2019 New York Laws
PBS - Public Service
Article 1 - The Department of Public Service
25-A - Combination Gas and Electric Corporations; Administrative Sanctions; Recovery of Penalties.

§  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.