Section 291-1-007 - CIVIL PENALTY PROCEDURES:007.01Purpose and Scope:007.01A The purpose of this section is to establish procedures which the Commission will follow when civil penalties are sought against any person as defined in Neb. Rev. Stat. § 75-139.01 pursuant to§ 75-156.007.01B For purposes of these rules, civil penalty has the same meaning as administrative fine and these terms may be used interchangeably.007.02Assessing Civil Penalties:007.02A In addition to other penalties and relief provided by law, the Commission may, upon a finding that a violation is proven by clear and convincing evidence, assess a civil penalty of up to ten thousand dollars ($10,000) per day against any person for each violation.007.02B The civil penalty assessed under these rules must not exceed two million dollars ($2,000,000) per year for each violation. For purposes of this rule, year shall mean calendar year which is the period from January 1 to December 31 inclusive.007.02C The Commission will have discretion in determining the appropriate amount of the civil penalty assessed for each violation. In determining the amount of the penalty, the Commission shall consider:007.02C1 The appropriateness of the penalty in light of the gravity of the violation; and,007.02C2 The good faith of the violator in attempting to achieve compliance after notification of the violation.007.03Initiation of Civil Penalty Proceedings Before the Commission:007.03A A civil penalty proceeding may be initiated by any person by the filing of a formal complaint or departmental complaint with the Executive Director or the issuance of an order to show cause. The complaint initiating a civil penalty proceeding must (1) consist of a written pleading signed by the complainant or his or her legal representative containing the names of the complainant and the alleged violator or violators; (2) set forth the date, facts, and nature of each act or omission upon which each charge of a violation is based; (3) specifically identify the particular statute, certificate, permit, rule, regulation, or order allegedly violated; (4) contain a prayer stating the type of relief, action, or order desired by the complainant; (5) inform the respondent that pursuant to Commission rules, failure to answer will be construed as an admission of the allegations in the complaint; and, (6) that upon failure to pay any civil penalty determined by the Commission, such civil penalty may be collected by civil action in the District Court of Lancaster County. 007.03A1 In the case of a formal complaint, a hearing fee may be assessed against the complainant in the amount established by the Commission and as provided by law for hearing fees. If the respondent is found to have committed the violation or violations named in the formal complaint, the hearing costs assessed, if any, will be refunded to the complainant. If the respondent is found to have committed the violation or violations named in the formal complaint, the respondent may be assessed the cost(s) of the hearing.007.03B Before a formal complaint filed pursuant to an alleged violation of sections 75-301 to 75-390 by anyone other than the Commission can proceed to a hearing, a copy of said complaint will be delivered to the Executive Director of the Commission. The Director has thirty (30) days to intervene in support of said complaint, intervene in opposition to said complaint, or issue a letter advising the complainant that the Commission has taken no position in the proceeding. In the event the Director takes no action after the thirty (30) day period has expired, the complainant may proceed to a hearing on the complaint no earlier than thirty (30) days after notice is served upon the respondent named in the complaint. Nothing contained herein will preclude the Commission from intervening as otherwise allowed under the rules of the Commission.007.03C When a complaint is filed with the Commission, wherein the respondent may be subject to a civil penalty under state law and these rules, the Commission will notify such respondent in writing (1) setting forth the date, facts, and nature of each act or omission upon which each charge of a violation is based; (2) specifically identifying the particular statute, certificate, permit, rule, regulation, or order allegedly violated; (3) that a hearing will be held and give notification of the time, date, and place of such hearing; (4) that, in addition to a civil penalty, the Commission may enforce additional penalties and relief as provided by law; (5) that pursuant to Commission rules, failure to answer will be construed as an admission of the allegations in the complaint. Failure to file an answer or to appear at the hearing allows the Commission to enter an order assessing a civil penalty as provided by law for the violation or violations alleged in the complaint, or the Commission may proceed with a hearing to receive evidence of the alleged violation or violations and may assess civil penalties as provided by law; and, (6) that upon failure to pay any civil penalty determined by the Commission, such civil penalty may be collected by civil action in the District Court of Lancaster County.007.03D A copy of the complaint described in 007.03A and the notice information specified by 007.03C will be sent by the Commission to the respondent pursuant to the Service and Notice provisions as contained in Commission rules.007.03E Supplemental pleadings filed by a party must be in writing and be filed with the Commission and distributed by him or her to all interested parties under a certificate of service at any time until five (5) days before the hearing date. Supplemental pleadings filed five (5) days or less prior to the hearing date may be allowed by the Hearing Officer upon a showing of good cause and undue surprise does not disadvantage other parties of record. A civil penalty proceeding will not be cumulative of all other remedies available under state law and the rules of the Commission. Nothing herein will be construed so as to preclude the Commission or any other party, person, or entity from seeking any remedy in law or equity not specifically provided for in this section.007.03F A complaint may be withdrawn by the party who filed the complaint without prejudice to refiling upon the same facts if the Commission approves the withdrawal as provided by these rules.007.04Answer:007.04A The respondent must file with the Commission a written answer in the manner required by these rules no later than twenty (20) days after the date on which notice is given.007.04B If the respondent fails to timely file an answer as required by this subsection, or fails to appear at the hearing, the Commission may enter an order which assesses a civil penalty as provided by law for the violation or violations alleged in the complaint, or the Commission may proceed with a hearing to receive evidence on the alleged violation or violations and the Commission may assess civil penalties or an administrative fine as provided by law.007.05Settlement Orders:007.05A A respondent may enter into a compromise settlement agreement and proposed final order prior to a hearing pursuant to section 75-157 which does not constitute an admission by the respondent of any alleged violation or violations contained in the civil penalty complaint. Such agreement and proposed final order must be signed by the respondent and all parties to the proceeding and must reflect that the respondent consents to the assessment of a specific civil penalty or administrative fine. Settlement of the matters raised by the complaint in a proposed final order containing a recommended penalty are subject to the approval of the Commission.007.05B If the respondent and all parties to the proceeding enter into a compromise settlement agreement and proposed final order, the settlement of the complaint may include a recommended penalty to the Commission. If a recommended penalty is included as part of the compromise settlement agreement and proposed final order, simultaneous with the filing of a compromise settlement agreement and proposed final order, the respondent must remit to the Commission a cashier's check or money order in the amount of the recommended penalty payable to the Treasurer of the State of Nebraska. These funds will be held in a contingent liability account until appropriately allocated upon final order. The compromise settlement agreement and proposed final order must be filed with the Commission by the Commission's counsel. If the Commission approves the agreement and proposed order, the civil penalty proceeding will cease. If the Commission does not approve the proposed order, a hearing on the civil penalty complaint must be held.007.06Post Order Requirements:007.06A On the issuance of a final order finding that the violation or violations have occurred, the Commission must inform the respondent or the respondent's legal representative no later than five (5) business days of the rendition of the order and of the amount of the penalty, if any.007.06B Within the thirty (30) day period immediately following the day on which the Commission's final order is mailed, the respondent who has not previously paid all the civil penalty ordered to be paid must pay the penalty in full by remitting a cashier's check, electronic transfer or money order to the Commission payable to the Treasurer of the State of Nebraska. The Commission will then promptly forward the cashier's check or the money order to the State Treasurer as provided by law.007.07Collection of Penalty in Lieu of Payment: A civil penalty assessed pursuant to these rules and unpaid will constitute a debt to the State of Nebraska which may be collected in the manner of a lien foreclosure or sued for and recovered in a proper form of action in the name of the state in the District Court of Lancaster County. Any civil penalty collected by the Commission pursuant to such judicial proceedings must be transmitted within thirty (30) days from receipt to the Treasurer of the State of Nebraska for deposit in the permanent school fund pursuant to section 75-158.291 Neb. Admin. Code, ch. 1, § 007
Adopted effective 4/21/2019