Kan. Admin. Regs. § 82-14-6

Current through Register Vol. 43, No. 24, June 13, 2024

Section 82-14-6 - Violation of act; enforcement procedures

(a) After investigation, if the commission staff believes that there has been a violation or violations of K.S.A. 66-1801 et seq. and amendments thereto or any regulation or commission order issued pursuant to the Kansas underground utility damage prevention act and the commission staff determines that penalties or remedial action is necessary to correct the violation or violations, the commission staff may serve a notice of probable noncompli-ance on the person or persons against whom a violation is alleged. Service shall be made by registered mail or hand delivery.

(b) Any notice of probable noncompliance issued under this regulation may include the following:

(1) A statement of the provisions of the statutes, regulations, or commission orders that the respondent is alleged to have violated and a statement of the evidence upon which the allegations are based;

(2) a copy of this regulation; and

(3) any proposed remedial action or penalty assessments, or both, requested by the commission staff.

(c) Within 30 days of receipt of a notice of probable noncompliance, the recipient shall respond by mail in at least one of the following ways:

(1) Submit written explanations, a statement of general denial, or other materials contesting the allegations;

(2) submit a signed acknowledgment of commission staff's findings of noncompliance; or

(3) submit a signed proposal for the completion of any remedial action that addresses the commission staff's findings of noncompliance.

(d) The commission staff may amend a notice of probable noncompliance at any time before issuance of a penalty assessment. If an amendment includes any new material allegations of fact or if the staff proposes an increased civil penalty amount or additional remedial action, the respondent shall have 30 days from service of the amendment to respond.

(e) Unless good cause is shown or a consent agreement is executed by the commission staff and the respondent before the expiration of the 30-day time limit, the failure of a party to mail a timely response to a notice of probable noncompliance shall constitute an admission to all factual allegations made by the commission staff and may be used against the respondent in future proceedings.

(f) At any time before an order is issued assessing penalties or requiring remedial action or before a hearing, the commission staff and the respondent may agree to dispose of the case by joint execution of a consent agreement. The consent agreement may allow for a smaller penalty than otherwise required. The consent agreement may also allow for nonmonetary remedial penalties. Upon joint execution, the consent agreement shall become effective when the commission issues an order approving the consent agreement.

(g) Each consent agreement shall include the following:

(1) An admission by the respondent of all jurisdic-tional facts;

(2) an express waiver of any further procedural steps and of the right to seek judicial review or otherwise challenge or contest the validity of the commission's show cause order;

(3) an acknowledgment that the notice of probable noncompliance may be used to construe the terms of the order approving the consent agreement; and

(4) a statement of the actions required of the respondent and the time by which the actions shall be completed.

(h) If any violation resulting in a notice of probable noncompliance is not settled with a consent agreement, a penalty order may be issued by the commission no sooner than 30 days after the respondent has been served with a notice of probable noncompliance.

(i) The respondent shall remit payment for any civil assessments imposed by a penalty order within 20 days of service of the order.

(j) The respondent may request a hearing to challenge the allegations set forth in the penalty order by filing a motion with the commission within 15 days of service of a penalty order. The respondent's failure to respond within 15 days shall be considered an admission of non-compliance.

(k) An order may be issued by the commission to open a formal investigation docket regarding any potential noncompliance with the Kansas underground utility damage prevention act, and amendments thereto, or any regulations or orders pursuant to that act. If the commission finds evidence that any party to the investigation docket was not in compliance, a show cause order may be issued by the commission. If a show cause order is issued during the course of a formal investigation, the staff shall not be required to issue a notice of probable noncompliance.

Kan. Admin. Regs. § 82-14-6

Authorized by K.S.A 66-106 and K.S.A 66-1812; implementing K.S.A 66-1812; effective July 6, 2009.