N.M. Code R. § 19.8.31.3104 – Waiver of Use of Formula to Determine Civil Penalty

A. The director, upon his own initiative or upon written request received with 15 days of service of a notice of civil penalty assessment, may waive the use of the formula contained in 19.8.31.3101 NMAC to set the civil penalty, if he determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjustified. However, the director shall not waive the use of the formula or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the act, 19.8 NMAC or any conditions of any permit or exploration approval. 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, he shall use the criteria set forth in Subsection A of Section 69-25A-22 NMSA 1978 of the act, to determine the appropriate penalty. When the director has elected to waive the use of the formula, he shall give a written explanation of the basis for the assessment made to the person to whom the notice or order was issued.
[11-29-97; 19.8.31.3104 NMAC - Rn, 19 NMAC 8.2.31.3104, 9-29-2000]