N.M. Admin. Code § 19.8.31.3101

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.31.3101 - POINT SYSTEM FOR PENALTIES

A. The director shall use the point system described in this section to determine the amount of the penalty, and, in the cases of notices of violation, whether a mandatory penalty should be assessed as provided in 19.8.31.3100 NMAC.

B. Points shall be assigned as follows.

(1) History of previous violations. The director shall assign up to 25 points based on the history of previous violations. One point shall be assigned for each past violation contained in a notice of violation. Five points shall be assigned for each violation (but not a condition or practice) contained in a cessation order. The history of previous violations, for the purpose of assigning points, shall be determined and the points assigned with respect to a particular coal exploration or surface coal mining operation. Points shall be assigned as follows:

(a) a violation shall not be counted, if the notice or order is the subject of pending administrative or judicial review or if the time to request any administrative or judicial decision has not expired, and thereafter it shall be counted for only one year;

(b) no violation for which the notice or order has been vacated shall be counted; and

(c) a violation, not resulting in a civil penalty assessment shall not receive more than 50% of the points than would have been assigned if the violation had resulted in an assessment.

(2) Seriousness. The director shall assign up to 25 points based on the seriousness of the violation, as follows:

(a) Foreseeability of occurrence. The director shall assign up to 10 points based on the foreseeability of the occurrence of the event which a violated standard is designed to prevent. Points shall be assessed according to the following schedule:

Foreseeability of Occurrence Points

None 0

Insignificant 1-2

Unlikely 3-5

Likely 6-9

Clearly 10

(b) Extent of potential or actual damage. The director shall assign up to 15 points, based on the extent of the potential or actual damage, in terms of area and impact on the public or environment, as follows:

(i) if the damage or impact which the violated standard is designed to prevent would remain within the coal exploration or permit area, the director shall assign zero to seven points, depending on the duration and extent of the damage or impact;

(ii) if the damage or impact which the violated standard is designed to prevent would extend outside the coal exploration or permit area, the director shall assign eight to fifteen points, depending on the duration and extent of the damage or impact.

(c) Alternative. In the case of a violation of an administrative requirement, such as a requirement to keep records, the director shall, in lieu of Subparagraphs (a) and (b) of Paragraph (2) of Subsection B of 19.8.31.3101 NMAC, assign up to 10 points for seriousness, based upon the extent to which enforcement is obstructed by the violation.

(3) Negligence.

(a) The director shall assign up to 25 points based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission. Points shall be assessed as follows:

(i) a violation which occurs through no negligence shall be assigned no penalty points for negligence;

(ii) a violation which is caused by negligence shall be assigned 12 points or less, depending on the degree of negligence; or

(iii) a violation which occurs through a greater degree of fault than negligence shall be assigned 13 to 25 points, depending on the degree of fault.

(b) In determining the degree of negligence involved in a violation the number of points to be assigned, the following definitions apply:

(i) no negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care;

(ii) negligence means the failure of a permittee to prevent the occurrence of any violation of his permit or any requirement of the act or 19.8 NMAC due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit, the act or 19.8 NMAC due to indifference, lack of diligence, or lack of reasonable care;

(iii) a greater degree of fault than negligence means reckless, knowing, or intentional conduct.

(c) In calculating points to be assigned for negligence, the acts of all persons working on the coal exploration or surface coal mining and reclamation site shall be attributed to the person to whom the notice or order was issued unless he establishes, by clear and convincing evidence, that the acts were not within the scope of employment or agency.

(4) Good faith in attempting to achieve compliance.

(a) The director shall add points based on the degree of good faith of the person to whom the notice or order was issued in attempting to achieve rapid compliance after notification of the violation. Points shall be assigned as follows:

Degree of Good Faith Points

Rapid compliance -1 to -15

Use of additional equipment or labor -1 to -25

Normal compliance ________

(Total not to exceed -25)

(b) The following definitions shall apply under Subparagraph (a) of Paragraph (4) of Subsection B of 19.8.31.3101 NMAC:

(i) rapid compliance means that the person to whom the notice or order was issued took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement;

(ii) use of additional equipment or labor means rapid compliance and the employment of equipment and/or labor in amounts and at a cost greater than would normally be employed;

(iii) normal compliance means the person to whom the notice or order was issued abated the violation within the time given for abatement.

(c) If the consideration of these criteria is impractical because of the length of the abatement period, the assessment may be made without considering this criterion and shall be reassessed after the violation has been abated.

N.M. Admin. Code § 19.8.31.3101

11-29-97; 19.8.31.3101 NMAC - Rn, 19 NMAC 8.2.31.3101, 9-29-2000