8002 Rules to Establish an Excavation Damage Prevention Program - 7.0 Enforcement Procedures

7.1Staff shall review each notification of excavation damage to determine any violations by operators, excavators or the approved notification center, and may take 1 or more of the following actions:#

7.1.1Citation#

7.1.1.1Staff may issue a citation in writing to a respondent, notifying the respondent of the results of the on-site evaluation (if applicable) and identifying specific provisions of this regulation or the Damage Prevention Act the respondent allegedly violated.#

7.1.1.2Unless staff and the respondent otherwise agree, the respondent shall reply in writing within 30 days of receipt of the citation in 1 or both of the following ways:#

7.1.1.2.1Submit a written plan to staff specifying actions that the respondent will take to correct the alleged violation, a schedule for completion of each action step, and a final date of completion.#

7.1.1.2.2Request an informal conference with staff.#

7.1.1.3If staff accepts the respondent's submission, staff will deem the citation resolved.#

7.1.2Warning letter#

7.1.2.1Staff may issue a warning letter notifying the respondent of the probable violation.#

7.1.2.2The warning letter shall include both of the following:#

7.1.2.2.1Copies of all relevant documentation, including the citation (if applicable) and any written violation reports;#

7.1.2.2.2Identification of the specific provisions of this regulation or of the Damage Prevention Act alleged to have been violated.#

7.1.2.3Unless staff and the respondent otherwise agree, the respondent shall reply in writing within 30 days of receipt of the warning letter in 1 or both of the following ways:#

7.1.2.3.1Submit a written corrective plan to staff specifying actions the respondent will take to correct the alleged violation, a schedule for completion of each step, and a final date of completion;#

7.1.2.3.2Request an informal conference with staff.#

7.1.2.4If staff accepts the respondent's submission, staff will deem the warning resolved.#

7.1.3Notice of probable violation ("NOPV")#

7.1.3.1If staff has reason to believe that a material violation of this regulation or the Damage Prevention Act has occurred, or if the respondent has failed to complete the agreed upon corrective action plan relating to a citation or a warning letter, or if the respondent has multiple, similar violations, staff may commence an enforcement proceeding by issuing an NOPV.#

7.1.3.2The NOPV shall include all of the following:#

7.1.3.2.1A listing of the provisions of this regulation or the Damage Prevention Act which the respondent is alleged to have violated;#

7.1.3.2.2A description of the evidence on which the allegations are based;#

7.1.3.2.3Copies of all relevant documentation, including a copy of any written violation reports, citations, or warning letters;#

7.1.3.2.4Notice of the response options available to the respondent;#

7.1.3.2.5If a penalty is proposed, the amount of the proposed penalty; and#

7.1.3.2.6A proposed consent order.#

7.1.3.3Within 30 days after receipt of an NOPV, the respondent shall respond in 1 or more of the following ways:#

7.1.3.3.1Sign and return the consent order. The respondent shall pay the proposed penalty in accordance with subsection 7.8 of this regulation;#

7.1.3.3.2Submit a written explanation, information, or other material in response to the allegations contained in the NOPV;#

7.1.3.3.3Request an informal conference with staff.#

7.1.3.4An NOPV may be amended at any time prior to the issuance of a final order. If an amendment includes any new material allegations of fact or proposes an increased penalty, the respondent shall have another opportunity to respond under subsection 7.1.3.3 of this regulation.#

7.2Informal conference#

7.2.1Upon request for an informal conference under this regulation, staff shall establish a date, time, and location for the conference.#

7.2.2At the informal conference, the respondent shall have the right to be represented by an attorney and to present relevant evidence.#

7.2.3Upon request, staff shall make available any evidence in staff's possession which indicates the respondent may have violated this regulation or the Damage Prevention Act.#

7.2.4The respondent shall have the opportunity to rebut evidence at the informal conference, in writing within 20 days following the informal conference, or in another mutually agreed upon manner.#

7.3Failure to respond#

7.3.1Failure to respond in accordance with subsections 7.1.1, 7.1.2, and 7.1.3 of this regulation shall constitute a waiver of the respondent's right to contest the allegations in the citation, warning letter, and NOPV and authorizes the Commission, upon 30 days' notice to the respondent, to find the facts to be as alleged in the NOPV and to issue a final order.#

7.3.2Prior to the Commission's issuance of a final order under this subsection, the respondent may submit a written plan to the Commission specifying actions that the respondent will take to correct the alleged violation, a schedule for completion of each action step, and a final date of completion. If the Commission accepts the corrective plan submitted by the respondent, the Commission may issue a consent order.#

7.4Service. Service of the citation, warning letter, or NOPV shall only be complete upon service on the respondent's registered agent by U.S. Postal Service first class mail delivery or to a person designated by the respondent to receive service from staff by either U.S. Postal Service or by email. Staff shall serve citations, warning letters, or NOPVs by U.S. Postal Service first class mail delivery and to a person designated by the respondent to receive service from the Commission to those respondents who have requested both methods of service.#

7.5Consent orders#

7.5.1Notwithstanding any other provision to the contrary, the Commission may at any time resolve an outstanding NOPV with a consent order.#

7.5.2A consent order shall include all of the following:#

7.5.2.1The signature of the respondent or a duly authorized representative, indicating agreement with the terms of the consent order; and#

7.5.2.2An express waiver of appeal or judicial review rights that would otherwise attach to a final order of the Commission.#

7.5.3A consent order is a final order of the Commission having the same force and effect as a final order.#

7.5.4A consent order may include corrective action, assessment of a penalty, and mandatory education or training.#

7.5.5A consent order need not constitute an admission that the respondent committed the violation.#

7.6Final order#

7.6.1If staff and the respondent do not agree to a consent order, the Commission will conduct an evidentiary hearing pursuant to the Rules of Practice and Procedure of the Delaware Public Service Commission, codified at 26 DE Admin. Code 1001. After the conclusion of the hearing, the Commission shall issue a final order.#

7.6.2A final order shall include all of the following:#

7.6.2.1A summary of the evidence;#

7.6.2.2Findings of fact on all material issues;#

7.6.2.3A statement of the agency's determination or action;#

7.6.2.4Signature of 3 or more members of the Commission; and#

7.6.2.5If a penalty is assessed, the amount of the penalty and the procedures for payment of the penalty.#

7.7Assessment of penalties. Except as provided by 26 Del.C. §808, the Commission shall assess penalties in accordance with 26 Del.C. §810 to whoever, by action or inaction, violates a provision of this regulation or the Damage Prevention Act.#

7.8Payment of Penalties#

7.8.1Payment of a penalty under this regulation shall be made by check or money order to the "Public Service Commission" and sent to the "Underground Damage Prevention Program," 861 Silver Lake Blvd., Cannon Building, Suite 100, Dover, Delaware 19904.#

7.8.2Staff shall log the payment and forward payment to the secretary of the Commission.#

7.8.3If a respondent fails to pay the full amount of a penalty assessed in a consent order or final order within 30 days after receipt of the final order, the Commission may refer the case to the Attorney General with a request that an action to collect the assessed penalty be brought in any court of competent jurisdiction.#