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<br />JUSTIFICATION OF SETTLEMENT AGREEMENT FOR <br />NOV C-92-021 <br />NOV C-92-021 was written for "failure to maintain the principal spill~.~ays of <br />permanent impoundments 15-P1, 15-PZ, 15-P20 and 15-P17". NOV C-92-021 was <br />Subsequently modified to include permanent impoundment 15-P8. The primary <br />de'watering device of each pond was clogged, allowing no water to drain from <br />the pond. NOV C-92-021 was issued by Joseph Dudash, Reclamation Specialist, <br />on July 28, 1992. The situation was found to be in noncompliance with <br />regulatory section 4.05.9(1)(e). <br />The penalty assessment proposed by the Division Assessment Officer was: <br />History -0- <br />Seriousness 5750.00 <br />Fault 3500.00 <br />TOTAL PROPOSED CIVIL PENALTY: 51,250.00 <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 structures without the issuance of a notice of violation. <br />In this instance an operator's representative had not accompanied Mr. Dudash <br />during his inspection. However, Mr. Lewicki did not refute the fact of the <br />violation. I was not persuaded by Mr. Le'.vicki's comments, and found the <br />notice of violation to have been appropriately issued to TBM. Based upon the <br />evidence presented I found the proposed a ressment fcr History to be <br />appropriate. I was persuaded, however, that the proposed assessments fcr both <br />Seriousness and Fault were inappropriately high. The emergency spillways were <br />functional and none of the impoundments were in danger of structural <br />compromise. Further, Mr. Lei.+icki provided data to 4emonstrat2 that the summer <br />of 1992 has been characterized by abnormally high precipitation in the <br />Trinidad area. Therefore, I am proposing to decreasz the assessment for the <br />Seriousness component from 5750 to 5500, and the assessment fcr the Fault <br />component from 5500 to 5250. <br />Regulation section 5.04.5(3)(4) allows the confzrence officer to assign a <br />penalty reduction to reflect "Good Faith", if the permittee tcok <br />"extraordinary" efforts to abate the violation in the shortest possible time <br />beforz the abatement deadline. I did not find an adjustment for "good faith" <br />to apply in this case. <br />In conclusion, I proposz to amend the penalty assessment for Notice of <br />Violation C-92-021, as follows: <br />History -0 <br />Seriousness 5500.00 <br />Fault SzSO.oe <br />Good Faith -0- <br />PRCPCSED ADJUSTED CIVIL PENALTY: 5750.00 <br />Doc. No: 9241E <br />