4 Colo. Code Regs. § 723-11-11504

Current through Register Vol. 47, No. 17, September 10, 2024

Section 4 CCR 723-11-11504 - Notice of Probable Violation (NPV)

(a) In the instance of a probable violation of these rules that has a previous enforcement history or poses a moderate to severe risk to public safety or pipeline or LNG facility integrity, as determined by current regulation, industry standard, or other relevant objective technical standard, the PSP Chief may issue a NPV to an operator. The NPV will advise the operator of the probable violation and include the following sections:

(I) a statement of inspection findings that incorporates the requirements of rule 11502, above;

(II) a statement of the regulatory interpretation upon which the determination of probable violation is based;

(III) a civil penalty calculation using rule 11501 stating separately for each probable violation the maximum penalty amount provided and a total penalty;

(IV) the PSP Chief's civil penalty assessment evaluation consistent with § 40-7-117, C.R.S. that includes a conclusion for or against assessment of the civil penalty in whole or in part;

(V) a final recommended civil penalty assessment;

(VI) as appropriate, the NPV will offer the operator a proposed alternative enforcement in lieu of the civil penalties, in whole or in part. The proposed alternative enforcement will describe the process in sufficient detail to explain how it will provide for the improvement of public safety;

(VII) as appropriate, the NPV will include a compliance directive that prescribes specific actions to be taken by the operator within a specific timeframe to correct the violation; and

(VIII) a description of the operator's response options.

(b) The NPV shall be filed in a new proceeding and shall serve as notice of the alleged probable violation and potential actions to be taken by the Commission.

(c) Within 30 days after receipt of a NPV issued pursuant to the rule, an operator shall file in the proceeding its response with one of the following options.

(I) The operator may admit the NPV through the following filings and actions:

(A) the operator shall pay any proposed final civil penalty in full; and

(B) the operator shall agree to any proposed compliance directive.

(II) The operator may request the Commission consider an offer in compromise to the NPV through the following filings and actions:

(A) the operator may request reconsideration, reissuance, or dismissal of the initial NPV through submittal of a written explanation, information, or other material in response to the allegations contained in the NPV; in objection to the proposed compliance directive; or in mitigation of the proposed final civil penalty; or

(B) the operator and the PSP Chief may jointly file a stipulation and settlement agreement pursuant to rule 11508, resolving the allegations in the NPV for the Commission's consideration.

(III) The operator may oppose the NPV, or any part thereof. The operator shall file its response opposing the allegations in the NPV in the proceeding and provide all relevant information it finds addresses the issues raised. If an operator opposes any alleged violation in the NPV, the matter shall be set for hearing. When applicable and appropriate, such appeal will stay the duration of the noncompliance for purposes of any penalty calculation contingent upon interim operator actions to cure the alleged violation(s).

(d) If the operator fails to respond as provided in this rule within 30 days of the NPV, the NPV shall be deemed opposed by the operator and shall be set for hearing as prescribed by subparagraph (c)(III) above.

(e) If a violator does not remit the assessed penalty or the lesser amount agreed upon pursuant to this rule, the Commission may recover the amount due plus court costs in a civil action in any court of competent jurisdiction.

(f) Any civil penalty authorized by this rule may be reduced by the Commission based on consideration of factors and metrics, as follows:

(I) an evaluation of the severity of the violation, in terms of its actual or potential effects on the public safety or pipeline system integrity;

(II) the extent to which the violation and any underlying conditions that may have contributed to the likelihood or severity of the violation have been remedied;

(III) the extent to which the violator agrees to spend, in lieu of the payment of part of the civil penalty, a specified amount on Commission-approved measures to reduce the overall risk to the pipeline system safety or integrity; except that the amount of the penalty payable to the Commission shall be no less than $5,000; and

(IV) whether or not the violation was self-reported by the operator.

(g) The remedy provided in this rule is an addition to any other remedies available to the Commission under the constitution or laws of the state or of the United States.

4 CCR 723-11-11504

44 CR 04, February 25, 2021, effective 3/17/2021

47 CR 09, May 10, 2024, effective 5/30/2024