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Proposed Civil Penalty Assessment Blue Mountain Energy, Inc/ The Deserado Mine NOV CV-2002-004 April 18, 2002 Materials reviewed: DMG NOV form (3/27/02) ;Grand Junction Laboratories water quality analysis (4/3/02); DMG inspection report (4/10/02) ; DMG NOV Modification form (4/16/02); 2 e-mail messages from Dan Mathews (4/17/02). Permittee did not supply any comments. History [Rule 5.04.5(3)(a)]: One NOV has been issued to this permittee within [he twelve months preceding the 3/27/02 issuance date of this NOV. The History component is therefore proposed to be set at $50. Seriousness [Rule 5.04.5(3)(6)]: The Seriousness component of a proposed assessment may range from $0 [o $1750. The amount proposed 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 occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of area and impact on the public or environment. (1) This NOV was written for failure to maintain a pond spillway culvert. Anon-compliant pond discharge might have occurred from this lack of maintenance. An analysis of the pond's discharge at the time of [he inspection indicated the discharge was in compliance; however, the pond's inflow rate was low (snowmelt). Had, instead, a rainfall event provided the pond inflow, the pond water might have been more turbid, and the pond discharge non-compliant. The probability of this non-compliant discharge occumng, however, is difficult to estimate. (2) The actual impact upon the environment resulting from this violation is zero. Had rainfall occurred while the culvert leak remained umepaired, anon-compliant discharge might have reached the White River. The impact of this event, however, is difficult to estimate. The Seriousness component of this assessment is therefore proposed to be set at $250. 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 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. The permittee had inspected the pond on 12/27/01, and found no problems, The permit[ee inspected the pond again a week before the 3/26/02 DMG inspection, and again found no problems. It appears, therefore, that [his violation was the result of a low degree of negligence. The Fault component is therefore proposed to be set at $250. Good Faith in Achieving Compliance [Rule 5.04.5(3}(d)]: The NOV was abated during the inspection. Good faith credit in the amount of $300 is proposed. The Total Proposed Civil Penalty Assessment for this NOV is therefore set a[ $250.