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revision process. <br />Based on the information preserved in the conference I conclude this was an intentional <br />decision. The crux of COVCC's argument for reducing the penalty lies in their belief that <br />many of the monitoring sites were unnecessary for determining impacts on the hydrologic <br />balance. In order to make this determination, the operator knowingly evaluated the <br />monitoring program to determine which sites could be deleted. COVCC deemed many sites <br />were unnecessary and monitoring them became a low priority. This was a conscious <br />decision. <br />I agree with the amount of the proposed penalty. <br />Good Faith <br />The NOV was terminated in a timely manner <br />good faith reduction. <br />No evidence was presented to recommend a <br />Number of Days Penal Assessed <br />Although, I agree with the concept of considering economic gain for the penalty I think the <br />rules are ambiguous in how to assess economic gain. Rule 5.04.6 allows for the assessment <br />of a separate civil penalty for each day from the date of issuance to the date of termination. <br />The rule states: <br />The Division may assess a separate civil penalty for each day from the date of <br />issuance of the notice of violation or cessation order to the fixed for abatement of a <br />violation. In determining whether to make such an assessment, the Division shall <br />consider the factors listed in 5.04.5(2) and may consider the extent to which the <br />person to whom the notice or order was issued gained any economic benefit as a result <br />of a failure to comply. <br />Rule 5.04.5 addresses the System for Assessing Civil Penalties. Rule 5.04.5(2) refers to <br />assessing a mandatory penalty for mining without a permit or exploring without approval. <br />This reference does not apply to C-94-038. Therefore, it is uncleaz to me bow an economic <br />gain can be calculated, since Rule 5.04.5(3) states that the amount of penalty assessed per <br />violation shall be governed by history, seriousness, fault and good faith. Because of this <br />ambiguity, I am not upholding the $1,485.00 for the number of days penalty assessed. <br />Settlement Agreement Penalty <br />History $0.00 <br />Seriousness $1000.00 <br />Fault $1250.00 <br />Good Faith $0.00 <br />Total $2250.00 <br />