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Proposed Civil Penalty Assessment Powderhorn Coal Company/ The Roadside Portals NOV CV-99-013 lvtaterials reviewed in conjunction with the preparation of this proposed assessment were: DMG NOV CV- 99-013 Form, excerpts from the DMG review of the permittee's 1997 and 1998 AHRs, two letters dated 11/2/99 and 11/9/99 From the permittee's consulting ensineer to DMG. and a letter from DMG Staff dated I I /9/99. History [Rule 5.04.5(3)(x)]: One NOV has been issued to this permittee within the twelve months preceding the issuance date of this NOV (8/20/99). As the associated settlement agreement has been signed and the civil penalty paid, that NOV is no longer subject to administrative review. The History component is therefore proposed to be set at $50. Seriousness [Rule 5.04.5(3)(6)]: The Seriousness component of a proposed civil penalty assessment may range from $0 to $1750. The assessment shall depend upon whether the violation was one of performance requirements or adminisua[ive requirements. This NOV was written for a violation of performance requirements. In the case of a violation ofperformance requirements, the amount to be assessed for Seriousness shall also be based on the degree oC impact the violation had upon the public or environment. This NOV was written for the permittee's failure to conduct hydrologic monitoring and reporting in accordance with the permittee's DMG permit and the State's regulations. Some of the data cited in the NOV az not having been collected has subsequently been provided to DMG; however, a portion of the data was, due to equipment problems and other unspecified reasons, simply not obtained. Based upon comments from DMG Staff, however, I am inclined to believe that the failure of the permittee to obtain and therefore record this data did not significantly impact the public or the environment. The Seriousness component is therefore proposed to be set at $500. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments for "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. The permittee's failure to obtain all required water monitoring data, to provide recorded data to the DMG as required, and especially to promptly repair anon-functioning water monitoring device indicates that this NOV occurred az a result of a moderate degree of "negligence". The Fault component is therefore proposed to be set at $500. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: As this NOV has not yet been fully abated, no reduction of this assessment is proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore $1050.