SECTION 460:20-61-8. Waiver of use of formula to determine civil penalty

(a)   The Director, upon his own initiative or upon written request received within 15 days of issuance of a notice of violation or a cessation order, may waive the use of the formula contained in Section 460:20-61-5 to set the civil penalty, if he or she determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. 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, these Regulations, the state program, or any condition of any permit or exploration approval. The basis for 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 or she shall use the criteria set forth in Section 460:20-61-5 to determine the appropriate penalty. When the Department has elected to waive the use of the formula, he or she shall give a written explanation of the basis for the assessment made to the person whom the notice or order was issued.