NY Pub Serv L § 25-A (2021)
2021 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.