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August 3, 1994 -2- <br />Colorado River. As the area disturbed above Pond 11 appears <br />to be an area of less than four acres where only soil and rock <br />(rather than coal, coal refuse or hazardous chemicals) <br />existed, it would appear that the impacts to the quality of <br />the Colorado River would have been limited to some increase in <br />total suspended solids. Given the volume of the Colorado <br />River, it appears that the potential impact to the public and <br />environment, in terms of area and duration, would have been <br />low. <br />Considering the low probability of a non-discharge compliance <br />event occurring and a low potential for environmental harm had <br />the discharge occurred, I believe an amount of $250 for <br />"Seriousness" is appropriate. <br />3. Fault (5.04.5(3)(cl): $750 <br />With regard to the reasons for this violation occurring, it is <br />apparent that during the construction of Sediment Pond 11, the <br />operator received Federal Cessation Order No. 94-020-370-001 <br />(issued 6/3/94). To effect compliance with this Order, it is <br />apparent that the operator began disturbing Cameo Borrow Area <br />No. 2, which drains into Pond 11. Because the pond was not <br />completed prior to the borrow area being disturbed, a <br />violation of Rule 4.05.6(1)(a) appears to have occurred. <br />At the outset, it would appear that the operator was put into <br />the situation of creating a State violation by having to abate <br />a Federal Cessation Order. However, had the operator secured <br />additional equipment to complete the sediment pond during <br />abatement of the Federal Order, it is possible this violation <br />might not have occurred. Further, the Federal CO and NOV <br />Termination Notices indicate the operator completed the <br />Federal Order abatement work on 6/29/94. This same day, the <br />Division conducted an inspection of the mine site, and <br />directed the operator to complete the final elements of the <br />sediment pond as soon as possible. Rather than immediately <br />beginning the work to finish the sediment pond, Powderhorn <br />personnel apparently chose to take some time off during the <br />first week in July, thereby making a conscious decision to <br />allow the pond to remain unfinished, and causing the violation <br />to occur. <br />Though the operator was aware that leaving the pond unfinished <br />could become a violation, it appears that the operator's <br />efforts to comply with the Federal Cessation Order contributed <br />to some degree to the situation. This suggests that the <br />degree of fault should be determined to be the lowest level of <br />intentional conduct, rather than something higher. As such, <br />