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Fred R. Banta, Director August 10, 1990 <br /> MLRD, Denver, CO 80203 Page 17 <br /> A major storm event does not excuse an operation from minimizing <br /> erosion. " In determining fault, the assessment officer noted that <br /> "Mid-Continent had diligently repaired and maintained other <br /> structures that were damaged. " However, "this area is not readily <br /> visible from above" and the effect "is relatively minor . . " <br /> The issue presented by the Order to Show Cause is whether <br /> this violation occurred as a result of an unwarranted failure to <br /> comply with the law. It did not. <br /> Post-storm maintenance and repair occurred all over Coal <br /> Basin. These two erosion gullies were not repaired because they <br /> were not seen. They occurred in an area that is not readily <br /> visible and consequently not detected. Had they been observed, <br /> they would have been repaired as part of the post-storm clean-up <br /> effort or on-going maintenance. This oversight was found to <br /> constitute a violation. But an oversight does not meet the <br /> standard of an unwarrantable failure to comply. <br /> Part 3 <br /> Legal Objections <br /> To preserve its record at this stage of this show-cause <br /> matter, Mid-Continent makes the following objections to the <br /> determination of a pattern of violations and the bases for the show <br /> cause order. <br /> 1. Properly and legally, a simple number of two or more <br /> violations does not constitute a pattern. <br /> 2 . The Show Cause Order fails to make any actual findings <br /> of fact; it contains only an ultimate conclusion, " [T]he Division <br /> has found that such violations are caused by the unwarranted <br /> failure to the Permittee to comply with such requirements. " This <br /> failure to properly make findings deprives Mid-Continent of <br /> adequate and required notice of the determinations made by the <br /> Division and adversely affects Mid-Continent's ability to prepare <br /> for and address the allegations. <br /> 3 . The enforcement actions taken in NoV C-89-003, C-89-013, <br /> C-89-017, C-90-001 and C-90-002, and in CO C-89-019 are neither <br /> analyzed nor findings of fact made to determine that a pattern of <br /> violations, in fact, exists. This absence of proper analysis and <br /> findings of fact deprives Mid-Continent of adequate and required <br /> notice of the determinations made by the Division and adversely <br />