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03/14/1990 13:18 FROM HUE P.FpNO TELT P.0NIC5 70 9544637851303832$ P.05/06 •' - John Higgins Higgins Property Cessation Order C-90-005 Proposed Civil Penalty I have reviewed all information pertinent to this enforcement action. information was received from the staff of the Division,. No information was received from the operator. This enforcement action is a Cessation Order (CO) C-90-005 issued by the Division on January l0, 1990 because the operator was conducting unapproved surface coal mining operations, 5peciflcally, the operator was mining and/or operating in an area without a permit. The Cessation Order has not been terminated as of this date. Mandatory penal In accordance with Ruie 5,04.5(2) the Division is required to assess a minimum civil penalty of 51,750,00 when a cessation order contains a violation for conducting surface coal mining operations without a permit. Further increases above this minimum are to be based on the criteria regarding seriousness and fault. These are addressed separately below. Minimuw mandatory penalty for this component 1s proposed at 51,750.00, Seriousness with regard to a proposed penalty for seriousness, it is noted that the failure to secure an approval for the cited operations is an administrative failing which may be accompanied by environmental Consequences. Environmental consequences were noted in that drainages were filled with spoil, and no topsoil was salvaged. Therefore damage did pCCUr. Duration and extent were moderate to Significant, as the area disturbed encompassed approximately 4 acres. An assessment for seriousness is proposed at 5750,00. Fault An assessment for fault is proposed when, in the assessment officer's view, the operator caused or failed to correct the violation, condition or practice leading to the violation. In this instance, the degree of fault relates to the failing of the operator to secure a permit. In conversation with the operator on January 12, 1990 he indicated that he was under the impression he did not need a permit. However, Division correspondence of December 24, 1987 to the operator indicated the need for a permit. The question is whether the operator conducted the operations Intentionally, disregarding the requirements to obtain a permit, or whether he believed that he was entitled to an exemption based on the Division information. There has been no evidence of reckless or intentional conduct provided. At this point there is no proposed assessment for fault. Good Faith A good faith reduction may be warranted if the operator demonstrates rapid compliance and extraordinary effort in achieving the abatement. Since the order has not been fully abated, no good faith reduction fs proposed at this time.