| (a) Policy. Improved safety and environmental protection
are the desired outcomes of any enforcement action. Encouraging operators,
excavators, and other persons to take appropriate voluntary corrective
and future protective actions once a violation has occurred is an
effective component of the enforcement process. Deterrence of violations
through penalty assessments is also a necessary and effective component
of the enforcement process. A rule-based enforcement penalty guideline
to evaluate and rank underground pipeline damage prevention-related
violations is consistent with the central goal of the Commission's
enforcement efforts to promote compliance. Penalty guidelines set
forth in this section will provide a framework for more uniform and
equitable assessment of penalties throughout the state, while also
enhancing the integrity of the Commission's enforcement program.
(b) Only guidelines. The penalty amounts shown in the
tables in this section are provided solely as guidelines to be considered
by the Commission in determining the amount of administrative penalties
for violations of the requirements of Texas Health and Safety Code, §756.126;
Texas Natural Resources Code, §117.012; Texas Utilities Code, §121.201;
or the provisions of a rule or standard adopted or an order issued
under any of these statutes, as they pertain to underground pipeline
damage prevention.
(c) Commission authority. The establishment of these
penalty guidelines shall in no way limit the Commission's authority
and discretion to cite violations and assess administrative penalties.
The typical penalties listed in this section are for the most common
violations cited; however, this is neither an exclusive nor an exhaustive
list of violations that the Commission may cite. The Commission retains
full authority and discretion to cite violations of Texas Health and
Safety Code, §756.126; Texas Natural Resources Code, §117.012;
and Texas Utilities Code, §121.201, and the provisions of a rule
or standard adopted or an order issued under those statutes and to
assess administrative penalties in any amount up to the statutory
maximum when warranted by the facts in any case, regardless of inclusion
in or omission from this section.
(d) Factors considered. The amount of any penalty requested,
recommended, or finally assessed in an enforcement action will be
determined on an individual case-by-case basis for each violation,
taking into consideration the following factors:
(1) the person's history of previous violations or
formal warnings, including the number of previous violations or formal
warnings;
(2) the seriousness of the violation and of any pollution
resulting from the violation;
(3) any hazard to the health or safety of the public;
(4) the degree of culpability;
(5) the demonstrated good faith of the person charged;
and
(6) any other factor the Commission considers relevant,
including but not limited to the number of locate requests received
and responded to by an operator and the number of location notifications
given by an excavator in the previous year.
(e) Typical penalties. Regardless of the method by
which the typical penalty amount is calculated, the total penalty
amount will be within the statutory limit. Typical penalties for violations
of Texas Health and Safety Code, §756.126; Texas Natural Resources
Code, §117.012, and Texas Utilities Code, §121.201, relating
to excavation in the vicinity of an underground pipeline and for violations
of a rule or standard adopted or an order issued under those statutes
relating to excavation in the vicinity of an underground pipeline
are set forth in Table 1.
Attached Graphic
(f) Penalty enhancements for certain violations. For
violations that involve threatened or actual pollution; result in
threatened or actual safety hazards; or result from the reckless or
intentional conduct of the person charged, the Commission may assess
an enhancement of the typical penalty. The enhancement may be in any
amount in the range shown for each type of violation as shown in Table
2.
Attached Graphic
(g) Penalty enhancements for certain violators. For
violations in which the person charged has a history of prior violations
or warnings within seven years of the current enforcement action,
the Commission may assess an enhancement based on either the number
of prior violations or the total amount of previous administrative
penalties, but not both. The actual amount of any penalty enhancement
will be determined on an individual case-by-case basis for each violation.
The guidelines in Tables 3 and 4 are intended to be used separately.
Either guideline may be used where applicable, but not both.
Attached Graphic
Attached Graphic
(h) Penalty reduction for settlement before hearing.
The recommended monetary penalty for a violation may be reduced by
up to 50% if the person charged agrees to a settlement before the
Commission conducts an administrative hearing to prosecute a violation.
Once the hearing is convened, the opportunity for the person charged
to reduce the basic monetary penalty is no longer available. The reduction
applies to the basic monetary penalty amount requested and not to
any requested enhancements.
(i) Demonstrated good faith. In determining the total
amount of any monetary penalty requested, recommended, or finally
assessed in an enforcement action, the Commission may consider, on
an individual case-by-case basis for each violation, the demonstrated
good faith of the person charged. Demonstrated good faith includes
but is not limited to actions taken by the person charged before the
filing of an enforcement action to remedy, in whole or in part, a
violation of the rules in this chapter or to mitigate the consequences
of a violation of the rules in this chapter.
(j) Other sanctions. Depending upon the nature of and
the consequences resulting from a violation of this chapter, the Commission
may impose a non-monetary penalty, such as requiring attendance at
a safety training course, or may issue a warning.
(k) Penalty calculation worksheet. The penalty calculation
worksheet shown in Table 5 lists the typical penalty amounts for certain
violations; the circumstances justifying enhancements of a penalty
and the amount of the enhancement; and the circumstances justifying
a reduction in a penalty and the amount of the reduction.
Attached Graphic
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