Page 12 - West Virgina 811 Magazine 2020 Issue 3

By Roger Cox
President E ACTS Now, Inc.
ffective enforcement is not a new concept. It is not even a new concept as it relates to
the enforcement of a state’s dig
laws, sometimes referred to as “one- call laws.” The truth is, several years ago U.S. Congress, reacting to national tragedies involving underground gas and pipelines and armed with statistics showing more than 30% of all damages to underground facilities were caused by third parties, made protecting underground lines a high priority, and rightly so.
As a result of this congressional interest, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a directive that stakeholders come together to create a measurable and more effective damage prevention program in each state— one that is based on accountability and preferably at the local state
level. And again, the focus was to protect underground pipeline and gas infrastructure.
The nine elements of effective damage prevention programs were cited by Congress in the Pipeline Inspection, Protection, Enforcement and Safety (PIPES) Act of 2006. Naturally, the activity at the federal level created activity at the state level, in part as the result of Elements 2 and 7. Element 2 is “Fostering support and partnership of all stakeholders.” And of course, Element 7 is “Fair and consistent enforcement of the law.”
Defining “support and partnership of all stakeholders” created some
interesting dialogue. However, getting all stakeholders involved was, and is, smart for all the reasons you already know. Try convincing a water operator that an excavator who damaged a
gas line without a 811 ticket could be fined, but that same excavator who damaged a water main without calling in a 811 ticket could not be fined because, “That’s not my jurisdiction.” Another immediate frustration often encountered is the excavator being held accountable for not properly exposing the underground utility but has no recourse if the utility line isn’t marked in a timely fashion.
Back in the earliest days of such discussions, it didn’t appear to me that any one stakeholder group was opposed to accountability. On the contrary, everyone seemed to understand and endorsed the principle of accountability. In part because all stakeholders were aware of traffic laws and how they worked.
It’s not the fine that causes us to drive within the speed limit; it’s the threat of the fine. If it were not there, most of us would drive much faster. The threat of the fine, speed limit signs, the patrol car on the side of the highway, billboards and other advertisements all worked together to remind us to drive safely.
No highway official wants to fine us, they simply want to slow us down. Effective enforcement is not now, nor has it ever been, about fines. It’s a change in our behavior that is expected and if we slow down, then the law is
working. Fines are for those who refuse to change their poor behavior.
The objective of enforcement on our state’s highways is clearly to keep the public safe.
Enforcement also has a crucial role to play in the criminal and civil justice systems of a modern, democratic society; consequently, there must be ways to enforce the rules.
Imagine if there were no means of collecting property taxes, child support debts or enforcing traffic laws, such as speeding or driving under the influence.
People ordered to pay a court judgment, civil penalties, and compensation awards, or to comply with the terms of a community sentence, will have little or no incentive to do so if they know there is no effective means of enforcing it. Unless there is prompt and effective enforcement, penalties and public confidence in the justice system will be undermined.
The model of effective enforcement
has already been adopted and embraced by our elected officials. It seems only logical and reasonable that stakeholders charged with looking out for the best interests of our citizens, while protecting our underground infrastructure, would find a way to develop a similar standard—one created by consensus that would protect those who do what’s right, educate all involved so that the desired behavior is known and hold accountable those who
10 • West Virginia 811 2020, Issue 3
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