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Proposed Civil Penalty Assessment Powderhorn Coal Company /The Roadside Portals NOV CV•2001-017 December 11, 2001 Materials reviewed in conjunction with the preparation of [his assessment were: DMG inspection report of 11/19-20/01; DMG NOV CV-2001-017 form (2/11/00); DMG NOV Modification form (I 1/27/01); four e- mails between Dan Mathews and David Berry; one a-mail from Dan Mathews to Sandra Brown; DMG memo from Byron Walker to Dan Mathews (11/16/97); letter from permittee to Colorado Water Quality ConVOI Division (11/26/01); three phone calls between Dan Mathews and Dan Hernandez on 12/11/01. History [Rule 5.04.5(3)(a)]: Two NOVs have been previously issued to this permit[ee within the twelve months preceding the issuance date of this NOV (11/2]/01). These two previous NOVs are, however, currently under judicial appeal. The History component is therefore proposed to be set at $0. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed assessment may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance requirements or of administrative requirements. This NOV was written for a violation of performance requirements. In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential of actual damage in terms of area and impact on the public or environment. (1) As mine drilling water piped through the embankment of Minewater Pond 12, the event that the pond construction and maintenance standards are designed to prevent did in fact occur. (2) The duration of the event appears to have lasted from sometime after 12:00 midnight 1 I/17/O1 to 12:30 pm 11/18/01 (approximately 12 hours). The extent of this Flow, from Pond 12 [o the Colorado River, was approximately''/z mile. The perntittee's letter of 11/26/01 to the Colorado Water Quality Convol Division indicates the water exceeded a Total Suspended Solids effluent limitation. This event is therefore considered significant. The Seriousness component of this assessment is therefore proposed to be set at $1250. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations that were the result of "negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. Failure by [he permittee to have consWCted and maintained Minewater Pond 12 so that it could function as approved indicates a moderate degree of negligence. The Fault component is therefore proposed to be set al $500. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: As this NOV has yet to be fully abated, no reduction of this assessment for good faith efforts in achieving compliance is proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1750.