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12/;0%88 THU 18:18 FA3 • ~ 010 • should increase the monitoring and compliance period needed before financial assurance release is considered. The DMG is proposing to the MLRB that no financial assurance increas is warranted. This appears to be based on DMG's view that the current $6.1 million bond is m re than ample to cover such activities. That tray be true. However, the possible fact that BMRI ~Iay be able to request bond release for other aspects of its reclamation plan that it tray have cotllpleted, does not mean that the MLRB can allow these new facilities to be un-bonded. If DMG is correct in saying that there is excess in the bond right now, no mg would prevent $MRl from requesting that portion of the bond back. While it is hoped at the DMG would azgue that it could keep the excess to cover the new facilities, without an ecounting of the costs, liabilities, etc., of the new facilities, the DMG and MLRB aze without su crent information to make that assumption. Even if BMR1 would agree to switching the excess to over the new facilities, no one has any idea of the short and long term costs involved. The proper course is to determine the new financial liabilities that the sitq' now has and raise the bond accordingly. If BMRI believes that the existing bond is too high t¢ cover the rest of the site, then it can request bond release at a future date. "i"bis way, the state is ndt caught short with a new liability that has yet to be calculated. IV. Civil Penalties Cannot Be Waived If a Violation is Found Based on any reading of the facts, BMRI is currently in violation of its M~,RB permit. In fact, such violation appeazs to have occurred daily since at least July of 1998 when the data results exposed the ground water protection level exceedences. Indeed, the DMG's Dec~mber 1, 1998,1etter to BMRI admits that: "The Division believes this [ground water exce deuces] is a violation of a permit condition for groundwater pursuant to 34-32-124." However, the DMG "Presentation Form" submitted to the MLRB propos s that the civil penalties under 34-32-124 be •tivaived." Such a waiver is not permissible under the Mined Land Act. CRS 34-32-124 (emphasis added} expressly states that: Any person who violates any provision of any permit issued under this article shall be subject to a civil penalty of not less than one hundred dollars per day nor 14tore than one thousand dollars per day for eae6 day during which such violation occurs Thus, if a violation is found, at least the minimum civil penalty must be levied ainst the permit violator. Although previous MLRB practice may have been to ignore the mandat ry effect of this provision of the Mined Land Act, such avoidance of the law in the past does not j stify avoidance in the future. In this case, such a penalty must be calculated from the beginning of the violation -July 8, 1998, at the earliest. However, it is almost certain that ground water permit compliance levels were being violated prior to July 8a' but after the previous sampling date of April ~, ] 998.