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4 <br /> <br />• <br />WELBORN, DUFFORD, BROWN g TOOLEY <br />Colorado Mined Land <br />Reclamation Division <br />May 8, 1986 <br />Page Three <br />In summary, the mining at issue in D-Pit (1) complied <br />with the sequence described in the permit, (2) did not disturb <br />area beyond that approved for disturbance by the permit, (3) <br />did not require any increased bond, and (4) was in accordance <br />with the technical revision which was acceptable as to D-Pit <br />more than a month before the NOV was issued. Thus, there was <br />no obstruction of enforcement involved. Accordingly, no <br />assessment should be made in this category. <br />3. Fault <br />With regard to fault, any assessment should be at the <br />minimum of the range for ordinary negligence ($250), at most. <br />Assuming there was a violation, it can be attributed in part to <br />the two-year period from submission of Trapper's permanent <br />program permit application early in 1981 to the final approval <br />at the very end of 1982. As required, that application <br />contained detailed plans for mining in 1981-85, but two of <br />these years had already passed when the five-year permit term <br />ending in 1987 was approved. In addition, the Division's <br />Proposed Decision of November 23, 1982, is somewhat ambiguous <br />with regard to the mining that was approved for the last two <br />years of the permit term. It states that "a complete mining <br />and reclamation plan for the area to be disturbed by the <br />extraction of coal during the five-year permit term [ending on <br />December 31, 1987]" is contained in the application, but not <br />for succeeding terms. While it required further approval prior <br />to mining "not specifically identified in this permit <br />application for this five-year term," the variance between the <br />1982-87 permit term and the approved application created <br />ambiguity as to the mining which was approved for the later <br />years. Trapper sought to clarify this issue with its technical <br />revision, but that did not remove the ambiguity prior to the <br />revision approval. To the extent that Trapper's mining was not <br />approved, this was a matter of inadvertence at most. <br />4. Good Faith <br />A substantial degree of credit for good faith should <br />be allowed. The NOV required immediate cessation of mining and <br />approval of the pending technical revision by June 6, 1986. <br />Trapper did stop all mining operations in the area at issue <br />immediately. It put extraordinary efforts into obtaining the <br />revision expeditiously by discussing the matter with the <br />Division by phone late on April 23 and by meeting in the <br />