§ 25-A — Combination gas and electric corporations; administrative sanctions; recovery of penalties

§ 25-a. Combination gas and electric corporations; administrative\nsanctions; recovery of penalties. Notwithstanding sections twenty-four\nand twenty-five of this article: 1. Every combination gas and electric\ncorporation and the officers thereof shall adhere to every provision of\nthis chapter and every order or regulation adopted under authority of\nthis chapter so long as the same shall be in force.\n 2. (a) The commission shall have the authority to assess a civil\npenalty against a combination gas and electric corporation and the\nofficers thereof subject to the jurisdiction, supervision, or regulation\npursuant to this chapter in an amount as set forth in this section. In\ndetermining the amount of any penalty to be assessed pursuant to this\nsection, the commission shall consider: (i) the seriousness of the\nviolation for which a penalty is sought; (ii) the nature and extent of\nany previous violations for which penalties have been assessed against\nthe corporation or officer; (iii) whether there was knowledge of the\nviolation; (iv) the gross revenues and financial status of the\ncorporation; and (v) such other factors as the commission may deem\nappropriate and relevant. The remedies provided by this subdivision are\nin addition to any other remedies provided in law.\n (b) Whenever the commission has reason to believe that a combination\ngas and electric corporation or such officers thereof should be subject\nto imposition of a civil penalty as set forth in this subdivision, it\nshall notify such corporation or officer. Such notice shall include, but\nshall not be limited to: (i) the date and a brief description of the\nfacts and nature of each act or failure to act for which such penalty is\nproposed; (ii) a list of each statute, regulation or order that the\ncommission alleges has been violated; and (iii) the amount of each\npenalty that the commission proposes to assess.\n (c) Whenever the commission has reason to believe that a combination\ngas and electric corporation or such officers thereof should be subject\nto imposition of a civil penalty or penalties as set forth in this\nsubdivision, the commission shall hold a hearing to demonstrate why the\nproposed penalty or penalties should be assessed against such\ncombination gas and electric corporation or such officers.\n 3. Any combination gas and electric corporation determined by the\ncommission to have failed to reasonably comply as shown by a\npreponderance of the evidence with a provision of this chapter,\nregulation or an order adopted under authority of this chapter so long\nas the same shall be in force shall forfeit a sum not exceeding the\ngreater of one hundred thousand dollars or two one-hundredths of one\npercent of the annual intrastate gross operating revenue of the\ncorporation, not including taxes paid to and revenues collected on\nbehalf of government entities, constituting a civil penalty for each and\nevery offense and, in the case of a continuing violation, each day shall\nbe deemed a separate and distinct offense.\n 4. Notwithstanding the provisions of subdivision three of this\nsection, any such combination gas and electric corporation determined by\nthe commission to have failed to reasonably comply with a provision of\nthis chapter, or an order or regulation adopted under the authority of\nthis chapter specifically for the protection of human safety or\nprevention of significant damage to real property, including, but not\nlimited to, the commission's code of gas safety regulations shall, if it\nis determined by the commission by a preponderance of the evidence that\nsuch safety violation caused or constituted a contributing factor in\nbringing about: (a) a death or personal injury; or (b) damage to real\nproperty in excess of fifty thousand dollars, forfeit a sum not to\nexceed the greater of:\n (i) two hundred fifty thousand dollars or three one-hundredths of one\npercent of the annual intrastate gross operating revenue of the\ncorporation, not including taxes paid to and revenues collected on\nbehalf of government entities, whichever is greater, constituting a\ncivil penalty for each separate and distinct offense; provided, however,\nthat for purposes of this paragraph, each day of a continuing violation\nshall not be deemed a separate and distinct offense. The total period of\na continuing violation, as well as every distinct violation, shall be\nsimilarly treated as a separate and distinct offense for purposes of\nthis paragraph; or\n (ii) the maximum forfeiture determined in accordance with subdivision\nthree of this section.\n 5. Notwithstanding the provisions of subdivision three or four of this\nsection, a combination gas and electric corporation determined by the\ncommission to have failed to reasonably comply by a preponderance of the\nevidence with a provision of this chapter, or an order or regulation\nadopted under authority of this chapter, designed to protect the overall\nreliability and continuity of electric service, including but not\nlimited to the restoration of electric service following a major outage\nevent or emergency, shall forfeit a sum not to exceed the greater of:\n (a) five hundred thousand dollars or four one-hundredths of one\npercent of the annual intrastate gross operating revenue of the\ncorporation, not including taxes paid to and revenues collected on\nbehalf of government entities, whichever is greater, constituting a\ncivil penalty for each separate and distinct offense; provided, however,\nthat for purposes of this paragraph each day of a continuing violation\nshall not be deemed a separate and distinct offense. The total period of\na continuing violation, as well as every distinct violation shall be\nsimilarly treated as a separate and distinct offense for purposes of\nthis paragraph; or\n (b) the maximum forfeiture determined in accordance with subdivision\nthree of this section.\n 6. Any officer of any combination gas and electric corporation\ndetermined by the commission to have violated the provisions of\nsubdivision three, four, or five of this section, and who knowingly\nviolates a provision of this chapter, regulation or an order adopted\nunder authority of this chapter so long as the same shall be in force\nshall forfeit a sum not to exceed one hundred thousand dollars\nconstituting a civil penalty for each and every offense and, in the case\nof a continuing violation, each day shall be deemed a separate and\ndistinct offense.\n 7. Any such assessment may be compromised or discontinued by the\ncommission. All moneys recovered pursuant to this section, together with\nthe costs thereof, shall be remitted to, or for the benefit of, the\nratepayers in a manner to be determined by the commission.\n 8. Upon a failure by a combination gas and electric corporation or\nofficer to remit any penalty assessed by the commission pursuant to this\nsection, the commission, through its counsel, may institute an action or\nspecial proceeding to collect the penalty in a court of competent\njurisdiction.\n 9. Any payment made by a combination gas and electric corporation or\nthe officers thereof as a result of an assessment as provided in this\nsection, and the cost of litigation and investigation related to any\nsuch assessment, shall not be recoverable from ratepayers.\n 10. In construing and enforcing the provisions of this chapter\nrelating to penalties, the act of any director, officer, agent or\nemployee of a combined gas and electric corporation acting within the\nscope of his or her official duties or employment shall be deemed to be\nthe act of such corporation.\n 11. It shall be a violation of this chapter should a director, officer\nor employee of a public utility company, corporation, person acting in\nhis or her official duties or employment, or an agent acting on behalf\nof an employer take retaliatory personnel action such as discharge,\nsuspension, demotion, penalization or discrimination against an employee\nfor reporting a violation of a provision of this chapter of an order or\nregulation adopted under the authority of this chapter, including, but\nnot limited to, those governing safe and adequate service, protection of\nhuman safety or prevention of significant damage to real property,\nincluding, but not limited to, the commission's code of gas safety.\nNothing in this subdivision shall be deemed to diminish the rights,\nprivileges or remedies of any employee under any other law or\nregulation, including but not limited to article twenty-C of the labor\nlaw and section seventy-five-b of the civil service law, or under any\ncollective bargaining agreement or employment contract.\n