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,' <br />JUSTIFICATION OF SETTLEMENT AGREEMENT FOR <br />NOV C-92-020 <br />NOV C-92-020 was written for "failure to maintain sedimentation pond 15-P11 to <br />provide adequate capacity to contain or treat the runoff or inflow entering <br />the pond as a result of a 10-year, 24-hour precipitation event". The primary <br />dewatering device of this pond was clogged, allowing no water to drain from <br />the pond. NOV C-92-020 was issued by Joseph Dudash, Reclamation Specialist, <br />on July 28, 1992. The situation was found to be in noncompliance with <br />regulatory section 4.05.6(3)(a). <br />The penalty assessment proposed by the Division Assessment Officer was: <br />History -0- <br />Seriousness 3750.00 <br />Fault 3500.00 <br />TOTAL PROPOSED CIVIL PENALTY: 31,250.00 <br />Mr. Greg Lewicki, P.E., representative for Trinidad Basin Mines (TBM), stated <br />TBM's opinion that it would have been appropriate to allow the operator to <br />unclog the outlet structure without the issuance of a notice of violation. <br />However, Mr. Lewicki did not refute the fact of the violation. I was not <br />persuaded by Mr. Lewicki's comments, and found the notice of violation to have <br />been appropriately issued to TBM. Based upon the evidence presented I found <br />the proposed assessment for History to be appropriate. I was persuaded, <br />however, that the proposed assessments for both Seriousness and Fault were <br />inappropriate. The emergency spillway was functional and the impoundment ~.+as <br />not in danger of structural compromise. Further, Mr. Lewicki provided data to <br />demonstrate that the summer of 1992 has been characterized by abnormally high <br />precipitation in she Trinidad area. Therefore, I am proposing to decrease the <br />assessment for the Seriousner component from 375J to 3500, ar.d the assessment <br />for the Fault component from 3500 to 3250. <br />Regulation section 5.04.5(3)(d) allows the conference officer to assign a <br />penalty reduction to reflect "Good Faith", if the permittee took <br />"extraordinary" erforts to abate the violation in the shortest possible time <br />before the abatement deadline. I did not find an adjustment for "good faith <br />to apply in this case. <br />In conclusion, I propose to amend the penalty assessment for Notice of <br />Violation C-92-020, as follows: <br />History -C <br />Seriousness 3500.00 <br />Fault 3250.00 <br />Good Faith -0- <br />PROPOSED ADJUSTED CIVIL PENALT'(: 3750.60 <br />Doc. No: 9241E <br />