16 Tex. Admin. Code § 18.12 - Penalty Guidelines
(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.
(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.
(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.
(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.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.