(a) The Commission shall use the point system described in this section to determine the amount of the penalty and, in the case of notices of violation, whether a mandatory penalty should be assessed as provided in §12.686(b) of this title (relating to When Penalty Will Be Assessed).
(b) Points shall be assigned as follows:
  (1) History of previous violations. The commission shall assign up to 30 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 such review or to appeal 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) each violation shall be counted without regard to whether it led to a civil penalty assessment;
  (2) Seriousness. The Commission shall assign up to 30 points based on the seriousness of the violation, as follows:
    (A) Probability of occurrence. The Commission shall assign up to 15 points based on the probability of the occurrence of the event which a violated standard is designed to prevent. Points shall be assessed according to the following schedule:
Attached Graphic     (B) extent of potential or actual damage. The Commission 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 Commission shall assign zero to seven points, depending on the duration and extent of the damage or impact; and
      (ii) if the damage or impact which the violated standard is designed to prevent would extend outside the coal exploration or permit area, the Commission shall assign eight to fifteen points, depending on the duration and extent of the damage or impact; and
    (C) Alternative. In the case of a violation of an administrative requirement, such as a requirement to keep records, the Commission shall, in lieu of subparagraphs (A) and (B) of this paragraph, assign up to 15 points for seriousness, based upon the extent to which enforcement is obstructed by the violation;
  (3) Negligence.
    (A) The Commission 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;
      (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 and the number of points to be assigned, the following definitions apply:
      (i) No negligence--An inadvertent violation which was unavoidable by the exercise of reasonable care;
      (ii) Negligence--The failure of a permittee to prevent the occurrence of any violation of his or her permit or any requirement of the Act or this chapter (relating to Coal Mining Regulations) due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the Act due to indifference, lack of diligence, or lack of reasonable care;
      (iii) A greater degree of fault than negligence--Reckless, knowing, or intentional conduct; and
    (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 that person establishes that they were acts of deliberate sabotage; and
  (4) Good faith in attempting to achieve compliance.
    (A) The Commission 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:
Attached Graphic     (B) The following definitions shall apply under subsection (b)(4)(A) of this section:
      (i) Rapid compliance--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) Normal compliance--The person to whom the notice or order was issued abated the violation within the time given for abatement; and
    (C) If the consideration of this criterion is impractical because of the length of the abatement period, the assessment may be made without considering this criterion and may be reassessed after the violation has been abated.

Source Note: The provisions of this §12.687 adopted to be effective April 7, 1997, 22 TexReg 3093.