515-9-4-.11.1 Civil Penalties for Local Governing Authorities (Tiered Penalty Structure)

(1)Definitions: For the purpose of this rule and the assessment and enforcement of civil penalties under this Chapter 515-9-4 of the Commission's Utility Rules, the following definitions apply:#

(a)"Local governing authority" means a county, municipality or local authority created by or pursuant to general, local or special Act of the General Assembly or by the Constitution of the State of Georgia, and any local authority that is created or activated by an appropriate ordinance or resolution of the governing body of a county or municipality individually or jointly with other political subdivisions of this state that provide service that includes but not limited to road and street construction and maintenance, water supply and distribution, waste- water, sewage, and storm-water collection and disposal.#

(b)"Willful noncompliance" means intentional or knowing refusal or failure to perform, or comply with, a duty created or imposed by statute or by this Commission's Utility Rules. "Willful noncompliance" also includes bad faith or a conscious indifference to the consequences of failure to comply with GUFPA or this Commission's rules issued thereunder. A local governing authority's failure to file a timely response to a notice of probable violation of the Act or the Commission's Utility Rules shall constitute a presumption of willful noncompliance by a local governing authority receiving such notice, which presumption may be rebutted by evidence demonstrating that the local governing authority did not receive actual or constructive notice of its alleged violation of the Act.#

(c)"Refusal to comply" means that an underground facility owner or operator does not respond in the Positive Response Information System ("PRIS") to a locate request, does not respond to a direct telephone call to locate their facilities, or other such direct refusal. "Refusal to comply" does not mean a case where the volume of requests or some other mitigating circumstance prevents the underground facility owner or operator from locating in accordance with O.C.G.A. § 25-9-7. "Refusal to comply" also means a refusal or failure to file a timely response to a notice of probable violation of the Act or of the Commission's Utility Rules; and such refusal or failure shall constitute a presumption of a local governing authority's "willful refusal to comply," which presumption may be rebutted by evidence demonstrating that the local governing authority did not receive actual or constructive notice of its alleged violation of the Act.#

(2)Enforcement Procedures for Violations of the Act by Local Governing Authorities.#

(a)Notice of Probable Violation and Request for Information. Upon receipt of a complaint or other information concerning a probable violation of the Act by a local governing authority, the Commission Staff shall conduct a preliminary investigation of such complaint or information; and as part of such preliminary investigation, the Commission's investigator may send notice of a probable violation and a request for information to the local governing authority. The authority receiving such notice and request for information shall respond within thirty (30) days to such notice and request. The Commission's request for information may request any or all of the following information:#

1.Submission of written explanations, information or other materials in response to the allegations;#

2.Information concerning the size, annual budget, and gross receipts of the authority;#

3.Where applicable and available, the total number of underground facility connections and types of utilities within the territory of the local governing authority;#

4.Total number of locate tickets received annually by the local governing authority;#

5.The number of locate codes and calls made annually to the local governing authority from the UPC; and#

6.When applicable, the number of customers whose service may have been interrupted as a result of the violations and the duration of such interruption. Such list is not meant to be exhaustive, and the Commission's investigator may request additional information during his or her investigation. Responses shall be due within thirty (30) days after receipt of such notice and request from the local governing authority, unless such time is extended by the Commission or its investigator pursuant to a written request from the local governing authority before the expiration of such thirty (30) day period. As noted in Paragraph (1) of this Rule, failure of the alleged violator to respond in a timely manner to the Commission investigator's notice of probable violation(s) and provide to the Commission the information requested shall constitute a presumption of willful noncompliance with the Act or applicable Commission rules on the part of the non-responding recipient of such notice and request, but such presumption may be rebutted by evidence demonstrating that the local governing authority did not receive actual or constructive notice of its alleged violation of the Act.#

(b)Proposed Compliance Order. At any time during the investigation, the Commission's investigator may submit a written compliance order to the local governing authority, and the local governing authority may respond during the investigation or proceedings as follows:#

1.The authority may agree to the Commission's proposed compliance order, if such proposed order has not been withdrawn by the Commission;#

2.The authority may object to the proposed compliance order and submit written explanations, information or other materials in response to the allegations in the notice of probable violation; and the authority can request:#

(i)review before the GUFPA Advisory Committee; or#

(ii)an informal conference with the Commission Staff; or#

(iii)a full evidentiary hearing before the Commission or its duly appointed hearing officer.#

(c)Commission Staff Action. After investigation, the Commission's investigator may take appropriate action to enforce the Act and the Commission's rules issued thereunder, including any or all of the following:#

1.Recommend no action and terminate the investigation;#

2.Recommend that a warning letter be issued to the person alleged to have committed the violation ("the respondent");#

3.Enter settlement negotiations with the respondent; and upon reaching agreement on settlement terms, the Commission Staff shall present such proposed settlement agreement to the Commission for its acceptance or rejection;#

4.Recommend training be required (in lieu of or in addition to any otherwise recommended civil penalties, or any portion thereof) for violations of the Act;#

5.Recommend that the Commission assess civil penalties for violations of the Act in accordance with O.C.G.A. § 25-9-13 and in accordance with the tiered penalty structure set forth below in Paragraph (3) of this Rule.#

(d)Notices. All notices under the Act from the Commission to any local governing authority shall be sent by certified mail (return receipt requested). A signed delivery receipt or post office return marked refused or unclaimed shall constitute a presumption of notice to and legal service upon the local governing authority to whom it is addressed; however, such presumption may be rebutted by evidence demonstrating that the local governing authority did not receive actual or constructive notice of its alleged violation of the Act.#

(3)Tiered Structure to Be Utilized in Assessing Civil Penalties against Local Governing Authorities for Violations of the Act.#

(a)Factors To Be Considered. When determining to recommend assessment of a civil penalty, the Commission's investigators shall consider the following factors in applying the tiered penalty structure established in Subparagraph (3) (b) of this Rule:#

1.The nature, circumstances and gravity of the violation, (including, but not limited to, adverse impact on the area, the general public and customers);#

2.The degree of the respondent's culpability;#

3.The respondent's history of prior offenses;#

4.The respondent's ability to pay;#

5.Any good faith effort by the Authority respondent in attempting to achieve compliance;#

6.The effect on the respondent's ability to continue in business;#

7.The number of locate tickets and locate call and codes received annually by the local governing authority;#

8.The cost of the local government's compliance with the statute or rule violated;#

9.The number of customers whose services may have been interrupted by the local governing authority's violation and the duration of such interruption; and#

10.The size, annual budget, gross receipts, number of underground facility connections and types of connections and types of utilities within the territory of the local governing authority and whether owned or operated by such authority.#

(b)Tiered Penalty Structure. The tiered penalty structure set forth below takes into account many of the above-mentioned factors by focusing on the number of employees employed by the local governing authority, or the number of underground facility, water and sewer connections a local governing authority has, which are functions and indicators of such authority's population, gross revenues, customer base, service area and annual budget. In determining the tier classification for a local governing authority, the Commission's investigators shall look to the number of underground facility, water and sewer connections such local governing authority has in making such determination. In cases where the local governing authority has no connections, the Commission's investigator shall determine the tier by the number of employees employed by such local governing authority in underground facility, road maintenance, water and sewer or public works functions (including contract personnel who perform work for the authority). Along with the considerations delineated in Subparagraph (a) of this Subsection (3), such tier classifications shall be made as follows: Tiered Penalty Structure:#

1.Tier One Authorities that have 25,000 or less total underground facility, water and sewer connections or that employ 1 through 25 people in underground facility, road maintenance, water, sewer or public works functions (including contractor personnel), may be assessed a penalty of up to $500 per violation for the first three and up to $1,000 per violation thereafter not to exceed $10,000 total per rolling 12-month period.#

2.Tier Two Authorities that have more than 25,000 but less than 50,000 total underground facility, water and sewer connections or that employ 26 through 50 people in underground facility, road maintenance, water, sewer or public works functions (including contractor personnel), may be assessed a penalty of up to $750 per violation for the first three and up to $1,250 per violation thereafter not to exceed $20,000 total per rolling 12-month period.#

3.Tier Three Authorities that have 50,000 or more, but less than 100,000 total underground facility, water and sewer connections, or that employ 51 through 75 people in underground facility, road maintenance, water, sewer or public works functions (including contractor personnel), may be assessed a penalty of up to $1,000 per violation for the first three and up to $1,500 per violation thereafter not to exceed $30,000 total per rolling 12-month period.#

4.Tier Four Authorities that have 100,000 or more, but less than 200,000 total underground facility, water and sewer connections or that employ 76 through 100 people in underground facility, road maintenance, water, sewer or public works functions (including contractor personnel), may be assessed a penalty of up to $1,500 per violation for the first three and up to $2,500 per violation thereafter not to exceed $40,000 total per rolling 12-month period.#

5.Tier Five Authorities that have 200,000 or more total underground facility, water and sewer connections or that employs 101 or more people in underground facility, road maintenance, water, sewer or public works functions (including contractor personnel), may be assessed a penalty of up to $2,000 per violation for the first three and up to $5,000 per violation thereafter not to exceed $50,000 total per rolling 12-month period. The tiered penalty structure shall be established as a maximum. No minimum penalty is specified.#

(4)Commission Discretion in Assessing Civil Penalties against Local Governing Authorities. Nothing set forth elsewhere in this Rule shall require the Commission or its investigators to assess civil penalties against a local governing authority for violations of the Act or the Commission's Utility Rules. Under each penalty tier, the investigator may recommend training. If the investigator finds that a probable violation has occurred, the investigator may recommend training in lieu of all or any portion of any otherwise recommended civil penalties for any local governing authority's violation. The investigator shall provide suggestions for corrective action to any person requesting such assistance on behalf of a local governing authority. Upon determination after investigation, the Commission's investigator may, subject to Commission review and approval, make recommended offers of settlement to the respondent or make recommended findings for assessment of civil penalties or other corrective action, subject to respondent's right to hearing thereon before the Advisory Committee and/or the Commission.#

Authority: O.C.G.A. § 46-2-30.#