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Justification for Proposed Settlement Agreement for NOV C-99-007 The assessment conference was conducted via telephone conference call at the request of Mr. Jay Mayberry, representing Powderhorn Coal Company (PCC). The facts of the violation were not contested by PCC. A question had been raised by PCC in September, regarding the analysis of Total Suspended Solids (TSS) by the Division. Grand Junction Labs analyzed the specimen for the Division with a result of l64 mg/I TSS. PCC was found in violation for exceeding its permitted limit of 70 mgll TSS. PCC had an independent laboratory analyze its split specimen. CT&E Labs initially reported a result of 71 mg/1. Dan Mathews requested a recheck analysis by Grand Junction Labs, which reported recheck results of 126 mg/1 and 205 mg/1. Grand Junction Labs believes that this specimen is difficult to analyze because of its grit size which approximates the required filter size closely. Grand Junction Labs recommended analysis of an increased sample volume to remedy the problem. Mr. Mayberry reported that CT&E also encountered difficulty, but recommended repetitive analysis and averaging to address the problem. CT&E performed five analyses, which averaged 85 mg/l. Under either method I found the results to support the issuance of the NOV to PCC by Dan Mathews for exceeding the 70 mg/l TSS permit limit. Dan Hernandez, acting as the staff Assessment Officer proposed a civil penalty as follows: History $ -0- Seriousness $ 500 Fault 500 $1,000 During the assessment conference, Mr. Mayberry, representing Powderhorn Coal Company, indicated that PCC considered the Seriousness to be minimal. In my opinion Dan Hernandez reflected an opinion of minimal environmental seriousness in proposing an assessment of only $500.00. I was not persuaded to reduce the Seriousness component. Mr. Mayberry also requested adjustment of the assessment of $500.00 for Fault. Dan Hernandez believed the situation reflected medium level "Negligence" and proposed the applicable $500.00 assessment. Mr. Mayberry commented that PCC was hit by an intense precipitation event, which necessitated cleaning of culverts, reinforcing of ditches and bridges, repair to other ponds, etc. With [heir reduced staffing reflecting cutbacks in production, PCC prevented significant damage to the environment by prioritizing its efforts. Dan Mathews concurred with Mr. Maybeny's observations. I was persuaded to reduce the assessment component for Fault. I propose an adjusted assessment for Fault of $250.00, reflecting low level "Negligence" (lack of Diligence). Mr. Mayberry requested that I consider a reduction to reflect "Good Faith" by PCC. PCC abated the violation in a timely manner. They also performed admirably in controlling other potential environmental impacts caused by the extreme August 11, 1999 storm event. However, the regulations require that the efforts be "Extraordinary" or unusually expedient. In my opinion, while PCC performed admirably in abating this NOV, it's actions did not meet the required