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...~ <br />~ ~ <br />WELBORN, DUFFORD 8 BROWN <br />Mr. David C. Shelton <br />April 24, 1984 <br />Page 4 <br />account the operator's attitude over time. Blue Ribbon is <br />confident that the Division will conclude that its attitude in <br />managing the inherently difficult conditions at the mine, both <br />prior to this incident as well as in abating the IdOV, does not <br />approach either indifference or recalcitrance. <br />Viewed in that perspective, this case amounts to an <br />isolated incident caused by misunderstanding and inadvertence <br />amounting to negligence with regard to proper communication <br />with the Division. This interpretation of the circumstances is <br />further buttressed by the willingness of Blue Ribbon expressed <br />by Bill Tate upon learning of the situation to take <br />extraordinary measures to achieve compliance, before he knew of <br />the extraordinary enforcement action being contemplated. This <br />commitment was carried out as expressed and was typical of Blue <br />Ribbon's approach to other concerns of the Division. Thus, an <br />extension to March 29 is reasonable in light of Blue Ribbon's <br />attitude toward compliance, as well as the other two factors. <br />One other point should be considered in evaluating the <br />extension request. Had Blue Ribbon contacted the Division <br />prior to March 1 with an explanation of the factors which in <br />fact existed then, Blue Ribbon believes that a requested <br />extension to March 29 would have been granted, although <br />possibly in two separate increments. If that is the case, <br />granting that same request now would effect the same <br />environmental and compliance result. It is therefore clear <br />that denying the request now would only accomplish the purpose <br />of imposing an extraordinarily excessive penalty solely for <br />failure to make that contact. <br />While Blue Ribbon acknowledges responsibility for its <br />failure in this instance, we submit that it was an aberration <br />rather than indicative of indifference or defiance. It should <br />be penalized accordingly, which can be accomplished by an <br />adjustment in the assessment for the NOV. <br />Accordingly, Blue Ribbon again requests that the <br />cessation order be vacated and that the abatement period for <br />the associated NOV be extended to March 29, 1984. <br />We appreciate your consideration of these comments. <br />Sincerely yours, <br />WELBQRN, DUFFORD, BjQWN ~ TOOLEY <br />.j ~ ' <br />Richard L. Fanyo /~/ <br />RLF/sn <br />cc: William S. Tate <br />Robert Hykan, Esq. <br />