2011-11-09_ENFORCEMENT - C1982056 (2)

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The proposed civil penalty originally determined by the Assessment Officer for CV- 2011 -005 was: History $0.00 Seriousness $1250.00 Fault $750.00 Number of Days of Penalty Assessed 1 Good Faith $0.00 Total proposed penalty $2000.00 After hearing this testimony and considering the evidence presented, I have come to the following conclusions: History A $0.00 penalty is appropriate for history. Seriousness I believe that a violation did occur and under the seriousness category the level of significant was appropriate. Underground waste that could be characterized as development waste as well as non -coal waste generated at the Foidel Creek Mine was transported off the permit area and disposed of at two facilities that were not included in the approved waste disposal plan or permit. The Statute, Rules and permits set forth specific criteria for how each type of material is to be identified, managed and disposed of. For one reason or another, these requirements were not maintained, and approximately 3,300cy of mine - generated waste materials ended up at two unauthorized disposal sites that were not operated in accordance with local, State, and Federal requirements. Therefore assessment of $1250.00 is deemed to be appropriate. Fault The waste material was hauled off the Foidel Creek Mine site by one of Twentymile Coal Company's contractors. Although TCC contends they had no knowledge of, and did not consent to this activity, Twentymile Coal Company, the permittee for the Foidel Creek Mine, has ultimate responsibility for conducting all underground and surface coal mining operations in compliance with the approved permit, the applicable performance standards of the Act, and in compliance with the requirements of the Rules. The permittee is responsible both to communicate the applicable criteria to employees and contractors, as well as to provide sufficient oversight, supervision, and inspections to ensure that waste materials are properly classified, segregated, handled, and disposed of in compliance with the Act, Rules and permit. Discussions at the conference indicated the subcontractor may have breached the written contract it had with TCC, and further, that there may have been deliberate intent by the contractor to mislead TCC through continuing to invoice for tipping fees from the approved landfill disposal site, even though waste was being diverted to the two un- authorized disposal sites. The Division also learned that TCC dealt swiftly and severely 2