16 Tex. Admin. Code § 8.135 - Penalty Guidelines for Pipeline Safety Violations
(a) Policy. Improved safety and environmental
protection are the desired outcomes of any enforcement action. Encouraging
operators 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 pipeline
safety-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. This section complies
with the requirements of Texas Natural Resources Code, §
81.0531(d),
and Texas Utilities Code, §
121.206(d).
The penalty amounts contained 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 provisions of Texas Natural
Resources Code, Title 3, relating to pipeline safety, or of rules, orders or
permits relating to pipeline safety adopted under those provisions, and for
violations of Texas Utilities Code, Chapter 121, Subchapter E, or a safety
standard or other rule prescribed or adopted under that subchapter.
(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 minimum 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 Natural Resources Code,
Title 3, relating to pipeline safety, or of rules, orders, or permits relating
to pipeline safety adopted under those provisions, and for violations of Texas
Utilities Code, Chapter 121, Subchapter E, or a safety standard or other rule
prescribed or adopted under that subchapter, 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, including the number of previous violations;
(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.
(e) Typical
penalties. Typical penalties for violations of provisions of Texas Natural
Resources Code, Title 3, relating to pipeline safety, or of rules, orders, or
permits relating to pipeline safety adopted under those provisions, and for
violations of Texas Utilities Code, §
121.201, or a safety
standard or other rule prescribed or adopted under that provision 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, as shown in Table 2. The enhancement may be
in any amount in the range shown for each type of violation.
(g)
Penalty enhancements for certain violators. For violations in which the person
charged has a history of prior violations 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 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 penalty amount requested and not to any
requested enhancements.
(i)
Demonstrated good faith. In determining the total amount of any 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 or to mitigate the consequences of a violation.
(j) 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
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