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MDPC Update, Volume III, Issue IV

Since its inception, the MDPC has reached out to all stakeholders in the state to help make Mississippi a safer place to live and work. Achieving such a goal involved change. Changes in legislation would be easier at times than the changing of attitudes and perspectives necessary to achieve their goal, or to comply with federal legislation enacted in December 2006 and identified as the PIPES act.

The “Nine elements” of a stronger and more effective damage program as outlined in the legislation includes specific language as to creating “effective enforcement” and at the state level. The “effective enforcement” element and language is listed below:

“Enforcement of State damage prevention laws and regulations for all aspects of the damage prevention process, including public education, and the use of civil penalties for violations assessable by the appropriate State authority.”

The evaluation of a state’s damage prevention program could begin with a test of whether the state is presented through law as the statutory authority for review and resolution of related issues. Further, the stakeholders looking to improve the state’s damage prevention program could consider whether the state authority is enforcing the laws in a manner that is considered effective, addresses all aspects of the damage prevention program, and includes the assessment of civil penalties, as appropriate, for violations.

Some characteristics of good enforcement programs are noted in the CGA Best Practices and include:

Enforcement is applied consistently.

Enforcement is seen as fair and equable to all stakeholders.

The enforcement process is accountable to assure its credibility.

The enforcement program is transparent to all stakeholders.

Application of appropriate enforcement is based on the severity of the violations, the significance of events, past behavior of the at-fault parties, and their willingness to change behavior.

The use of remediation measures such as training, helping with public education, use of technology, funding R&D, etc. is considered in lieu of or to reduce fines.
Incentives are used to encourage compliance, such as the use of performance credits and education credits.

The legislative committee of the MDPC met over a period of several months to address this particular issue. Their charge was to put together a draft proposal that would incorporate the essence of the “effective enforcement” element, but in language that would be in the best interest of all stakeholders in Mississippi. It was recognized early on that arriving at consensus on such a volatile issue would be difficult, and for many reasons.

Most all associations involved in the process agreed that blatant disregard for the “dig law” was unacceptable. Most agreed that violations of the law needed to be addressed, and that education would be the first line of defense.

As expected, a major hurdle to overcome is the imposition of civil penalties or fines for continued violators of the state’s law. Most would agree that we need to be held accountable for our poor decisions, but that including the term “fines” would make it more difficult to pass, if not impossible.

As in any worthwhile project, there were three positions held in the process.

1. Good people wanting to work together and for including fines in the current language.
2. Good people wanting to work together and for excluding fines in the current language.
3. Good people wanting to work together and waiting to see what would happen.

As the deadline approaches for submitting the draft proposal, the committee has to make a difficult decision. The decision is not about which group is right. The decision is not about whether to include or exclude fines. The decision is simply how can we achieve consensus while crafting this critical piece of legislation that will help keep Mississippi a safer place to live and work. We need the legislation, and we need to submit legislation that we all can support.

It will involve keeping all stakeholders at the table and interested in working together for the common good of all Mississippi. It will require more listening than talking. It will be necessary to identify what the real obstacles are rather than what the perceived obstacles are.

And as the committee continues to work together in the upcoming weeks, progress will be made toward the development of this critical piece of legislation. It is far too important to give up, or just agree to disagree, or to let some federal representative decide how best to handle the violation.

Sure there are other issues to consider. Who will issue the citation? When civil penalties become part of the legislation, how much and who has jurisdiction? Who will develop the approved training in lieu of fines? And perhaps you have a question of your own that will help the committee put together a better piece of legislation.

Let us hear from you. There will be sessions at the upcoming Summit designed to keep you aware of the progress made to date. We hope to see you there.