2019-10-11_ENFORCEMENT - M1996076

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51. The civil penalties assessed were excessive under the circumstances presented, including the inability of Fontanari to present the defense case, thereby heightening the severe nature of the due process violation. 52. A bond increase was not originally on the enforcement agenda. Just days prior to the hearing, Division sent Fontanari's son-in-law, Mr. Grosse, a supplemental document packet containing Division's rationale for a major performance bond increase, attaching dozens of pages of calculations and estimates. (Fontanari does not receive a mail; instead, a mails are printed and manually relayed by Grosse). The bond increase was then proposed by Division and passed by the Board; Fontanari was surprised by the presentation and the increase, and had no substantive chance to respond or to challenge the increase. SPECIAL REASON FOR RE-CONSIDERATION AS TO BOND INCREASE 53. There was insufficient (or, no) time to forward the estimates for professional evaluation of the calculations and estimates by Division, no time to review them, and no chance to prepare or present contrary evidence or expert opinion concerning the reclamation cost estimates. 54. Construction Materials Rule 4.2.1(2) prescribes the method and procedure for increasing the financial warranty. The Office or Board may review the adequacy of the warranty at any time. Operator has sixty days within which to post additional warranty. If Operator disagrees, the Office shall schedule the matter for a hearing before the Board. 55. Here, the increase notice was issued by Division; although not on the Board agenda, an increase was part of the proposed Order urged by Division, prior to Operator having a chance to evaluate the proposed increase, to disagree with the proposed increase, or to prepare expert testimony to challenge the increase in a hearing. The method used to increase the financial 10