2013-01-22_ENFORCEMENT - C1981033

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Proposed Civil Penalty Assessment The Bear Coal Company, Inc / The Bear No. 3 Mine NOV CV- 2012 -009 — January 16, 2013 Materials reviewed: NOV CV- 2012 -008; DRMS internal memo (3/4/2009); DRMS RN5 Findings (6/22/2209); Bear No. 3 Mine 2010 ARR; DRMS internal memo (3/9/2011); DRMS SL4 Findings (3/31/2011); Permittee letter (12/27/11) informing DRMS of intent to not renew DRMS permit; DRMS internal memo (3/7/12); Letter (6/27/12) from CDPHE to Permittee regarding termination of CDPS permit. History [Rule 5.04.5(3)(a)]: The permittee has not received an NOV within the last 12 months. The History component is therefore proposed to be set at $0. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed assessment may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance and/or administrative requirements. This NOV was for violations of administrative and performance requirements. In the case of a violation of administrative requirements, the amount to be assessed for Seriousness depends on the extent to which enforcement was prevented. In this case, the administrative violation was the permittee's failure to renew its DRMS permit, thus allowing the permit to expire. Enforcement in this case was not obstructed by this administrative violation. In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of area and impact on the public or environment. In this case, the violation of performance requirements was the permittee's failure to conduct reclamation and achieve Phase Ill bond release before expiration of its permit. (I) Regarding the probability of the occurrence of the event which a violated standard is designed to prevent, the law and rules are designed to ensure that permittees conduct reclamation and achieve Phase III bond release before their DRMS permits are terminated. In this case, the violations (failure to conduct reclamation and failure to achieve Phase III bond release before DRMS permit expiration) that the rules are designed to prevent did in fact occur. (2) Regarding the duration and extent of any actual or potential damage caused by the violation in terms of area and impact upon the public or environment, the on- the - ground disturbance at this site is reported in the permittee's 2010 Annual Reclamation Report as 9.8 acres. The Division in the Spring of 2011 approved an application for a partial Phase I bond release (SL4) for 7.5 acres. The Division noted in the SL4 Findings that "there are three issues occurring at the Bear No. 3 Mine that resulted in the exclusion of the west side of the reclaimed hillside from the SL -4 bond release ". The Findings stated that these three issues were (a) "signs of slope instability, including cracks and holes,...occurring in the area where the two mine portal entries were sealed and backfilled "; (b) evidence of a thermal event, which event is perhaps "affecting the slope stability and seals of the two backfilled mine portal entries" and perhaps being "a public safety concern "; and (c) the existence of a spring located "on the hillside just down gradient of [the] unstable reclaimed portal area ", the source of which, and "its relationship to the landslide and reclamation stability", were unknown. The exact areal extent of this potentially unstable area is not clear, but appears to be 0.94 acres (9.80 total disturbed acres - 7.50 acres - 1.03 acres associated with two unreclaimed ponds - 0.26 acres associated with a permanent flood control berm - 0.07 acres associated