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DUFFORD ~ BROWN, P.C. <br />Mr. Michael B. <br />August 4, 1993 <br />Page 3 <br />Long, Director <br />the permit number, but did not list the address or telephone <br />number. As noted above, these oversights from the corrective <br />action taken in late April were corrected immediately on <br />June 10. <br />The Division has proposed a penalty of $22,200 for the <br />Cessation Order. This amount includes $21,000 for the minimum <br />"failure to abate" penalty of $750 per day for 28 days from <br />May 12 through June 10. While we have .some disagreements with <br />the assessments for seriousness and fault, ti~is daily penalty <br />is clearly excessive for omitting a telephone number and <br />address due to an obvious oversight. <br />we believe that the Cessation Order was improperly issued <br />because there were insufficient grounds to support the "good <br />cause shown" finding required by Rule 5.03.2(3) for issuance of <br />a failure to abate cessation order. We realize that the Eorm <br />used in this case contains the boilerplate finding, "for good <br />cause shown, that a Cessation Order must be issued The <br />only basis for that finding appears to be that the NOV <br />abatement period had eapired and that two of the signs lacked <br />the address and telephone. (We are not certain whether the <br />Division also claims that the Denver telephone number on the <br />other two signs was not in compliance.) The following factors <br />more than offset any support those two points provide for the <br />required "good cause" finding. <br />1. All of the required identification signs were <br />installed promptly after the NOV was issued, along with the <br />perimeter and topsoil markers. <br />2. Mr. Weaver reported the abatement action to the <br />Division on April 30 in the good faith belief that the NOV was <br />fully abated. <br />3. The inspection in late May gave EFMC reason to <br />believe that the Division acknowledged that the signs were in <br />compliance and that the NOV was fully abated, and no reason to <br />believe the contrary. <br />4. Because the loadout areas are inactive and remote <br />from the Mine, they were not visited regularly to provide <br />opportunities to identify any errors. <br />5. The excluded information was the result of <br />inadvertence and not purposeful noncompliance. <br />6. EFMC gained no monetary or other advantage from the <br />excluded information because the signs were prepared and <br />installed. <br />