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tvao~sa tau 18:18 F,LY • • fp~oto should increase the monitoring and compliance period needed before fmancial assurance release is considered. The DMG is proposing to the MLRB that no financial assurance increase is warranted. This appears to be based on DMG's view that the current $6.1 million bond is more than ample to cover such activities. That may be true. However, the possible fact that BMRI may be able to request bond release for other aspecu of its reclamation plan that it ntay have completed, does not mean that the MLRB can allow these new facilities to be un-bonded. IFDMG is correct in saying that there is excess in the bond right now, ndthing would prevent BMRI from requesting that portion of the bond back. While it is hoped (that the DMG would azgue that it could keep the excess to cover the new faciliries, without an accounting of the costs, liabilities, etc., of the new facilities, the DMG and ivfl.RB are without suf;f icient infoanation to make that assumption. Even if BMRI would agree to switching the excess to cover the new facilities, no one has any idea of the short and long term costs involved. The proper course is to determine the new financial liabilities that thc sitC now has and raise the bond accordingly. If BMRI believes that the existing bond is too high tp cover the rest of the site, then it can request bond release at a future date. This way, the state is nbt caught short with a new liability that has yet to be calculated. IV. Civil Penalties Cannot Be Waived If a Violation is Found Based on any reading of the facts, BMRI is currently in violation of its Iv>ILRB permit. In fact, such violation appears to have occuaed daily since at least July of 1998 whkn the data results exposed the ground water protection level exceedences. Indeed, the DMG's De ember 1, 1998,1etter to BMRI admits that: "The Division believes this [ground water exce~dences] is a violation of a permit condition for groundwater pursuant to 34-32-124." ~p C~'` However, the DMG "Presentation Form" submitted to the MLRB proposi:s that the civil penalties under 34-32-124 be `waived." Such a waiver is not permissible under ~he Mined Land Act_ CRS 34-32-124 (emphasis added) expressly states that: Any person who violates any provision of any permit issued under this article shall be subject to a civil penalty of not less than one hundred dollars per day nor !note than one thousand dollars per day for each day during which such violation occur. Thus, if a violation is found, at least the minimum civil penalty must be levied~$ ainst the permit violator. Although previous MLRB practice may have been to ignore the manda>lory effect of [his provision of the Mined Land Act, such avoidance of the law in the past does not,~ustify avoidance in the future. In this case, such a penalty must be calculated from the beginning of the Holation -July 8, 1998, at the eazliest. However, it is almost certain that ground water permit compliance levels were being violated prior to 7uly 8u' but after the previous sampling date of Apri119, 1998.