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Felicity Hannay, legal consultant to WFC, provided comments regarding WFC 's response. Felicity expressed concern that neither the CDOH or the CDW notified the company until March 8th, even though the potential problem had been reported to CDOH on the 5th. She repeated the observation that WFC responded immediately when notified on March 8, 1988. Ms. Hannay also provided a copy of a letter to Candace Thompson, an hydrologist for the Division, dated April 2, 1985. This letter was submitted as the cover letter on a technical revision application for the addition of Ponds 002A and 0028 to the sediment control system. The first paragraph of the letter concludes with the sentence: "These cells should also reduce the amount of flocculent currently necessary to meet NPDES effluent standards." Felicity closed with an observation that the accident would not occur again and that she did not believe that a CO was appropriate because all offensive and hazardous activities had been ceased on March 8, 1988, long before the enforcement action was taken on April 5, 1988. In my opinion, CO No. C-88-017 was appropriately issued by James C.Stevens. The severe potential environmental impact (fish kill) required the issuance of a CO, in accordance with Rule 5.03.2. Civil Penalty Assessment At my request, Jim Steven's summarized the proposed civil penalty. The Division's assessment officer proposed the following penalty assessment for Cease Order C-88-017: History E250.00 Seriousness E1 ,750.00 Fault E750.00 Daily Penalty: ~75~6~ Number of Days of Violation x 4 TOTAL PROPOSED PENALTY: $TT~60D.66 The assessment officer assessed 4 separate days based on the time lapsed between March 5th, when the fish kill was first reported, and March 8th, when the flocculent introduction was ceased. Mr. Stevens also observed that, if WFC correctly stated the installation date of the new flocculent pump as February 29, 1988, the illegal flocculent introduction had occurred for 9 days. Wyoming Fuel Company's representatives responded to Mr. Stevens comments regarding the proposed civil penalty. Lindeke Trumbly commented that the effects were not serious in that they were apparently short lived and that CDOW didn't even intend to restock the Brown Trout, choosing to allow the Purgatoire to naturally repopulate. WFC's representatives also believed the high-level negligence fault assessment was overly strict since the occurrence was a one time simple lack of familiarity with new equipment. Ms. Trumbly stated WFC's offense at the four day multiplier assessment proposal, based on the facts that there is no demonstration of how long the pond continued to discharge flocculent levels in excess of the LC50 toxicity limit. Further, she observed that if the agencies involved had brought the problem to WFC's attention earlier, the company could have responded earlier.