ENFORCE36247

• Permit No: C1981015
• IBM Index Class Name: Enforcement
• Doc Name: FRUITA BOARD HEARING
• Violation No.: CV1993158
• Media Type: D
• Archive: No

FRUITA BOARD HEARING
Three areas need to be addressed:
I. Resolution of enforcement actions
II. Assessment of mandatory $22,500 FTACO fines
III. Future Fed involvement
I. Resolution of enforcement actions
Because of unabated FTACO, Director must review for Pattern of
Violations (Rule 5.03.3(5)).
Rule 5.03.3(2)(c) allows Director to decline issuing a show cause
due to "exceptional circumstances" which are:
1. there is no permit,
2. operator followed a reclamation plan approved by DMG,
3. DMG acknowledged the plan had been followed by approving
Phase I bond release,
4. operator attempted to get the site permitted, per the
March, 1992 Board Order; DMG proposed to approve the
permit application until OSM objected,
5. site conditions are such that the current situation is
more stable and environmentally sound than if the
highwall were eliminated and,
6. landowners do not want the highwall eliminated.

II. Assessment of mandatory $22,500 FTACO fines
Rule 5.03.6(4) allows inability. to comply with regs to be
considered in mitigation of civil penalties. We can make a case
that the operator cannot comply with current regs because:
1. 4.27.3(3) and 4.27.4(1) require total elimination of
highwalls in a manner resulting in a 1.3 static safety factor.
This cannot be done at Fruita.
DMG has proposed a reg change to address this type of situation.
If required to abate the NOV, the operator could not comply with
the proposed regs either, because:
1. the same minimum 1.3 static safety factor is required and,
2. "reasonably available spoil" to be used for highwall
elimination is defined as material which, "when rehandled will
not cause a hazard to public safety or significant damage to
the environment". The spoil material at Fruita is stable in
its present configuration (demonstrated in the permit to have
a 1.77 static safety factor)and would not be stable if placed