2011-06-14_ENFORCEMENT - M1977300

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The Board's reliance on Rule 3.3.2 is misplaced for two reasons. First, Rule 3.3.2(2)(b) limits the imposition of a civil penalty to "a violation of the provisions of a permit, the Act, or these Rules." In the same manner as the statute, the Rule does not include the violation of an order as a basis for imposing a civil penalty. Second, to the extent Rule 3.3.2 could be read as giving the Board broader authority to impose civil penalties, including for the violation of an order, the Rule would be void and without legal effect because it would change the existing statute. "When [an administrative agency] is vested with authority to administer a statute and empowered to adopt regulations to enforce the statute, regulation must be within the perimeter of the statute. In attempting to regulate in accordance with the statute, regulation may not supersede the statute." Big Top, Inc., 368 P.2d at 204; see also Miller, 646 P.2d at 344 ( "As we have often said, a regulation must further the will of the legislature and may not modify or contravene an existing statute. Thus, any regulation which is inconsistent with or contrary to a statute is void and of no effect." (Citations omitted.)). 3. The Division did not allege or prove a violation of Cotter's permit. In its December 2010 Order, the Board attempts to overcome its lack of statutory authority by stating, "Cotter's failure to comply with the Board's August 11, 2010 Order is a violation of its permit ...." December 2010 Order, ¶ 16; AR:0169. This is pure fiction. As shown below, the Division neither alleged nor proved that Cotter violated any provision of its permit. a. The only issue raised by the Division was whether Cotter violated the August 2010 Order. In its September 2010 Notice, the Division plainly stated the basis for its notice: "The Operator has failed comply with a Board Order." AR:0050. The day before the Hearing, the 12