1. (a) The penalty amounts shown in the table in this section are provided solely as guidelines to be considered by the Commission in determining the amount of administrative penalties for violations of the requirements of this chapter. The establishment of these penalty guidelines shall in no way limit the Commission's authority and discretion to assess administrative penalties in any amount up to the statutory maximum when warranted by the facts in any case.

2. (b) The amount of any penalty requested, recommended, or finally assessed in an enforcement action will be determined on an individual case-by-case basis for each violation, taking into consideration the following factors:

   1. (1) the person's history of previous violations or formal warnings, including the number of previous violations or formal warnings;
   2. (2) the seriousness of the violation and of any pollution resulting from the violation;
   3. (3) any hazard to the health or safety of the public;
   4. (4) the degree of culpability;
   5. (5) the demonstrated good faith of the person charged; and
   6. (6) any other factor the Commission considers relevant, including but not limited to the number of locate requests received and responded to by an operator and the number of location notifications given by an excavator in the previous year.
3. (c) The recommended monetary penalty for a violation may be reduced by up to 50% if the person charged agrees to a settlement before the Commission conducts an administrative hearing to prosecute a violation. Once the hearing is convened, the opportunity for the person charged to reduce the basic monetary penalty is no longer available. The reduction applies to the basic monetary penalty amount requested and not to any requested enhancements.
4. (d) In determining the total amount of any monetary penalty requested, recommended, or finally assessed in an enforcement action, the Commission may consider, on an individual case-by-case basis for each violation, the demonstrated good faith of the person charged. Demonstrated good faith includes but is not limited to actions taken by the person charged before the filing of an enforcement action to remedy, in whole or in part, a violation of the rules in this chapter or to mitigate the consequences of a violation of the rules in this chapter.
5. (e) Depending upon the nature of and the consequences resulting from a violation of this chapter, the Commission may impose a non-monetary penalty, such as requiring attendance at a safety training course, or may issue a warning.
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Source Note:The provisions of this §18.12 adopted to be effective September 1, 2007, 32 TexReg 3545.