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Seriousness [Rule 5.04.5(3)(b)]: <br />Proposed Civil Penalty Assessment <br />The Bear Coal Company, Inc / The Bear No. 3 Mine <br />DRMS Permit No. C -1981 -033 / Cessation Order CO- 2013 -001 <br />February 5, 2013 <br />I. Failure to Abate Mandatory Civil Penalties [Rule 5.04.6(3); 5.04.6(4)]: <br />When a person fails to correct a violation, for which a notice of violation or cessation has been <br />issued, within the abatement period as originally fixed or subsequently modified, the Division is <br />required to assess a civil penalty of not less than $750 for each day during which such failure to <br />correct the violation continues beyond the fixed abatement period. Such penalty for the failure to <br />abate the violation shall not be assessed for more than 30 days for each such violation. <br />Notice of Violation CV -2012 -009 was issued on 12/17/12. The NOV abatement date was <br />12/31/12. The fixed abatement period was therefore from 12/17/12 to 12/31/12. As of today, the <br />violation cited in the NOV has not been abated. The number of days beyond the end of the fixed <br />abatement period is now thirty -four. The maximum number of days for which the civil penalty <br />mandated by 5.04.6(3) can be assessed is thirty. Thirty days multiplied by $750 /day = $22,500. <br />The mandatory civil penalty component is therefore proposed to be set at $22,500. <br />II. Cessation Order Mandatory Civil Penalties: Penalty Calculation Criteria [Rule 5.04.5(1)]: <br />History [Rule 5.04.5(3)(a)]: <br />The permittee was issued NOV CV -2012 -009 on 12/17/12; however, the time within which Bear <br />Coal Company can request administrative and /or judicial appeal of the NOV has not yet expired. <br />The History component is therefore proposed to be set at $0. <br />The Seriousness component of a proposed assessment may range from $0 to $1750. The amount <br />proposed depends upon whether the violation was one of performance and /or administrative <br />requirements. NOV CV- 2012 -009 was issued for violations of administrative and performance <br />requirements. <br />In the case of a violation of administrative requirements, the amount to be assessed for <br />Seriousness depends on the extent to which enforcement was prevented. In this case, the <br />administrative violation was the permittee's failure to renew its DRMS permit, thus allowing the <br />permit to expire. Enforcement in this case was not obstructed by this administrative violation. <br />In the case of a violation of performance requirements, the amount to be assessed for Seriousness <br />depends upon (I) the probability of the occurrence of the event which a violated standard is <br />designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of <br />area and impact on the public or environment. In this case, the violation of performance <br />requirements was the permittee's failure to conduct reclamation and achieve Phase III bond <br />release before expiration of its permit. <br />(I) Regarding the probability of the occurrence of the event which a violated standard is designed <br />to prevent, the law and rules are designed to ensure that permittees conduct reclamation and <br />achieve Phase III bond release before their DRMS permits are terminated. In this case, the <br />violations (failure to conduct reclamation and failure to achieve Phase III bond release before <br />DRMS permit expiration) that the rules are designed to prevent did in fact occur. <br />