2016-10-21_ENFORCEMENT - C1992081

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Proposed Civil Penalty Assessment Hayden Gulch Terminal, LLC / The Hayden Gulch Loadout NOV CV -2016-002 (Issued September 22, 2016) Date of Proposed Assessment: October 20, 2016 Materials reviewed: DRMS Inspection Reports (9/9/16; 9/26/16); DRMS NOV CV -2016-002 (9/22/16); E- mail from permittee to DRMS (10/3/16). History [Rule 5.04.5(3)(a)]: No NOVs have been issued at this site during the 12 months preceding the issuance of NOV CV - 2016 -002. 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 requirements or of administrative requirements. This NOV was written for a violation of performance requirements 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. (1) Events that standards are designed to prevent did in fact occur. Two disturbances were created by the company's demolition contractor beyond the approved permit boundary without prior Division approval and without reclamation bond for the specific disturbances. (2) The extent of the actual impact (1.5 acres) was relatively small. Duration is unknown. The Seriousness component of this assessment is therefore proposed to be set at $500. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations that were the result of "negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. According to the 9/9/16 inspection report, permittee representatives were not present on-site when the DRMS inspector observed the cited activity, though representatives reportedly arrived later that same day once the DRMS inspector informed the company of potential problems. This NOV therefore appears to have occurred as the result of a moderate degree of negligence. The Fault component is therefore proposed to be set at $500. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: While the permittee has abated one of the two imposed abatement measures, good faith credit cannot be granted until all abatement measures are abated and the NOV terminated. Good faith credit is therefore not proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1000.