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J <br />4 <br />JUSTIFICATION OF SETTLEhIE:NT AGREEMENT FOR <br />NOV C-92-021 <br />NOV C-42-021 was written for "failure to maintain the principal spillways of <br />permanent impoundments 15-P1, 15-P2, 15-P20 and 15-P17". NO'1 C-92-021 was <br />subsequently mcdified to include permanent impoundment 15-P8. The primary <br />dewatering device of each pond was clogged, allowing no water to drain from <br />the pond. NOV C-92-021 was issued by Joseph Dudash, Reclamation Specialist, <br />on July 28, 1992. The situation was found to be in noncompliance with <br />regulatory section 4.05.9(1)(e). <br />The penalty assessment proposed by the Division Assessment Offic=_r was: <br />History -0- <br />Seriousness 3750.00 <br />Fault 3500.00 <br />TOTAL PROPOSED CI`/IL PENALTY: 31,250.00 <br />Mr. Greg Lewicki, P.E., representative for Trinidad Basin Mines (TBM), stated <br />TBM's opinion that it would have been appropriate to allow the operator to <br />unclog the outlet structures without the issuance of a notice of violation. <br />In this instance an operator's representative had not accompanied Mr. Dudash <br />during his inspection. However, Mr. Le~aicki did not refute the fact of the <br />violation. I was not persuaded by Mr. Le'.+icri's comments, and found the <br />notice of violation to have been appropriately issued to TBM. °ased upon the <br />evidence presented I found the prcposed assessment for History to be <br />appropriate. I ,.vas persuaded, however, that the proposed assessments for both <br />Seriousness and Fault ~dere inappropriately high. The emergency spillways ~aer2 <br />functional and none of the impoundments .yore in danger of structural <br />compromise. Further, Mr. Le~.vicki providee data to demonstrate rnat the summer <br />of 1592 has been characterized by abnormally nigh pr=_cipitation in the <br />Trinidad area. Therefore, I am proposing to decrease the assessment for the <br />Seriousness component from 3750 tc 5500, and the assessment fcr the Fault <br />component from 3500 to 3250. <br />Regulation section 5.04.5(3)(4) allows the conference officer to assign a <br />penalty reduction to reflect "Good Faith", if the permittee took <br />"extraordinary" effort; to abate the violation in the shortest oo r ible time <br />before the abatement 4eadline. I did not find an adjustment for "good faith" <br />to apply in this case. <br />In conclusion, I pr~0052 t0 amend the Oenaita dS5255ment for NCti~e Of <br />Violation C-92-021, as follows: <br />4istory -0 <br />Seriousness 5:00.00 <br />Fault 5250.00 <br />Good Faith -~- <br />?ROPOSED ACJUSTED CI`/IL P5.`1ALT'!: 375J.GC <br />DoC. NO: ?2ulF <br />