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This entry was published on 2014-09-22
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SECTION 25-A
Combination gas and electric corporations; administrative sanctions; recovery of penalties
Public Service (PBS) CHAPTER 48, ARTICLE 1
§ 25-a. Combination gas and electric corporations; administrative
sanctions; recovery of penalties. Notwithstanding sections twenty-four
and twenty-five of this article: 1. Every combination gas and electric
corporation and the officers thereof shall adhere to every provision of
this chapter and every order or regulation adopted under authority of
this chapter so long as the same shall be in force.

2. (a) The commission shall have the authority to assess a civil
penalty against a combination gas and electric corporation and the
officers thereof subject to the jurisdiction, supervision, or regulation
pursuant to this chapter in an amount as set forth in this section. In
determining the amount of any penalty to be assessed pursuant to this
section, the commission shall consider: (i) the seriousness of the
violation for which a penalty is sought; (ii) the nature and extent of
any previous violations for which penalties have been assessed against
the corporation or officer; (iii) whether there was knowledge of the
violation; (iv) the gross revenues and financial status of the
corporation; and (v) such other factors as the commission may deem
appropriate and relevant. The remedies provided by this subdivision are
in addition to any other remedies provided in law.

(b) Whenever the commission has reason to believe that a combination
gas and electric corporation or such officers thereof should be subject
to imposition of a civil penalty as set forth in this subdivision, it
shall notify such corporation or officer. Such notice shall include, but
shall not be limited to: (i) the date and a brief description of the
facts and nature of each act or failure to act for which such penalty is
proposed; (ii) a list of each statute, regulation or order that the
commission alleges has been violated; and (iii) the amount of each
penalty that the commission proposes to assess.

(c) Whenever the commission has reason to believe that a combination
gas and electric corporation or such officers thereof should be subject
to imposition of a civil penalty or penalties as set forth in this
subdivision, the commission shall hold a hearing to demonstrate why the
proposed penalty or penalties should be assessed against such
combination gas and electric corporation or such officers.

3. Any combination gas and electric corporation determined by the
commission to have failed to reasonably comply as shown by a
preponderance of the evidence with a provision of this chapter,
regulation or an order adopted under authority of this chapter so long
as the same shall be in force shall forfeit a sum not exceeding the
greater of one hundred thousand dollars or two one-hundredths of one
percent of the annual intrastate gross operating revenue of the
corporation, not including taxes paid to and revenues collected on
behalf of government entities, constituting a civil penalty for each and
every offense and, in the case of a continuing violation, each day shall
be deemed a separate and distinct offense.

4. Notwithstanding the provisions of subdivision three of this
section, any such combination gas and electric corporation determined by
the commission to have failed to reasonably comply with a provision of
this chapter, or an order or regulation adopted under the authority of
this chapter specifically for the protection of human safety or
prevention of significant damage to real property, including, but not
limited to, the commission's code of gas safety regulations shall, if it
is determined by the commission by a preponderance of the evidence that
such safety violation caused or constituted a contributing factor in
bringing about: (a) a death or personal injury; or (b) damage to real
property in excess of fifty thousand dollars, forfeit a sum not to
exceed the greater of:

(i) two hundred fifty thousand dollars or three one-hundredths of one
percent of the annual intrastate gross operating revenue of the
corporation, not including taxes paid to and revenues collected on
behalf of government entities, whichever is greater, constituting a
civil penalty for each separate and distinct offense; provided, however,
that for purposes of this paragraph, each day of a continuing violation
shall not be deemed a separate and distinct offense. The total period of
a continuing violation, as well as every distinct violation, shall be
similarly treated as a separate and distinct offense for purposes of
this paragraph; or

(ii) the maximum forfeiture determined in accordance with subdivision
three of this section.

5. Notwithstanding the provisions of subdivision three or four of this
section, a combination gas and electric corporation determined by the
commission to have failed to reasonably comply by a preponderance of the
evidence with a provision of this chapter, or an order or regulation
adopted under authority of this chapter, designed to protect the overall
reliability and continuity of electric service, including but not
limited to the restoration of electric service following a major outage
event or emergency, shall forfeit a sum not to exceed the greater of:

(a) five hundred thousand dollars or four one-hundredths of one
percent of the annual intrastate gross operating revenue of the
corporation, not including taxes paid to and revenues collected on
behalf of government entities, whichever is greater, constituting a
civil penalty for each separate and distinct offense; provided, however,
that for purposes of this paragraph each day of a continuing violation
shall not be deemed a separate and distinct offense. The total period of
a continuing violation, as well as every distinct violation shall be
similarly treated as a separate and distinct offense for purposes of
this paragraph; or

(b) the maximum forfeiture determined in accordance with subdivision
three of this section.

6. Any officer of any combination gas and electric corporation
determined by the commission to have violated the provisions of
subdivision three, four, or five of this section, and who knowingly
violates a provision of this chapter, regulation or an order adopted
under authority of this chapter so long as the same shall be in force
shall forfeit a sum not to exceed one hundred thousand dollars
constituting a civil penalty for each and every offense and, in the case
of a continuing violation, each day shall be deemed a separate and
distinct offense.

7. Any such assessment may be compromised or discontinued by the
commission. All moneys recovered pursuant to this section, together with
the costs thereof, shall be remitted to, or for the benefit of, the
ratepayers in a manner to be determined by the commission.

8. Upon a failure by a combination gas and electric corporation or
officer to remit any penalty assessed by the commission pursuant to this
section, the commission, through its counsel, may institute an action or
special proceeding to collect the penalty in a court of competent
jurisdiction.

9. Any payment made by a combination gas and electric corporation or
the officers thereof as a result of an assessment as provided in this
section, and the cost of litigation and investigation related to any
such assessment, shall not be recoverable from ratepayers.

10. In construing and enforcing the provisions of this chapter
relating to penalties, the act of any director, officer, agent or
employee of a combined gas and electric corporation acting within the
scope of his or her official duties or employment shall be deemed to be
the act of such corporation.

11. It shall be a violation of this chapter should a director, officer
or employee of a public utility company, corporation, person acting in
his or her official duties or employment, or an agent acting on behalf
of an employer take retaliatory personnel action such as discharge,
suspension, demotion, penalization or discrimination against an employee
for reporting a violation of a provision of this chapter of an order or
regulation adopted under the authority of this chapter, including, but
not limited to, those governing safe and adequate service, protection of
human safety or prevention of significant damage to real property,
including, but not limited to, the commission's code of gas safety.
Nothing in this subdivision shall be deemed to diminish the rights,
privileges or remedies of any employee under any other law or
regulation, including but not limited to article twenty-C of the labor
law and section seventy-five-b of the civil service law, or under any
collective bargaining agreement or employment contract.