PREVAILED Roll Call No. _______
FAILED Ayes _______
WITHDRAWN Noes _______
RULED OUT OF ORDER
[
HOUSE MOTION ____
]
MR. SPEAKER:
I move that Engrossed Senate Bill 251 be amended to read as follows:
SOURCE: Page 1, line 1; (11)MO025107.1. -->
Page 1, between the enacting clause and line 1, begin a new
paragraph and insert:
SOURCE: IC 4-6-3-2; (11)MO025107.1. -->
"SECTION 1. IC 4-6-3-2, AS AMENDED BY P.L.111-2009,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2011]: Sec. 2. (a) The attorney general shall have charge of
and direct the prosecution of all civil actions that are brought in the
name of the state of Indiana or any state agency.
(b) In no instance under this section shall the state or a state agency
be required to file a bond.
(c) This section does not affect the authority of prosecuting
attorneys to prosecute civil actions.
(d) This section does not affect the authority of the inspector general
to prosecute a civil action under IC 4-2-7-6 for the recovery of funds
misappropriated, diverted, missing, or unlawfully gained.
(e) The attorney general may bring an action to collect unpaid
registration fees owed by a commercial dog broker or a commercial
dog breeder under IC 15-21.
(f) This section does not affect the authority of the Indiana
utility regulatory commission to, at the commission's option, act
independently under IC 8-1-2-115 to recover or collect a forfeiture
or penalty.
SOURCE: IC 4-6-5-3; (11)MO025107.2. -->
SECTION 2. IC 4-6-5-3 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 3.
(a) No agency, except as
provided in this chapter, shall have any right to name, appoint, employ,
or hire any attorney or special or general counsel to represent it or
perform any legal service in behalf of such agency and the state without
the written consent of the attorney general.
(b) This section does not affect the authority of the Indiana
utility regulatory commission to, at the commission's option, act
independently under IC 8-1-2-115 to recover or collect a forfeiture
or penalty.
SOURCE: IC 8-1-1-11; (11)MO025107.3. -->
SECTION 3. IC 8-1-1-11 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2011]: Sec. 11. Subject to IC 8-1-2-115(b), the
commission is authorized to employ such counsel or attorneys,
engineers, administrative law judges, experts, clerks, accountants and
other assistants as it may deem necessary, at such rates of
compensation as it may determine upon, subject, however, to the
approval of the governor.".
SOURCE: Page 2, line 30; (11)MO025107.2. -->
Page 2, between lines 30 and 31, begin a new paragraph and insert:
SOURCE: IC 8-1-2-109; (11)MO025107.5. -->
"SECTION 5. IC 8-1-2-109 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 109. (a) This section
does not apply to:
(1) a public utility that owns, operates, manages, or controls
any plant or equipment in Indiana for the production,
transmission, delivery, or furnishing of heat, light, or power;
or
(2) a department of public utilities created under IC 8-1-11.1.
(b) A public utility that violates this chapter, or fails to perform any
duty enjoined upon it, for which a penalty is not otherwise provided,
commits a Class B infraction.
SOURCE: IC 8-1-2-109.1; (11)MO025107.6. -->
SECTION 6. IC 8-1-2-109.1 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec. 109.1. (a) This section does not apply when a public
utility's violation or failure to comply under subsection (d) is
caused by circumstances beyond the control of the public utility,
including any of the following:
(1) Customer provided equipment.
(2) A negligent act or an omission of a customer.
(3) An unavoidable casualty.
(4) An act of God.
(b) As used in this section, "public utility" means every
corporation, company, partnership, limited liability company,
individual, or association of individuals, or their lessees, trustees,
or receivers appointed by a court, that may own, operate, manage,
or control any plant or equipment in Indiana for the production,
transmission, delivery, or furnishing of heat, light, or power. The
term includes a department of public utilities created under
IC 8-1-11.1. The term does not include:
(1) a municipality or political subdivision;
(2) a rural electric membership corporation organized or
operating under IC 8-1-13; or
(3) a corporation organized under IC 23-17-1 that is an
electric cooperative and that has at least one (1) member that
is a corporation organized under IC 8-1-13.
(c) A public utility and every officer of a public utility shall
comply with every order or rule of the commission made under this
chapter.
(d) Except as otherwise provided in this chapter, if the
commission finds, after notice and hearing, that a public utility has
violated this chapter or failed after due notice to comply with a
standard of service established by commission rule or a rate or
service requirement of a final and unappealable order of the
commission, the commission may order the public utility to pay a
civil penalty as follows:
(1) For a violation or failure to comply that involves fuel cost
charges granted in a hearing under section 42 of this chapter,
an amount equal to not more than two percent (2%) of the
total fuel cost charges granted in the hearing.
(2) For all other violations or failures, an amount of not more
than five thousand dollars ($5,000) for each violation or
failure to comply.
(e) Notwithstanding subsection (d), if the commission finds after
notice and hearing that the public utility's violation or failure to
comply demonstrates, by a continuing pattern of conduct, a willful
disregard by the public utility of the public utility's obligation to
remedy the violation or a willful failure to comply, the commission
may impose an additional civil penalty of not more than ten
thousand dollars ($10,000) for each violation or failure to comply.
(f) The commission shall consider the following when
determining the appropriateness of the imposition or amount of a
civil penalty:
(1) The size of the public utility.
(2) The gravity of the violation or failure to comply.
(3) The good faith of the public utility in attempting to:
(A) remedy the violation; or
(B) achieve compliance after receiving notification of the
violation or failure to comply.
(4) The effect of the civil penalty on the public utility's
financial ability to provide adequate and reliable service.
(5) If the public utility is a nonprofit company:
(A) the effect of the penalty on the company's members
and their capitalization of the company; and
(B) whether the act or omission causing the violation or
failure to comply was approved or requested by the
company's members.
In the order imposing the civil penalty, the commission shall make
specific findings with respect to the factors described in
subdivisions (1) through (5).
(g) A public utility may not be subject to both a civil penalty
under this section and a negotiated penalty under a commission
approved settlement agreement for the same violation or failure to
comply. If the commission has approved a settlement agreement
that includes penalties or remedies for noncompliance with specific
provisions of the settlement agreement, the penalties provided in
this section do not apply to those instances of noncompliance
during the life of the settlement agreement.
(h) Notwithstanding section 112 of this chapter, the civil
penalties provided for in this section for each violation or failure
to comply by a public utility may not be multiplied or increased
because of the number of customers affected or the length of time
service is affected. Only one (1) violation or failure to comply per
day may be attributed to a public utility as a result of a particular
condition, system outage, storm, act, omission, event, decision, or
other cause occurring on that day.
(i) Civil penalties recovered under this section shall be paid into
the state general fund.
(j) A public utility may not include in the public utility's rate
base, and the commission shall not consider in a rate proceeding
involving the rates of the public utility, the amount of any penalty
or fine imposed on the public utility under this section, any other
law, or a rule or regulation of the commission.
(k) Upon the motion of a public utility, the commission shall stay
the effect or enforcement of an order under this section pending an
appeal, if the public utility posts a bond that complies with Rule 18
of the Indiana Rules of Appellate Procedure.
SOURCE: IC 8-1-2-115; (11)MO025107.7. -->
SECTION 7. IC 8-1-2-115 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 115.
(a) The
commission shall inquire into any neglect or violation of the statutes of
this state or the ordinances of any city or town by any public utility
doing business therein, or by the officers, agents, or employees thereof,
or by any person operating the plant of any public utility, and shall
have the power, and it shall be
its the commission's duty, to enforce
the provisions of this chapter, as well as all other laws, relating to
public utilities. Any forfeiture or penalty provided in this chapter shall
be recovered, and suit therein
shall be brought
by the commission or,
at the commission's option, by the attorney general in the name of
the state of Indiana in
the circuit or superior court where the public
utility has its principal place of business. a court that has jurisdiction.
Complaint for the collection of any such forfeiture may be made by the
commission or any member thereof, and, when so made, the action so
commenced shall be prosecuted by the
commission or, at the
commission's option, by the attorney general.
counsel.
(b) If the commission acts independently of the attorney general
under subsection (a) to bring a suit to recover or collect a
forfeiture or penalty provided in this chapter, the commission may,
subject to the approval of the governor and the budget agency,
contract with one (1) or more attorneys who are not members of
the commission's regular staff to prosecute, or assist the
commission in prosecuting, the suit. An attorney contracted by the
commission under this section shall be employed:
(1) at the salary; and
(2) for the length of time;
approved by the governor and the budget agency for the particular
case.".
Renumber all SECTIONS consecutively.
(Reference is to ESB 251 as reprinted April 15, 2011.)
________________________________________
MO025107/DI 103 2011