Laserfiche WebLink
Page 3 of 5 <br />If the person has not abated the violation within the 30 day period, the Division shall take <br />appropriate action pursuant to Section 34 -44- 123(7), 34 -33- 123(9), 34 -33- 123(10), or 34- <br />33- 123(12) within 30 days to ensure that there will not be a reoccurrence of the failure to <br />abate. <br />Thus, in addition to the NOV, CO, and civil penalties, Rule 5.04.6(4) requires the Division to take <br />enforcement action against Bear to ensure that the violations will not reoccur. The Rule identifies <br />alternative actions that the Division can take, including issuing an order to show cause for revocation of <br />a permit (C.R.S. § 34- 44- 123(7)), instituting proceedings for additional fines or imprisonment (C.R.S. <br />§ 34 -44- 123(9), (10)), or seeking a temporary or permanent injunction against the operator (C.R.S. § 34- <br />44- 123(12)). Of the alternatives, the Division recommends revoking the Permit pursuant to C.R.S. § 34- <br />44- 123(7) because revocation will prevent Bear's violations from reoccurring and, concurrently with <br />revocation, the Division can seek forfeiture of the performance bond to complete reclamation of the <br />Mine. To revoke the Permit under C.R.S. § 34 -33- 123(7) and its interpreting regulations, the Division <br />must issue an order to show cause based upon an established pattern of violations. See also R. 5.03.3. <br />Pattern of Violations <br />Rule 5.03.3(2) states the "Division may determine that a pattern of violations exists or has existed, based <br />upon two or more inspections of the permit area within any 12 -month period after considering all the <br />circumstances ...." The Division issued the NOV and CO based upon two Division inspections of the <br />Mine within a 12 -month period. Of the circumstances identified as demonstrating a pattern of <br />violations, the following two apply: <br />The number and type of violations, cited on more than one occasion, of the same or <br />related requirements of the Act, the Rules, or the permit; and <br />The extent to which the cited violations were isolated departures from lawful conduct. <br />Rule 5.03.3(2)(a)(i), (iv). First, Bear has violated the same or related requirements of the Act, the Rules, <br />and its Permit and the Division has cited Bear's violations on more than one occasion. Both Notice of <br />Violation CV- 2012 -009 and Cessation Order CO- 2013 -001 cite Bear for violating the same <br />requirements of the Act, the Rules, and the Permit. Specifically, Bear failed to maintain a valid Permit <br />when reclamation remained incomplete, failed to complete reclamation activities, and failed to abate <br />identified violations. This satisfies the first circumstance for determining that a pattern of violations <br />exists. <br />Second, Bear's violations are not isolated departures from lawful behavior. Bear affirmatively stated in <br />its December 27, 2011 letter that Bear would not comply with the law by not seeking renewal of the <br />Permit and not satisfying Permit's reclamation obligations after expiration of the Permit. Bear's stated <br />intention to not comply with the Act, Rules, and Permit beyond July 2012 has been confirmed by Bear's <br />on -going failure to comply with the law, despite multiple demands from the Division in correspondence, <br />inspection reports, the NOV, and the CO. Bear's conduct, therefore, is not an isolated departure from <br />lawful conduct, but an intentional disregard for the requirements imposed by the Act, the Rules, and its <br />Permit. This satisfies the second circumstance to determine that a pattern of violations exists. <br />