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2019) impossible. Any concerns or reservations which might have been <br /> expressed by Division on May 21, 2019 would have placed CMC in violation, <br /> whether or not they were substantial, and whether or not CMC had <br /> responded adequately to the Division. (As one Board member correctly noted, <br /> a permittee is in no position to force Division approval, or to force Division to <br /> have no further concerns or comments on permittee submittals). <br /> 8. But, Division understood this timing issue and indicated <br /> approval for an extension request by CMC, clearly and in writing. CMC <br /> complied, and continued working on its Fourth Adequacy Response. <br /> 9. Thus, the Board was unaware that CMC was caught in a <br /> procedural trap not of its own making; CMC, for its part, had no reason to <br /> believe that it would be incurring civil penalties, much less maximum <br /> penalties, for non-compliance, having timely submitted the extension request, <br /> at the urging of Division. The cessation of processing on June 12, 2019 made <br /> compliance impossible. <br /> 10. Civil penalties are appropriate to punish and to deter non- <br /> compliance with permit conditions and Orders of the Board. <br /> 11. Here, far from wishing to be non-compliant, CMC continued to <br /> work on its 4th Adequacy Response believing that Division had offered an <br /> extension, which it would support, to allow CMC to respond to its May 21st 4th <br /> Adequacy Letter. <br /> 12. For the reasons stated in the Motion, the imposition of civil <br /> penalties for non-compliance with the Board's Order are not appropriate. <br /> 13. In the alternative, civil penalties should be reduced in amount <br /> and for a time period to reflect, at worst, a procedural mis-understanding <br /> concerning Divisions commitment to support a 30-day extension and removal <br /> of this matter from the enforcement agenda. <br /> 14. In any of assessment of civil penalties, the precise conduct being <br /> punished and deterred should be clear from the record. Here, there is no <br /> relationship between the civil penalty being assessed and any particular <br /> conduct or omission of CMC. The Board, in accord with the governing statute <br /> and common sense, should eliminate or reduced the civil penalties assessed. <br /> 3 <br />