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COFHE 619CD •Fax:~03-7S2-n;9p May 1000 1~ 22 F. 06 5. The West Pit containinc the backfill materials is a "point source" as defin~d by section 25-3-10;04), C.R.S 6. At no time relevant to the above-stated facts did BMGC or BMRI hold th aopropriate CDPS permit from the Division authorizing a discharge of pollutants into state waters. 7, The conclusions of law stated in the oreceding paragraphs constitute viol~[ions of section ZS-3-~O1(1), C.R.S., which provides in pertinent part: "No person shall ischarge any pollutant into any state evater from a point source without fast having obtained a permit from the Division for such dischazge." III. CIVIL PENALTY ASSESSIVIENT AND PROCEDURES FOR Il'IPOSITIOIY OF CIVIL PENALTY 1. In accordance with the Water Quality Control Division's Civil Penalty P licy (adopted May 1, 1993) (the "Civil Penalty Policy"), the Division calculated an i~tia[ penalty of $204,000. II 2. The civil penalty assessed against Battle Mountain is based upon 632 da of violation. The'beginning of the violation period is October 7, 1997, the date ele ated pollutant (sulfate) levels were first detected in the surface water of the Rito Seco t monitoring station RS-5. The ending date of the violation period is August 20, ] 99, the date BMR] Fled its CDPS permit application with the Division. The Division di not include days of violation after BMRI filed its permit application because, in this ase, the Division provided a schedule of compliance in the August 20, 1999 NOV-CDO hich included a requirement to obtain the necessary CDPS permit. On the same day, IvIRI filed its CDPS permit application with the Division. Under such circumstances, e Division does not seek penalties for days of violation subsequent to filing of the ermit application. 3. Pursuant to the Civil Penalty Policy, the assessment of the initial penalty 'ncluded an analysis of the following relevant components: (a) a fault component; (b) a p tential damage component; and (c) an economic benefit ofnon-comp]iance component. The Division assessed the fault component at 5300 per day (Category I Fault uoder t e Civil Penalty Policy) for 632 days, for a total of 5204,000. Category I for the fault co ponent is appropriate in this case because Battle Mountain could not reasonably have b n expected to be awaze of the circumstances which led to the violations at issue. o amount was assessed for the potential damage component because evidence tell d upon by the Division indicates that the violations at issue did not lead to impairment f [he classified uses of the Rito Seco. Under the circumstances of this case, no amou t was assessed for the economic benefit component as Battle Mountain did not realize a financial gain from iU non-compliance.