81-546.

Transportation of gas; operation of pipeline facilities; violations; notice; response; order; failure to comply; penalty; considerations.

(1) Whenever the State Fire Marshal, after conducting an inspection or investigation, has determined with a reasonable degree of certainty that any person has violated or is violating any provision of subsection (1) of section 81-545 or any regulation under the Nebraska Natural Gas Pipeline Safety Act of 1969, the State Fire Marshal shall give notice of the determination of a probable violation to such person and provide such person with the basis for the determination, including all documentation or other evidence related to the inspection or investigation.

(2) Such person shall have sixty business days to respond to the notice of a probable violation by either (a) agreeing with the determination and providing any details on what has been or will be done to achieve compliance or (b) disputing the determination and providing documentation or evidence to support that such person should not be found in violation of such section or regulations.

(3) In response to an answer made pursuant to subsection (2) of this section, the State Fire Marshal shall review the information provided. The State Fire Marshal may request any additional information from such person as the State Fire Marshal may require in order to reach a conclusion pursuant to subdivisions (a) and (b) of this subsection. Such person shall have thirty business days to respond to each such request for additional information. After such review:

(a) If the State Fire Marshal concludes that such person was not or is not in violation or that such person has achieved or will achieve compliance to no longer be in violation of any provision of subsection (1) of section 81-545 or any regulation under the Nebraska Natural Gas Pipeline Safety Act of 1969, the State Fire Marshal shall issue a letter indicating settlement based on such compliance and close the matter; or

(b) If the State Fire Marshal concludes that such person has not or will not achieve compliance to no longer be in violation of any provision of subsection (1) of section 81-545 or any regulation under the Nebraska Natural Gas Pipeline Safety Act of 1969, the State Fire Marshal shall issue an order finding such person in violation and providing notice of the right to a hearing pursuant to subdivision (4)(a) of this section.

(4)(a) If the State Fire Marshal issues an order pursuant to subdivision (3)(b) of this section, such person may request a hearing. If such person:

(i) Fails to request a hearing within thirty business days after the date of the order, the State Fire Marshal shall issue a final order finding such person in violation; or

(ii) Requests a hearing, the hearing officer shall conduct the proceeding in accordance with the Administrative Procedure Act. After the hearing, the hearing officer shall prepare findings of fact and conclusions of law. The State Fire Marshal shall issue a final order based on such findings of fact and conclusions of law.

(b) A final order issued pursuant to subdivision (4)(a)(i) or (ii) of this section may be appealed. The appeal shall be in accordance with the Administrative Procedure Act.

(5) After issuance of a final order under subdivision (4)(a)(i) or (ii) of this section and if no appeal is timely filed, the State Fire Marshal may request the Attorney General to bring an action under section 81-547 in the district court for the county in which the defendant's principal place of business is located.

(6)(a) Except as provided in subdivision (b) of this subsection, the district court may impose a civil penalty of not to exceed ten thousand dollars for each violation for each day that such violation persists, except that the maximum civil penalty shall not exceed five hundred thousand dollars for any related series of violations.

(b) For a violation of the federal safety standards established by the United States Secretary of Transportation pursuant to the federal Natural Gas Pipeline Safety Act of 1968 that have been incorporated in safety standards established by the State Fire Marshal under section 81-543, the district court may impose a civil penalty of up to two hundred thousand dollars for each violation for each day that such violation persists, except that the maximum civil penalty shall not exceed two million dollars for any related series of violations.

(7) No person shall be subject to civil penalties under both section 81-547 and the One-Call Notification System Act for conduct which may give rise to a violation under both the Nebraska Natural Gas Pipeline Safety Act of 1969 and the One-Call Notification System Act, unless that conduct is reckless or is done with willful disregard for the safety of others or their property. In the absence of recklessness or willful disregard for the safety of others or their property, such conduct shall be enforced primarily in accordance with section 76-2325.

(8) In determining the amount of a penalty imposed under subsection (6) of this section, the court shall consider the appropriateness of such penalty to the size of the business of the person charged, the gravity of the violation, the amount of harm or damage resulting from the violation, prior offenses and compliance history of the person charged, the good faith of the person charged in attempting to achieve compliance, remedial actions taken by the person charged, and other such matters as justice may require. The amount of such penalty, when finally determined, may be deducted from any sums owing by the State of Nebraska to the person charged.