| (D) If the executive director determines that the alleged
violation was not remedied or was not accidental or inadvertent, the
executive director will make a determination as to what further proceedings
are necessary.
(E) If the executive director determines that the alleged
violation is a continuing violation, the executive director will institute
further proceedings, including referral of the matter for hearing
under subsection (i) of this section.
(2) Payment of administrative penalty, disgorged excess
revenue, or both. Within 20 days after the date the person receives
the notice set out in subsection (f)(2) of this section, the person
may accept the determination and recommended administrative penalty
and, if applicable, the recommended excess revenue to be disgorged
through a written statement sent to the executive director. If this
option is selected, the person must take all corrective action required
by the commission. The commission by written order will approve the
determination and impose the recommended administrative penalty and,
if applicable, recommended disgorged excess revenue or order a hearing
on the determination and the recommended penalty.
(3) Request for hearing. Not later than the 20th day
after the date the person receives the notice set out in subsection
(f)(2) of this section, the person may submit to the executive director
a written request for a hearing on any or all of the following:
(A) the occurrence of the violation or continuing violation;
(B) the amount of the administrative penalty; and
(C) the amount of disgorged excess revenue, if applicable.
(4) Failure to respond. If the person fails to timely
respond to the notice set out in subsection (f)(2) of this section,
the commission by order will approve the determination and impose
the recommended penalty or order a hearing on the determination and
the recommended penalty.
(5) Opportunity to remedy a weather preparedness violation.
(A) This paragraph applies to a violation of PURA §35.0021, §38.075,
or a commission rule or order adopted or issued under those sections.
(B) PURA §15.024(c), as written, does not apply
to a violation of PURA §35.0021, §38.075, or a commission
rule or order adopted or issued under those sections. This paragraph
implements PURA §15.024(c), as modified by PURA §15.023(a), §35.0021(g),
and §38.075(d), for violations of PURA §35.0021, §38.075,
or a commission rule or order adopted or issued under those sections.
(C) The commission may impose an administrative penalty
against an entity regulated under PURA §35.0021 or §38.075
that violates those sections, or a commission rule or order adopted
under those sections, except:
(i) the commission will assess a penalty for a violation
of PURA §35.0021, §38.075, or a commission rule adopted
under those sections if the entity against which the penalty may be
assessed does not remedy the violation within a reasonable amount
of time; and
(ii) the commission will not assess a penalty for a
violation of PURA §35.0021, §38.075, or a commission rule
or order adopted or issued under those sections if the violation was
accidental or inadvertent, and the entity against which the penalty
may be assessed remedies the violation within a reasonable period
of time.
(D) For purposes of this paragraph, the following provisions
apply unless a provision conflicts with a commission rule or order
adopted under PURA §35.0021 or §38.075, in which case, the
commission rule or order applies.
(i) Not all violations to which this paragraph applies
can be remedied. Clauses (C)(i) and (C)(ii) of this paragraph do not
apply to a violation that cannot be remedied.
(ii) For purposes of clauses (C)(i) and (C)(ii) of
this paragraph, an entity that claims to have remedied an alleged
violation and, if applicable, that the alleged violation was accidental
or inadvertent has the burden of proving its claim to the commission.
Proof that an alleged violation has been remedied and, if applicable,
that the alleged violation was accidental or inadvertent must be evidenced
in writing, under oath, and supported by necessary documentation.
(iii) An entity that remedies a violation that is discovered
during an inspection by the independent organization certified under
PURA §39.151 for the ERCOT power region prior to the deadline
provided to that entity by the independent organization in accordance
with PURA §35.0021 or §38.075 is deemed to have remedied
that violation in a reasonable period of time.
(iv) If the independent organization certified under
PURA §39.151 has not provided an entity with a deadline, the
executive director will determine whether the deadline can be remedied
and, if so, the deadline for remedying a violation within a reasonable
period of time. The executive director will provide the entity with
written notice of the violation and the deadline for remedying the
violation within a reasonable period of time. This notice does not
constitute notice under paragraph (f)(2) of this section unless it
fulfills the other requirements of that subsection. However, the provisions
of subparagraph (f)(2)(D) of this section apply to notice under this
clause.
(v) The executive director will determine if and when
a report should be issued to the commission under subsection (f) of
this section and will make a determination as to what further proceedings
are necessary.
(vi) If the executive director determines that the
alleged violation was not remedied within a reasonable period of time
or is a continuing violation, the executive director will issue a
report to the commission under subsection (f) of this section and
will institute further proceedings, including referral of the matter
for hearing under subsection (i) of this section.
(vii) If the commission determines that the deadline
for remedying a violation provided by the independent organization
certified under PURA §39.151 or determined by the executive director
is unreasonable, the commission will determine what the deadline should
have been. The commission will use this updated deadline to determine
the applicability of subclauses (C)(i) and (C)(ii) of this paragraph
and, if appropriate, as a factor in determining the magnitude of administrative
penalty to impose against the entity for the violation.
(h) Settlement conference. A settlement conference
may be requested by any party to discuss the occurrence of the violation
or continuing violation, the amount of the administrative penalty,
disgorged excess revenue if applicable, and the possibility of reaching
a settlement prior to hearing. A settlement conference is not subject
to the Texas Rules of Evidence or the Texas Rules of Civil Procedure;
however, the discussions are subject to Texas Rules of Civil Evidence
408, concerning compromise and offers to compromise.
(1) If a settlement is reached:
(A) the parties must file a report with the executive
director setting forth the factual basis for the settlement;
(B) the executive director will issue the report of
settlement to the commission; and
(C) the commission by written order will approve the
settlement.
(2) If a settlement is reached after the matter has
been referred to the State Office of Administrative Hearings, the
matter will be returned to the commission. If the settlement is approved,
the commission will issue an order memorializing commission approval
and setting forth commission orders associated with the settlement
agreement.
(i) Hearing. If a person requests a hearing under subsection
(g)(3) of this section, or the commission orders a hearing under subsection
(g)(4) of this section, the commission will refer the case to SOAH
under §22.207 of this title (relating to Referral to State Office
of Administrative Hearings) and give notice of the referral to the
person. For violations of the TWC or a rule or order adopted under
chapter 13 of the TWC, if the person charged with the violation fails
to timely respond to the notice, the commission by order will assess
the recommended penalty or order a hearing to be held on the findings
and recommendations in the report. If the commission orders a hearing,
the case will then proceed as set forth in paragraphs (1) - (5) of
this subsection.
(1) The commission will provide the SOAH administrative
law judge a list of issues or areas that must be addressed.
(2) The hearing must be conducted in accordance with
the provisions of this chapter and notice of the hearing must be provided
in accordance with the Administrative Procedure Act.
(3) The SOAH administrative law judge will promptly
issue to the commission a proposal for decision, including findings
of fact and conclusions of law, about:
(A) the occurrence of the alleged violation or continuing
violation;
Cont'd... |
