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Seriousness <br />Mr. Koehler objected to the proposed serious penalty. He felt the monitoring that was done <br />provided an accurete representation of the mining impacts. Data was collected in active <br />mining areas. Data omissions were from those parts of the permit area where there had been <br />no recent activity or were outside the affected area. He presented his justification for not <br />conducting monitoring at many sites concluding that the data obtained was sufficient ro assess <br />the probable hydrologic impacts. He objected to the proposed penalty for several reasons. <br />First, he questioned whether the violation was assessed as an administrative violation or as a <br />performance violation. The statement in the penalty worksheet which states that, "failure to <br />conduct hydrologic monitoring obstructs the ability of the Division, the operator and the <br />public to assess mine related impacts on the hydrologic balance" implies this was assessed as <br />an administrative violation. According to Rule 5.04.5 (3)(b)(ii), the penalty must consider <br />the extent to which enforcement was obstructed for administrative violations. <br />This NOV has to be considered both as an administrative violation and as a performance <br />violation. The NOV was issued as a violation of Rule 4.05.13 (2)(a), a performance standard <br />which requires water monitoring to be conducted in accordance with a plan approved under <br />2.05.6(3)(b)(iv) to determine hydrologic consequences. If the monitoring is not conducted <br />according to the approved plan the hydrologic impacts cannot be accurately assessed and the <br />Division's ability to enforce is obstructed. <br />Second, Mr. Koehler disagreed with the statement in the proposed penalty which says that "It <br />would be inappropriate to evaluate the technical adequacy of the hydrologic monitoring plan <br />during the civil penalty process". He argued it ~ necessary to evaluate the data to determine <br />whether or not damage actually occurred. <br />This statement needs to considered in the context in which it was written. The paragraph of <br />the proposed civil penalty states: <br />The operator asked that the penalty assessment "look beyond the question of whether <br />or not particuhu• monitoring criteria were met and to consider the larger question of <br />whether or not the majority of the monitoring ... was reasonable and necessary". This <br />larger question is considered by the Division when monitoring plans are established in <br />the mine permit. It would be inappropriate to evaluate the technical adequacy of the <br />hydrologic monitoring plan during the civil penalty process. <br />An assessment conference is not meant to replace the review process. I cannot dismiss <br />permit requvements. If an operator is concerned with the requirements of a monitoring <br />plan, it is then responsibility to request a revision, have the Division review it and get the <br />changes approved. However, I feel it is appropriate to consider the data to determine the <br />degree of seriousness. <br />Mr. Koehler pointed out that the 1993 AHR was submitted as required by April 30, 1994. !t <br />