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., <br />Fact of Violation <br />I find that a violation did occur. Both parties concur that the pond spillway <br />as it existed on December 19, 1991 did not comply with the requirements of <br />Rule 4.05.6(3)(d), which had been revised in January, 1991. <br />History <br />Mr. Lewicki questioned the inclusion of NOV C-91-024 in the assessment for <br />history, since the NOV was still under appeal. Rule 5.04.5(3)(a)(ii)(b) <br />states that past violations shall not be considered for purposes of penalty <br />assessment if the "notice or order based on such violation is the subject of <br />pending administrative or judicial review ...". Since the subject NOV is <br />currently pending administrative review by the Colorado Mined Land Reclamation <br />Board, I conclude that NOV C-91-024 should not be considered in the assessment <br />for history. I propose that the history component be reduced from $200.00 to <br />$150.00. <br />Seriousness <br />I propose to reduce this component to $0.00. Both the operator and the <br />Division representatives indicate that the sediment pond is oversized for the <br />design storm event, and the pond has not discharged since it was constructed <br />over 10 years ago. In the event that a spillway failure were to occur, the <br />potential for significant harm is minimized by the fact that the Fruita site <br />is of limited disturbed acreage and is located several miles from the nearest <br />perennial stream. Any runoff form the site would enter an adjacent arroyo, <br />which runs for several miles through a relatively barren Mancos Shale <br />landscape. Storm intensities sufficient to cause pond discharge or embankment <br />failure would very likely result in flooding and highly turbid flows in local <br />arroyo systems, such that sediment contribution from the mine site would be of <br />insignificant consequence to water quality of the receiving stream. <br />Fault <br />I concur with the proposed assessment of $250.00 for Fault. Although the <br />failure to implement the required modifications was apparently not a result of <br />knowing intent and was due to miscommunication, a prudent operator would have <br />insured that the appropriate measures be taken to comply with the revised <br />regulation. The failure of the operator to clarify any misunderstandings and <br />insure compliance represents a certain amount of negligence. <br />Good Faith <br />The violation has not been fully abated, and therefore a good faith reduction <br />cannot be considered. <br />Amended Civil Penalty <br />History: $150.00 <br />Seriousness: $0.00 <br />Fault: $250.00 <br />Good faith: $0.00 <br />TOTAL $400.00 <br />DTM/ern 1316E <br />-2- <br />