N.M. Code R. § 19.10.11.1109 – Waiver of Use of Formula to Determine Penalty

A. The Director may waive the use of the formula contained in this Part to set the penalty, if he determines that, taking into account factors present in the particular case, the penalty is unjustified. However, the Director shall not waive the use of the formula or reduce the proposed penalty simply because reduction in the proposed penalty would provide more resources to abate violations of the Act, 19.10 NMAC, the permit or an order. In no event shall the Director assess or accept a penalty of less than the economic benefit realized as a result of a failure to comply. The basis of every waiver shall be fully explained and documented in the records of the case.
B. If the Director waives the use of the formula, the criteria set forth in Section 69-36-17 of the Act shall be used to determine the appropriate penalty. When the Director elects to waive the use of the formula, a written explanation of the basis for the assessment made shall be provided to the permittee.
[7-12-94, 2-15-96; 19.10.11.1109 NMAC – Rn, 19 NMAC 10.2.11.1109, 05-15-2001]