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<br />JUSTIFICATION OF SETTLEMENT AGREEMENT FOR <br />NOV C-92-020 <br />NOV C-92-020 was written for "failure to maintain sedimentaticr. pond 15-P11 to <br />provide adequate capacity to contain or treat the runoff or inflow ent?ring <br />the pond as a result of a 10-year, 2a-hour precipitation event". The primary <br />dewatering device of this pond was clogged, allowing no water to drain from <br />the pond. NOV C-92-020 ~das issued by Joseph Dudash, Reclamation Specialist, <br />on July 28, 1992. The situation was found to be in noncompliance with <br />regulatory section 4.05.6(3)(a). <br />The penalty assessment proposed by the Division Assessment Officer ~.aas: <br />History -0- <br />Seriousness Si50.00 <br />Fault 5500.00 <br />TOTAL PROPOSED CIVIL PENALTY: 51,250.00 <br />Mr. Greg Lewicki, P.E., representative for Trinidad Basin Mines (TBt4), stated <br />TBM's opinion that it would have been aporooriate to allow the operator to <br />unclog the outlet structure without the issuanc? of a notice of violation. <br />However, Mr. Lewicki did not refute the fdCt of the violation. I was not <br />persuaded by Mr. Lewicki's comments, and found the notic=_ of violation to have <br />been appropriately issued to TBM. Based upon the evident? pr?rented I found <br />the proposed assessment for History to be aopropriat2. I was persuaded, <br />however, that the proposed assessments far both Seriousness ana fault were <br />inappropriate. The emergency spillway ~,aas functional and the impoundment '.gas <br />not in danger of structural compromise. Further, Mr. L=~.+icki provided data to <br />demonstrate that the summer of 1992 has been characterized by abnermaily high <br />precipitation in the Trinidad area. Therefore. am proaesicg to decree<_2 the <br />arse r ment for the Seriousness ccmpenerr from ;TSJ to SE00, ar:c the assessment <br />for the Fault component from 55J0 tc 525C. <br />Regulation section S.Oa.S(3)(d) allows the confer <br />penalty reduction to reflect "Good Faith", if the <br />"extraordinary" efforts to abet=_ the violation in <br />before the abatement deadline. I did not find an <br />to apply in this case. <br />?nC? OfflCe'' t0 d5:lgn a <br />oermittee took <br />the shortest possib'.e time <br />adjustment for "good faith" <br />In conclusion, I propose to amend the penalty assessment for ~ICtic? o' <br />Violation C-92-020, as follows: <br />History -~ <br />Seriousnes> 55u0.00 <br />Fault 5250.OC <br />Good Faith -)- <br />PROPOSED ADJUSTED CI`/IL PENALr'~: Si50.00 <br />Doc. No: 9241E <br />