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~ ~, <br />Based on the fact that NOV's C-96-007 and C-96-008 and CO C-96-009 were not, and will <br />not be, abated, an "Order to Show Cause Why Permit Should Not Be Suspended or <br />Revoked " (Order) (copy attached) was issued for failure to abate the NOV's and CO. <br />There is no pattern of violations in this case. Rule 5.03.5(4)(c) requires that, when a <br />hearing is held regarding a Show Cause Order, the Board shall issue a written decision as <br />to whether or not a permit will be suspended or revoked. <br />The operator has indicated its inability to comply any further and is not contesting the <br />permit revocation. We recommend that the Twin Pines No. 2, Permit No. C-83-058, be <br />revoked. <br />Bond Forfeiture <br />Rule 3.04.1(1) of the Coal Regulations states that "the Board shall declare all or an <br />appropriate part of a performance bond for any permit as forfeited if the Board determines <br />that any of the following circumstances exist:" <br />One of the circumstances is specified at Rule 3.04.1(1)(c}, which states: "The permit has <br />been suspended or revoked, and neither the permittee nor the surety has assumed liability <br />for completion of the reclamation work under a compliance schedule approved under <br />3.04.1(2)." <br />As discussed above, the permittee has asked that the bond be forfeited. The bond for this <br />site is a certificate of deposit and no surety is involved. The bond is adequate to ensure <br />proper reclamation. The site is stable, and there is no imminent harm situation. We <br />recommend permit revocation and bond forfeiture, so that we may expedite site reclamation. <br />Civil Penalty Assessment <br />We are requesting that the Board consider substantial relief from civil penalty assessment <br />in this case. Typically, civil penalties would be levied by the Division following the issuance <br />of the NOV and CO. This step has not yet occurred. However, in the interest of expediting <br />a final resolution in this case, we are requesting that the Board consider the matter of civil <br />penalty assessment during this hearing. <br />It is our opinion that Twin Pines has complied to the best of its abilities and available <br />means. Twin Pines has conducted reclamation to significantly reduce the bond liability, but <br />is unable to proceed any further. Twin Pines has maintained the site to eliminate the <br />hazards associated with the portals, and has maintained the drainage control system. <br />Rule 5.03.7(4) states that "unless caused by lack of diligence, inability to comply may be <br />considered only in mitigation of the amount of civil penalty under 5.04, and of the duration <br />of the suspension of a permit under 5.03.3(3)(b) or 5.03.5(4)(c):' It is our opinion that Twin <br />Pines has acted diligently, but that it has reached a point where it is no longer able to <br />comply. Not only would a high civil penalty serve no purpose other than a punitive one in <br />this case, it may also force the operator into bankruptcy, which would interfere with the <br />