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2010-10-28_ENFORCEMENT - M1977300
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2010-10-28_ENFORCEMENT - M1977300
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Last modified
8/24/2016 4:26:16 PM
Creation date
11/2/2010 2:53:40 PM
Metadata
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Template:
DRMS Permit Index
Permit No
M1977300
IBM Index Class Name
ENFORCEMENT
Doc Date
10/28/2010
Doc Name
DRMS Response to Cotter Answer to 9/16/10 Notice
From
DRMS
To
HRO
Email Name
DB2
Media Type
D
Archive
No
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One final matter to address is Cotter's attempt to incorporate by reference into <br />this matter all of its evidence and pleadings it presented or filed in the proceeding <br />involving the May 21, 2010 Notice of Reason to Believe a Violation Exists. See <br />Answer, p. 2. The Division objects to Cotter's attempted incorporation by reference. <br />The prior evidence and pleadings Cotter filed pertaining to the May 21" Notice are <br />irrelevant to this proceeding. In its July 12, 2010 hearing and in its written order of <br />August 11, 2010, the Board determined that Cotter committed violations and <br />determined the corrective actions Cotter is to undertake to address those violations. <br />The only issue in the present matter is whether Cotter failed to comply with the <br />Board's Order. Accordingly, Cotter's prior evidence and pleadings concerning <br />whether violations have occurred and what corrective actions should be imposed are <br />irrelevant to the matter at hand. The Division, therefore, requests that the Board deny <br />Cotter's requested incorporation. <br />The Division reserves the right to file additional evidence or material before or <br />at the hearing. <br />JOHN W. SUTHERS <br />Attorney General <br />CHERYL A. LIND N, 14185 * ^T <br />First Assistant Attorney General <br />Resource Conservation Unit <br />Natural Resources and Environment Section <br />Civil Penalty of not less than one hundred dollars ($100) per day nor more than one thousand dollars <br />($1,000) per day for each day during which such violation occurs." Here, by violating the Board's Order, <br />Cotter has violated the Act (§ 34-32-124, C.R.S.) and the rules (Rule 3.3.2). Accordingly, Cotter is subject <br />to civil penalties for its current violation. <br />Moreover, Cotter's argument that it should not have to pay the previously imposed $55,000 civil penalty <br />amount is without merit. Cotter alleges that the $55,000 penalty and suspension of most of that penalty <br />were tied to the mine dewatering corrective action and that this penalty should not have been imposed <br />because of Cotter's "legitimate scientific challenges to mine dewatering and treatment." Answer, p. 2. <br />However, the Board's August 11, 2010 Order and the evidence it is based upon undermine Cotter's claims. <br />The Board found three violations based on evidence related to the alluvial fill and the mine pool, not just <br />the mine pool. The Board's Order states that the Board will suspend all but $2,500 of the $55,000 civil <br />penalty "if the Operator complies with this Order within the associated deadlines." Board's Order, p. 9. <br />Contrary to Cotter's argument, the Board did not impose the civil penalties based just on violations related <br />to the mine pool and did not suspend all but $2,500 if Cotter only complied with the mine pool corrective <br />actions. Rather, as stated above, the alluvial fill also formed the basis for all three violations and the civil <br />penalties, not just the mine pool, and the Board's Order required Cotter to fully comply with all corrective <br />actions in order to get the benefit of suspension of all but $2,500 of the civil penalty; the suspension would <br />not occur if Cotter just complied with part of the Board's Order. Cotter has not fully complied with the <br />Board's Order. Therefore, Cotter is required to pay the $55,000 civil penalty. <br />7
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