N.M. Admin. Code § 19.10.11.1106 - POINT SYSTEM FOR PENALTIES

A. 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. Five points shall be assigned for each violation 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 mining, exploration or reclamation operation activity. Points shall be assigned as follows:

(1) a violation shall not be counted if the violation is the subject of pending administrative or judicial review, or if the time to request such review or to appeal any administrative or judicial decision has not expired. Thereafter, it shall be counted for only 12 months following the date of final disposition of the violation;

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

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

B. Seriousness The Director shall assign up to 25 points based on the seriousness of the violation, as follows:

(1) 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

(a) Not foreseeable 0

(b) Unlikely 1-5

(c) Likely 6-9

(d) Almost certain 10

(2) 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:

(a) If the damage or impact which the violated Section is to prevent remains within the permit area, the Director shall assign zero to seven points, depending on the duration and extent of the damage or impact.

(b) If the damage or impact which the violated Section is to prevent extends outside the permit area, the Director shall assign eight to fifteen points, depending on the duration and extent of the damage or impact.

(3) Alternative. In the case of a violation of an administrative requirement such as a requirement to keep records or submit reports, the Director shall, in lieu of subparagraphs a. and b. above, assign up to 10 points for seriousness.

C. Negligence

(1) The Director shall assign up to 25 points based on the degree of fault of the permittee in causing or failing to correct the condition or practice which led to the notice or order, either through act or omission. Points shall be assessed as follows:

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

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

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

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

(a) No negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care.

(b) Negligence means the failure of a permittee to prevent the occurrence of any violation because of indifference, lack of diligence or lack of reasonable care, or the failure to abate any violation because of indifference, lack of diligence or lack of reasonable care.

(c) A greater degree of fault than negligence means reckless, willful, or intentional conduct.

(3) In calculating points to be assigned for negligence, the acts of all persons working on the permit area shall be attributed to the permittee.

D. Good faith in attempting to achieve compliance

(1) The Director may reduce points based on the degree of good faith of the permittee in attempting to achieve rapid compliance after notification of the violation. Points shall be assigned as follows:

Degree of Good Faith Points

(a) Rapid compliance -1 to -15

(b) Use of additional equipment or labor -1 to -25

(c) Normal compliance 0

(total not to exceed -25)

(2) The following definitions shall apply for Paragraph 1 of Subsection D of 19.10.11.1106 NMAC:

(a) Rapid compliance means that the permittee took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement.

(b) 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.

(c) Normal compliance means the permittee abated the violation within the time given for abatement.

Notes

N.M. Admin. Code § 19.10.11.1106

7-12-94, 2-15-96; 19.10.11.1106 NMAC - Rn, 19 NMAC 10.2.11.1106, 05-15-2001