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NOTICE OF VIOLATION (NOV) C-85-010 This notice of violation was written for "failure to complete sediment pond upgrading withirythe time frame stipulated in the May, 1984 Findings Document and subsequently extended by the Division on October 22, 1984, in response to a request by the operator to extend the deadline from October 19, 1984 to November 9, 1984. The operator, Grand Mesa Coal Company, presented no contest to the facts of the violation which was upheld as written. Staff proposed that the following violation: History $ 00.00 Seriousness 250.00 Fault 750.00 TOTAL ~ The operator's representatives, Mr. Dale Fenwick and Larry Reschke, presented a response to the proposed penalty assessment for seriousness. They stated that during the December inspection, the Company's representative discussed their consultant's original pond sizing calculations with Candace Thompson, Division inspector. They explained to Candy that the consultant had mistakenly used 2.2" of precipitation for the design event, which should have been 1.7" of precipitation. As a result, the existing pond, even though incomplete, exceeds the required storage volume for a ten-year, 24-hour event. Based upon their comments, with which the Division does not disagree, I have reduced the assessment for seriousness from $250.00 to $125.00, reflecting the decreased probability of damage occurrence. The operator also presented a response to the Division's proposed fault assessment for "willfulness". Messrs. Fenwick and Reschke observed that Grand Mesa Coal Company contracted to complete the excavation of the sediment pond. The contractor, Beavers Construction Company, performed 10 hours of excavation at the site from November 12, 1984 (see attached billing memoranda submitted by Company in evidence). Unfortunately, lacking direct supervision by Grand Mesa Coal Company, Beavers Construction Company incorrectly excavated the pond. Following November 12, 1984, according to the operator's testimony, weather conditions did not allow final grading of the pond embankment. Based upon the evidence of the operator's effort expended to complete the pond before the deadline, I do not believe it is appropriate to assess a fault component for "willfulness". Therefore, I am amending the assessment for fault to reflect "negligence" and am imposing an amended penalty assessment for fault of $500.00. In reflection of the above assessment amendments, the amended civil penalty assessment is as follows: History Seriousness Fault TOTAL $ 00.00 125.00 500.00 $ 625.00 In closing, it is my decision that no adjustment for good faith will be applied in this penalty assessment decision. 0675E