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rt • -1 1. Notice of Violation 81-14 1. There is no dispute about the history of violations component of the civil penalty. Therefore, 5100.00 is assessed For that component. 2. On the question of "seriousness", Walden Coal Company states that they believe that mining without a permit is a violation of an administrative re- quirement, not a performance requirement. The Division agrees with Walden Coal Company on this point. Walden Coal Company states further that the Division's enforcement of the applicable regulations was not obstructed by the mining without a permit, and therefore, the penalty assessment should be minimal. On this point the Division disagrees. The difference lies in the interpre- tation of what is an obstruction in the enforcement of the applicable regulations. The Division and the Board have placed a high degree of importance on the necessity of having a permit to mine. It is one of the basic components of the law. The permit contains a mine plan which states specifically how a mine operator intends to comply with the applicable regulations. without the mine plan and an approved permit, it is difficult to determine on a field inspection whether an operator is in compliance with a regulation. For example, without a permit it is difficult to determine whether an operator is stripping topsoil to a proper depth, has adequate sediment control, whether he has the legal . right to enter the property, whether he is bonded for the activity, and similar concerns. The enforcement of applicable regulations is difficult, if not impossible in some instances. Not having a permit and an approved plan obstructs the Division's ability to assess compliance with specific aspects of the law because important information is not available to make those assessments. The Division considers mining without a permit to be one of the more serious violations of an administrative requirement. For this reason and those stated above, the Division proposes $750.00 for the seriousness component of the civil penalty. 3. For the component of the penalty attributed to "Fault", Walden Coal Company proposes a penalty of $150.00 and cites 5.04.5(2)(c)(ii) as the applicable regulation to be used for this determination. [dal den Coal Company states that it "did not act recklessly or knowingly, but under the mistaken belief that the interim permit issued for the Bourg mine included the Northgate Loadout". The Division records do not support this contention, and, instead, indicate that the permittee was well aware that a permit did not exist for this site. By letter of September 30, 1980, Margaret Winter contacted the Division to determine what would be necessary to obtain a permit for the Ioadout. There is nothing in the Division's record which indicates that there was any type of approval for the activity undertaken at the loadout. Also, the record shows that [dalden Coal Company was informed that a permit was needed to undertake the activity at the loadout. In order for the Division to consider that this violation was a result of negligence rather than recklessness, the determination cannot be based on ignorance on the part of the operator that he thought he had a permit, as is stated in the letter of June 23, 1981. Instead, the Division believes the operator demonstrated a lack of diligence, and possibly indifference, in not obtaining a permit to conduct the activity. This was "negligent" as the term is used in the regulations.