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Proposed Civil Penalty Assessment Powderhorn Coal Company /The Roadside Portals NOV CV-2000-001 March 9, 2000 Materials reviewed in conjunction with the preparation of this proposed assessment were: DMG NOV CV- 2000-001 form. issued 2/I I/00 and DMG inspection report from 2/1 I/00 inspection. The pertnittee did not provide any comments. History [Rule 5.04.5(3)(a)]: Two non-vacated NOVs have been issued to this permittee within the twelve months preceding the issuance date of this NOV (2/11/00). All adminisrative review periods associated with these NOVs have passed. The History component is therefore proposed to beset at $100. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed civil penalty assessment may range from $0 to $1750. The amount proposed for assessment 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 occurtence 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. In this case, a large hole in the embankment of Sediment Pond 41ed to a failure to provide adequate capacity to treat disturbed area runoff and a failure to maintain a stable pond embankment. As such, the events that the pond maintenance standazds are designed to prevent did actually occur. While the duration of the event seems indiscernible, it appears that extent of [he event was rather large, as evidence of Flow was found 150 feet from the point where water came though the embankment. Additionally, as a rather large (60-70 feet) section of the sediment pond embankment appears to have been rendered unstable, the potential for Further impacts appears to continue to exist. The Seriousness component of this assessment is therefore proposed to be set at $750. 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 [o $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. Failure by the permittee to have inspected Sediment Pond 4 immediately following the heavy overnight rain described in the DMG inspection report indicates a moderate degree of negligence. The Fault component is therefore proposed to be set at $500. Cood Faith in Achieving Compliance [Rule 5.04.5(3)(d)J: 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. Good Faith Credit, however, may be considered during a future Assessment Conference. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1350.