(a) The Director of the Surface Mining and Reclamation Division, 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 §12.687 of this title (relating to Point System for Penalties) 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, he 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, this chapter (relating to Coal Mining Regulations), 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 of the Surface Mining and Reclamation Division waives the use of the formula, he or she shall use the criteria set forth in §12.687(b) of this title (relating to Point System for Penalties) to determine the appropriate penalty. When the Director of the Surface Mining and Reclamation Division 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 to whom the notice or order was issued.

Source Note: The provisions of this §12.690 adopted to be effective April 7, 1997, 22 TexReg 3093.