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<br />.Tustification for Proposed Settlement Agreement for NO V C-99-002 <br />This NOV was written for off-site blasting damage due to fly rock. Western Fuels-Colorado <br />(WFC) had self reported the violation. The fact of the violation was not contested by WFC. Fly <br />rock had left the permit area due to a bench failure which had rendered a comer blast hole <br />inadequately confined. The hole had been loaded prior to the failure and it was nut pnident to <br />deactivate the hole. WFC had effectively prevented public exposure to [he hazard. However, fly <br />rock did cause damage to a building and a data recorder owned by the Nucla Sanitation District <br />and located on an adjoining property. The staff Assessment Officer proposed a civil penalty as <br />follows: <br />History $ -0- <br />Seriousness $1,250 <br />Fault $ 250 <br />$1.500 <br />During the assessment conference, Mr. Gubka, representing WFC, indicated that no impact had <br />resulted to the environment as a result of the off-site blasting damage suffered by the Nucla <br />Sanitation District. Operation of the facility had not been significantly effected. Specifically, no <br />upset or effluent water quality excursion had occurred in the operation of the treatment facility as <br />a result of the fly rock damage. The damaged recorder has been replaced and the damaged <br />building has been repaired to the Sanitation District's satisfaction. <br />Mr. Gubka reported that upon discovering the bench failure, WFC had considered [he possible <br />resolutions. It was decided that it would be too hazardous to both employee safety and the <br />environment to attempt to defuse the blast hole. However, the adjoining public access was <br />blocked to prevent hazard to the public. The road at risk is a one lane dirt drive serving one <br />adjacent property owner. WFC personnel physically blocked the road during the shot. To <br />reflect my opinion that WFC had eliminated public exposure, I propose to reduce the assessment <br />for Seriousness from $1,250 to $750, the mid-range assessment for "Low/Modera[e" <br />Seriousness. <br />Mr. Gubka also documented that this blast, the 412th shot fired since WFC assumed control of <br />the New Horizon mine operation, was the first to experience any bench failure problem. Further, <br />he reported that the 25 shots detonated subsequent to the violation incident have been uneventful. <br />Mc Gubka indicated that this bench failure represents an unavoidable occurrence. Based upon <br />the length of record without incident, I am persuaded that this apparently anomalous bench - <br />failure did constitute an "unavoidable" occurrence at the New Horizon mine. Therefore, I am <br />proposing to reduce the assessment for "Fault" from $250 to $0. <br />Mr. Gubka further comtnented that WFC believed that it's actions in limiting exposure of the <br />public and repairing the off site damage warranted consideration fora "good faith" reduction in <br />the assessment for NOV C-99-002. I concurred that WFC's proactive actions were laudable and <br />effective in removing the public from exposure to hazard. I further recognize that WFC has been <br />forthcoming and timely in its abatement of the off-site damages resulting from its loss of 11y rock <br />