A. Approval Required
1. The Commission must approve in a deliberative session the disposition of every alleged violation that requires payment of an administrative penalty or other remedial action.
2. The Commission's deliberation and approval by order of the imposition of an administrative penalty or other remedial action satisfies the statutory requirement for an adjudicatory proceeding in 23 M.R.S.A. §3360-A(6-C).
B. Penalty Assessment. The Commission may impose an administrative penalty on an excavator or member operator that is found by the Commission in a proceeding under Section 7 to have committed a violation included in Section 8(C) below.
C. Violations. The Commission may impose an administrative penalty for any of the following violations:
1. Excavation that does not comply with the requirements of Section 4(A), Subsection 4(B)(1)(a) through 4(B)(1)(d), or Subsection 4(C)(2), except to the extent the excavator is exempt from the provisions of these subsections;
2. Excavation done in a reckless or negligent manner that poses a threat to an underground facility;
3. Failure of a member operator to comply with the requirements of Subsection 6(B)(2)(a) or 6(B)(2)(b), except to the extent the member operator is exempt from the provisions of the subsection;
4. Marking by a member operator of the location of an underground facility in a reckless or negligent manner; and
5. Failure of an excavator to comply with the exemption requirements and procedures of Subsections 4(F)(1), (2), or (3).
D. Penalty Level
1. Maximum penalty level
a. First damage prevention incident within 12 month period. Except as specified in Subsection 8(E), the administrative penalty for each violation associated with the first damage prevention incident shall not exceed $1,000 per violation .
b. Subsequent damage prevention incidents. The administrative penalty shall not exceed $10,000 per violation if during the 12 months preceding the date of the violation the excavator or member operator has been found in violation of this rule.
2. Conditions. In determining the amount of an administrative penalty under this section, the commission shall take into account:
a. Record of the violator, including, to the extent applicable, the number of successful excavations undertaken by the violator or the number of locations successfully marked by the violator during the prior 12 months;
b. Whether the violation resulted in death or personal injury, the degree to which it posed a risk of death or personal injury, and the degree to which it caused or posed a risk of public inconvenience;
c. Amount of property damage caused by the violation;
d. Degree of compliance with other provisions of this rule;
e. Good faith attempts to comply with the violated provision of this rule;
f. Steps to ensure future compliance; and
g. Amount necessary to deter future violation.
3. Other consequences of violation. Administrative penalties imposed pursuant to these rules are in addition to any other remedies or forfeitures provided by law and any liability that may result from the act or omission constituting the violation.
E. Training Requirements. In addition to other actions taken by the Commission, the Commission may require an excavator or member operator who is found pursuant to Section 7 to have violated this rule or 23 M.R.S.A. §3360-A to participate, at the expense of the violator, in an educational program developed and conducted by the Dig Safe System.