2011-06-14_ENFORCEMENT - M1977300

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B. The Act Does Not Give the Board Authority to Impose Civil Penalties Based on an Alleged Violation of Its Own Prior Order. 1. The Act limits the imposition of civil penalties to violations of a permit, not a Board order. Citing Colo. Rev. Stat. § 34 -32- 124(7), the Board imposed civil penalties against Cotter for violating the August 2010 Order. See December 2010 Order ¶ 17; AR:0169 -70. Based on the plain language of the statute, the Board exceeded its statutory authority. Section 124(7) of the Act clearly and unambiguously limits the imposition of civil penalties to the violation of a mining permit: 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 more than one thousand dollars per day for each day during which such violation occurs. Colo. Rev. Stat. § 34- 32- 124(7). By limiting civil penalties to permit violations, Section 124(7) contrasts with Section 124(1), which states that written notice shall be given to the operator whenever the Board has reason to believe that there has occurred a "violation of an order, permit, notice of intent, or regulation." In other words, the legislature gave the Board authority to issue a written notice for the violation of "an order, permit, notice of intent, or regulation," but limited the imposition of civil penalties to the violation of "any provision of any permit." The legislature's conspicuous omission of "order" from Section 124(7) means it did not intend to give the Board the power to impose a civil penalty in this case. As the Colorado Supreme Court recently emphasized, "[w]hen the General Assembly includes a provision in one section of a statute, but excludes the same provision from another section, we presume that the General Assembly did so purposefully." In re Application for Water Rights of Well Augmentation Subdistrict of the Central Colo. Water Conservancy Dist., 221 P.3d 399, 419 10