Penalty Schedule

 

Indiana Underground Plant Protection Advisory Committee


Penalty Schedule
for violations of IC 8-1-26


Approved January 2017
Effective January 1, 2017

Purpose of this Document

This is a guidance document to assist the Indiana Underground Plant Protection Advisory Committee (“Committee”) in determining penalties under Indiana code chapter 8-1-26. It provides general principles for determining penalties. However, it is not meant to hinder case-by-case decision-making by the Committee based on specific facts of a case.

 

Guiding Principles for Penalty Schedule

  • The objective of this schedule is to ensure public safety.
  • The focus will be to educate parties and encourage compliance, rather than being punitive.
  • Penalties should be imposed in steps, with each step more severe.
  • Each step should have a set penalty, with the Committee having the ability to consider a variety  of factors that could increase or decrease the penalty. The Committee should have the ability to reduce penalties if the contractor or operator shows a strong commitment to compliance.
  • The applicable step (in the penalty schedule) should be based on a certain timeframe in order to credit the firm for going a certain period without violations.
  • The 12-month period used in the schedule is based on when the violation occurred, not when it was reported or when matter was referred to Committee

Penalty Schedules

Excavators

Non-Homeowners or Non-Tenants

Pursuant to IC 8-1-26-16(g) [notice], IC 8-1-26-16(h) [white lining], and IC 8-1-26-20(b) [two (2) foot clearance], the maximum civil penalty is $10,000.

Initial violations

Warning letter

Second violation

Training once between the time of the second violation date of damage to thirty (30) days after training is complete; failure to complete training as required will result in a civil penalty of $5,000

Third violation

(If after training period) $1,500 civil penalty, with chance to mitigate $1,500 if respondent takes training and completes corrective action plan

Fourth violation

(If after training period) $3,000 civil penalty, considering mitigating and aggravating circumstances

Fifth or more violation

(If after training period) Escalates by $500 civil penalty for every damage that occurs post Sept. 1, 2013 up to $5,000, considering mitigating and aggravating circumstances. Penalties for additional violations will not continue to escalate unless there are aggravating or reckless circumstances in that particular case.

Fourth or more violation (ONE TIME)

Can mitigate penalty by $2,500 by taking Manager Training.  This mitigation can only be used once.

For ANY violation occurring where there is evidence of the following regardless of date of occurrence:

  • Concealment of damage or evidence of self- repair through the use of a leak clamp or other means
  • Recklessness1

Mandatory training and a monetary civil penalty of up to $10,000; failure to complete training as required will result in a civil penalty of $5,000

For a violation occurring where there is  evidence that no dig ticket or locates were requested, and it is the first  or second violation

Mandatory training

For a violation occurring where there is  evidence that no dig ticket or locates were requested, and it is the third or more violation

An additional $1,000 fine will be added to the standard penalty

 

If a violation occurs at least 12 months after the previous violation, the schedule drops back to the third violation level unless there was only one prior violation; if so, the schedule drops back to the second violation. The schedule is structured so that there is a 30-day window of time after training is completed before additional penalties will accrue.The rationale is to give violators time to learn from the training before assessing additional penalties. Abuses of this should be minimal because where there is evidence of recklessness or concealment, there will be escalating $500 fines.

An entity with multiple locations and staff will be considered one entity for purposes of the penalty schedule. Entities will only be treated as separate if they can provide discreet federal ID numbers. Any entity that is currently treated as separate entities will be recombined and will continue at one step above the lowest penalty level the entity currently has or at the fourth violation level, whichever is lower.

 

Factors to consider that might warrant lesser penalties:

  • Overall level of company compliance
  • Safety history (percentage of damages versus number of total excavations per year)
  • Already completed voluntary training
  • Already completed voluntary corrective action plan
  • Other factors the Advisory Committee deems appropriate

 

Factors to consider that might warrant stronger penalties:

  • No dig ticket or locates were requested
  • Failure to report damage to Indiana 811, especially where gas is leaking
  • Failure to report release of gas to Indiana 811 and local police and fire departments having  jurisdiction
  • Concealment of damage through the use of a leak clamp or other means
  • Recklessness2
  • Physical injury
  • Property damage of over $10,000
  • Failure to pay previous civil penalties or take required corrective action
  • Other factors the Advisory Committee deems appropriate

 

Sample Schedule

1/1/12 damage date             Warning letter for first violation

6/1/12 damage date             Training for second violation

Time lapse:

6/1/12                                damage occurs

6/8/12                                damage reported to IURC (about a week after damage)

6/10/12                              letter to excavator requesting information

7/10/12                              staff investigates after 30-day windo for excavator to send information

7/30/12                              Case is ready for review by Advisory Committee

8/23/12                              Case is heard by Advisory Committee

8/25/12                              Letter to excavator giving opportunity for public hearing

10/4/12                              If no request for hearing in 40 days, case is approved by IURC

10/5/12                              Letter to excavator requiring training

10/20/12                            Excavator must schedule training within this 15-day window

11/20/12                            Excavator must take training within this 30-day window

12/20/12                            30-day window for training to sink in and be delivered back to company 

(total time = 202 days or about 7 months)

 

 Homeowners and Tenants

Pursuant to IC 8-1-26-16(g) [notice], IC 8-1-26-16(h) [white lining], and IC 8-1-26-20(b) [two (2) foot clearance], the maximum civil penalty is $10,000.

For all violations occurring prior to January 1, 2012

Warning letter

Initial violations where date of damage is January 1, 2012 or later

Warning letter3

Second and subsequent violation within 12 months of the previous damage date

$100, escalating by $100 for each occurrence, considering mitigating and aggravating circumstances

 

If a violation occurs at least 12 months after the previous violation, the schedule starts over (i.e. that violation is considered an initial violation).

 

Factors to consider that might warrant lesser penalties:

  • Level of culpability
  • Shows good faith effort to comply after notice of violation
  • Amount of damage or threat caused by noncompliance
  • Ability to pay
  • Other factors the Advisory Committee deems appropriate

 

Factors to consider that might warrant stronger penalties:

  • Recklessness
  • Physical injury
  • Property damage of over $10,000
  • Failure to pay previous civil penalties or take required corrective action
  • Other factors the Advisory Committee deems appropriate

 

Operators

Operators Who Fail to Locate or Mislocate

Pursuant to IC 8-1-26-18 (f) [mislocate or failure to locate], the maximum civil penalty is $1,000.

 

Initial violations

Warning letter

Second or more violation (violations occurring January 1, 2012 or later are counted as within 12 months of the date of damage of a previous violation)

Training once between the time of the second violation to thirty (30) days after training is complete; failure to complete training as required will result in a civil penalty of $1,000

Third or more violation

(after training is complete) $1,000 or lower, considering mitigating circumstances

For ANY violations occurring where there is evidence of recklessness, regardless of date of occurrence

Minimum $500 penalty

 

If a violation occurs at least 12 months after the previous violation, the schedule drops back to the second violation level. The schedule is structured so that there is a thirty-day window of time after training is completed before additional penalties will accrue. The rationale is to give violators time to learn from the training before assessing additional penalties. Abuses of this should be minimal because where there is evidence of recklessness or concealment, there will be escalating $500 fines.

 

Factors to consider that might warrant lesser penalties

  • Overall level of company compliance
  • Factors outside the operator’s control or difficult to control, including:
    • Broken tracer wire
    • Blocked access to the property to be located
    • Underground congestion (i.e. other types of underground facilities in vicinity)
    • Weather
    • Change in pipeline material
    • Inserted lines (where plastic gas line is pushed through an old steel line)
    • Depth of facility
    • Gas line has one or more drastic change of direction.
  • Other factors the Advisory Committee deems appropriate

 

Factors to consider that might warrant stronger penalties:

  • Recklessness
  • Physical injury
  • Property damage of over $10,000
  • Failure to pay previous civil penalties or take required corrective action
  • Other factors the Advisory Committee deems appropriate

 

Operators Who Fail to Join the Association

A warning letter shall be sent by the Committee to operators who have been identified as those who are required to but have not yet joined the Association, as required by IC 8-1-26-15. The letter will give the operator a window of approximately ninety (90) days to join the Association.

 

Pursuant to IC 8-1-26-15(d) [failure to join association], the maximum civil penalty is $100 per violation (one violation per day).

 

Failure to join within three (3) months of the due date in the warning letter

$500

Failure to join within six (6) months of the due date in the warning letter

$5,000

Failure to join within nine (9) months of the due date in the warning letter

$10,000

Failure to join within twelve (12) months of the due date in the warning letter

$21,000

Failure to join within fifteen (15) months of the due date in the warning letter, and for each additional three (3) month period

$100 for every add’l day of noncompliance

 

Other

Facility Locate Markings: Removal, Damage, or Alteration

Pursuant to IC 8-1-26-18(h) [altering facility markings], the maximum civil penalty is $10,000.

 

Initial violation

Warning letter4

Second violation within 12 months of the previous damage date

$2,500 civil penalty

Third violation within 12 months of the previous damage date

$5,000 civil penalty

Fourth and subsequent violations within 12 months of the previous damage date

$10,000 civil penalty

If a violation occurs at least 12 months after the previous violation, the matrix starts over (i.e. that violation is considered an initial violation).

 

False Emergency Reporting

Pursuant to IC 8-1-26-19(c) [false emergency], the maximum civil penalty is $1,000.

Initial violations

$500 civil penalty 5

Second and subsequent violations  within 12 months of the previous damage date

$1,000 civil penalty

Factors to consider that might warrant lesser penalties

  • Other factors the Advisory Committee deems appropriate

 

Training

For Excavators

Standard training - Trained employees must include at least one attendee that is a member of management or have a supervisory role; other employees may include safety officers, excavators, or those responsible for calling in locates, scheduling work, managing the operations, or actual excavation. At least three (3) employees must be trained, unless the company has less than three (3) total employees on staff. In that case, all employees must be trained. Additional employees are encouraged to attend training, but it is not required.  Respondents who utilize agents or outside contractors are encouraged to have a member of  those companies attend training, but it is not required. For violations by homeowners and tenants, only  the violator is required to attend the training.

 

Additional training - If a company has to take training more than once, the training shall include at minimum the employee that caused the damage or their supervisor if the employee is no longer with the company.

 

Manager training –All trainees must be owners, board members, members of management, or have a supervisory role (managers). At least three (3) managers must be trained, unless the company has less than three (3) total managers on staff.  In that case, all managers must be trained.  Additional managers  are encouraged to attend training, but it is not required. Respondents who utilize agents or outside contractors are encouraged to have a manager of those companies attend training, but it is not required.

 

For Operators:

Trained employees must include at least one attendee that is a member of management or have a supervisory role; other employees may include operator qualification personnel, internal person supervising locating, or external personnel (contractors) supervising locating. At least three (3)  employees must be trained, unless the company has less than three (3) total employees on staff. In that case, all employees must be trained. Additional employees are encouraged to attend training, but it is not required.  Respondents who utilize agents or outside contractors are encouraged to have a member of  those companies attend training, but it is not required.

 

Generally

To be “trained” means paying in full prior to the training the participant charge and any charge for a translator if required by the attendee, attending the training, and successfully passing the examination at the end of training through Baker-Peterson, LLC.  Additional vendors may be considered.

 

Training shall be scheduled by the violating company within fifteen (15) days of receipt of their notice from the IURC. Training shall be successfully completed as outlined above within thirty (30) days of  scheduling the course.

 

Corrective Action Plan

A corrective action plan is one that is developed to avoid future violations of IC 8-1-26. The plan should at minimum include the following:

  • A listing of possible violations under IC 8-1-26.
  • For each of the company’s violations, steps that the company will take moving forward to avoid these violations. This should include but is not limited to written procedures, review of existing procedures, and employee discipline and/or training.

Each plan will be assigned to one member of the Committee for review and presentation to the entire Committee for approval. Should be developed and provided to the Committee for approval within 2 months.  The plan should be fully implemented 4 months after that.

 

Long Term Plan

At a minimum, the Committee will consider the following on an annual basis:

  • Should the Committee consider the number or percentage of digs for excavators or locates for operators when applying the penalties (ex. Company A has 10 violations in 2012, and they did 10 digs. Company B has 10 violations in 2012, and they did 1,000 digs. Should they be treated the same?)
  • Are the monetary penalties set at an appropriate level?
  • Generally, do the penalties set out appear appropriate?
  • Is there evidence that this schedule changed behavior in a positive way?