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<br />Ref: 8EIVF-T <br />MEMORANDUM <br />SUBJECT: Analysis of Penalty Assessed in Class II Complaint in the Hall-Irwin Corporation, <br />Peter and Cindy Baurer, and Cazl Eiberger § 404 Violations at the Baseline <br />Aggregate Resowce Operation (Baseline) Mine <br />FROM: Barbara L. Conklin <br />Section 404 Enforcement Program <br />TO: Hall-Irwin Corporation et al. Case File <br />This memorandum presents Region 8's analysis of the factors that are to be considered in <br />determining the amount of the civil penalty to assess in the administrative penalty action against <br />the Respondents in the § 404 violations at the Baseline Mme near Brighton, Colorado. These <br />factors are set forth in Section 309(8)(3) of the Clean Water Act, 33 U.S.C. § 1319(8)(3). The <br />factors aze as follows: (1 }the natwe, circumstances, extent and gravity of the violations; (2) the <br />Respondents' prior compliance history; (3) the Respondents' degree of culpability; (4) the <br />Respondents' economic benefit or savings resulting from the violations; (5) the Respondents' <br />ability to pay the proposed penalty; and (6) any other matters that justice requires be considered. <br />The analysis of the requved factors mentioned above supports the proposed assessment of <br />a $137,500 penalty in the Administrative Penalty Complaint. The substantive aspects of this <br />analysis are explained below. <br />A. Nature, Circumstances, Extent, and Gravity of Violations <br />In considering the above factors, EPA examines the number, type, duration, and <br />significance of the violation or violations, as well as the actual and potential harm to human health <br />and the environment. In the Hall-Irwin Corporation et. al § 404 violations case, EPA alleges that <br />approximately 3.39 acres of wetlands adjacent to the South Platte River were dvectly and <br />indirectly impacted when a slurry wall was constructed without the required authorization under <br />§ 404 of the Clean Water Act. <br />The site falls within the South Platte floodplain where considerable aggregate mining is <br />occurring. Much of the recoverable aggregate is located in vulnerable wetland/riparian areas neaz <br />the river environment. Construction of slurry walls alters the flow of surface and Bound water. <br />Concerns include habitat fragmentation, and water quality degradation. These types of violations <br />do impact stream and wetlands quality and affect the biological function and values. of the aquatic <br />resources. For example, dischazges of dredged and fill material can smother fish spawning areas <br />and areas where the insects and other organisms that fish depend on for food live. The lack of <br />wetlands allows chemical pollutants to reach our rivers and streams which also affects fisheries <br />and wildlife ant their habitat. That is why the Clean Water Act specifically requires EPA and the <br />Corps of Engineers to regulate the discharge of dredged or fill material as a pollutant. <br />During June and July of 1998, Hall-Irwin Corporation, began construction of a slurry wall, <br />a portion of which was in wetlands that were previously delineated and known by Hall-Irwin <br />