N.M. Admin. Code § 19.11.3.15 - CIVIL PENALTIES AND HEARINGS

A. If a person violates the provisions of the Act or the rules promulgated pursuant to the Act or an order or permit issued pursuant to the Act, the division may assess the person a civil penalty of $2,500 for each violation. In the case of a continuing violation, each day of violation shall constitute a separate violation.

B. To begin an action for a civil penalty, the division will issue a notice of violation. The notice of violation shall:

(1) identify the person against whom the order is sought;

(2) identify the provision of the Act or the provision of the rule, permit or order issued pursuant to the Act allegedly violated;

(3) provide a general description of the facts supporting the allegations;

(4) state the sanction or sanctions sought; and

(5) provide the date, time and place of the public hearing.

C. The division shall provide notice by posting notice on the division's website and by delivering the notice of violation to the person against whom the order is sought by certified mail, return receipt requested to the person's last known address, and delivering notice by first class United States mail or e-mail to each person who has requested in writing to be notified of such hearings, and publishing notice in a newspaper of general circulation in the county where the violation occurred or in a newspaper of general circulation in the state.

D. The parties to the public hearing shall include the division and the person against whom the order is sought.

E. In determining the amount of the civil penalty, the division shall consider the person's history of previous violations of the Act or the Geothermal Resources Act, Section 19-13-1 NMSA 1978 (1967, as amended) or the rules, permits or orders issued pursuant to those acts, the seriousness of the violation, any hazard to the health or safety of the public or the environment and the demonstrated good faith of the person.

F. The division may assess a civil penalty only after a public hearing is held or the person has entered an agreed compliance order that waives the person's opportunity for a public hearing.

G. A public hearing to assess a civil penalty shall be held pursuant to 19.11.3.11 through 19.11.3.14 NMAC.

H. The director may enter an agreed compliance order with the permittee against whom a civil penalty is sought to resolve alleged violations of any provision of the Act or any provision of any rule, permit or order issued pursuant to the Act. The director may enter an agreed compliance order prior to or after the filing of a notice of violation. An agreed compliance order shall have the same force and effect as an order issued after a public hearing.

I. After the public hearing is held, or the person has failed to participate in the public hearing, the division shall issue an order requiring that the person pay any civil penalty imposed.

J. If the person fails to pay the civil penalty as ordered by the division, the division may file a civil suit to collect the penalty in the district court of the county in which the defendant resides or in which any defendant resides if there is more than one defendant or in the district court of any county in which the violation occurred.

Notes

N.M. Admin. Code § 19.11.3.15

Adopted by New Mexico Register, Volume XXIX, Issue 04, February 27, 2018, eff. 2/27/2018