500 Response Options; 7560.0600, Director Review; 7560.0800 Civil Penalties; Subp. 3, Assessment considerations
- New Hampshire: “Upon receipt of the NOPV [Notice of Probable Violation] the respondent shall either: (1) Submit in writing, within 30 days, evidence refuting the probable violation referenced in the NOPV; or (2) Request in writing within 30 days, an informal conference with commission staff to examine the basis of the violation, at which time the respondent may be represented by an attorney or other person; or (3) Waive procedural schedule by signing a consent agreement.” New Hampshire Regulation, Chapter Puc 800, § Puc 805.02
- New Hampshire: See also New Hampshire regulations, Chapter Puc 800, sections Puc 805.01, “Notice of Probable Violation”; Puc 805.02, Alternative Responses to Notice of Probable Violation; Puc 805.03, Notice of Violation; Puc 805.04, Response to Notice of Violation; Puc 805.05 Commission Action; Puc 805.06, Civil Penalties.
- Virginia: The Advisory Committee, which is established by statute to include “representatives of the following entities: Commission staff, utility operator, notification center, excavator, municipality, Virginia Department of Transportation, Board of Contractors, and underground line locator,” meets one day annually (in addition the monthly hearings) for “issue day,” a day to discuss issues and make recommendations to the State Corporation Commission (SCC) administrative three-judge panel on issues related to damage prevention. Subteams of the Advisory Committee are also formed to develop recommendations. “The purpose of the Committee is to…make recommendations with regard to Public Education and Awareness Programs that further public safety by the reduction of damage to the underground utility facilities in the Commonwealth and to monitor, analyze, influence, propose, support, or oppose programs or regulations that directly affect damage to underground facilities serving the citizens of the Commonwealth.” Bylaws of the Advisory Committee, Article II
- Virginia: “Upon receipt of a report of a probable violation, the Commission staff (“Staff”) shall conduct an investigation to examine all the relevant facts regarding the reported probable violation. The investigation may include, among other things, records verification, informal meetings, teleconferences, and photo-documentation. Upon completion of the investigation, the Staff shall review its findings and recommendations with the Advisory Committee established in accordance with 56-265.31 of the Act.” Virginia “Rules for Enforcement of the Underground Damage Prevention Act,” § 3
B: Structured Review Process
Practices Statement:
A structured review process is used to impartially adjudicate alleged violations.
Practice Description:
Two types of review processes currently used are outlined below. These type of processes differ in terms of 1) who receives reports of alleged violations, 2) who investigates the reports, 3) possible outcomes of the investigation, 4) who conducts first tier (informal) hearings, 5) possible outcomes of first tier hearings, and 6) appeal rights following a second tier (formal) hearing. It is important that review processes are constructed to avoid abuses of authority and prevent any individual, industry, stakeholder, or agency from exercising undue power or influence over the process.
Type 1:
Traditional Enforcement Authority—This system is currently used in Arizona, Connecticut, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, and Pennsylvania. Reports of alleged violations are sent to the State Agency. A state investigator investigates the reports. If the investigator decides not to issue a NOPV (Notice of Probable Violation), the matter is concluded. If not, the NOPV is issued, and the investigator conducts an informal hearing or review. If the investigator determines that no violation was committed, the matter is concluded. If the investigator determines that a violation was committed, the NOV (Notice of Violation) is issued. If the alleged violator does not contest the NOV, the alleged violation is bound by the facts, findings, orders, and penalties set forth in the NOV. If the alleged violator so requests, the State Agency conducts a formal hearing. The alleged violator may appeal the decision reached in the formal hearing to the state court system.
Type 2:
Advisory Committee (made up of stakeholders) partnered with State Agency—This system is currently used in Virginia. Reports of alleged violations are sent to the State Enforcement Agency. The State Agency investigates the alleged violations and reports to an advisory committee. The Committee is made up of stakeholders representing the following statutorily mandated fields: excavators, facility owners/operators, notification centers, contract locators, local governments, State Department of Transportation, the Board of Contractors, and the State Enforcement Agency. If the advisory committee decides not to issue a NOPV (Notice of Probable Violation), the matter is concluded, possibly with a “letter of concern” containing one call information. If the advisory committee decides to issue an NOPV, it is issued by the State Agency. If the alleged violator does not request a hearing, the alleged violator is bound by the enforcement action set forth in the NOPV. If the alleged violator so requests, an informal hearing is held by the advisory committee. If the advisory committee decides that no violation was committed, the matter is concluded, subject to the right of the State Agency to contest that decision in an administrative proceeding conducted by the agency. If not, the NOV is issued. If the alleged violator then settles the matter with the advisory committee, the settlement is subject to approval by the State Agency in an administrative proceeding. If there is no settlement, the State Agency conducts a formal administrative hearing. The alleged violator may appeal the decision reached in the formal hearing to the state court system.