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<br /> <br />JUSTIFICATION OF SETTLEMENT AGREEMENT FOR <br />NOV C-92-020 <br />NOV C-42-020 was written for "failure to maintain sedimentation pond 15-P11 to <br />provide adequate capacity to contain or treat the runoff or inflow ent?ring <br />the pond as a result of a 10-year, 24-hour precipitation event". The primary <br />dewatering device of this pond was clogged, allowing no water to drain from <br />the pond. NOV C-92-020 was issued by Joseph Dudash, Reclamation Specialist, <br />on July 28, 1992. The situation was found to be in noncompliance with <br />regulatory section 4.05.6(3>(a). <br />The penalty assessment proposal by the Division Ass?ssment Officer was: <br />History -0- <br />Seriousness 5750.00 <br />Fault 5500.G0 <br />TOTAL PROPOSED CIVIL PENALTY: S1,Z50.00 <br />Mr. Greg Lewicki, P.E., repre52ntative 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 structure without the issuance of a notice of violation. <br />However, Mr. Lewicki did not refute the 'act of the violation. I was not <br />persuaded by Mr. Lewicki's comments, and found the notice of violation to have <br />been appropriately issued to TBM. Basel upon the evidence presented I found <br />the proposed assessment for History to be appropriate. I was persuaded, <br />however, that the proposed assessments for both Seriousness and fault were <br />inappropriate. The emergency spillway .vas functional and the impoundment .vas <br />not in danger of structural compromise. Further, Mr. Lai.+ic'<i provide: data to <br />demonstrate that the summer of 1492 has teen characterized by abnormally high <br />precipitation in the Trinidad area. Thor?fora, i am prooosir.a to decrzas? the <br />asszssmer,t for the Seriousness component 'rpm S'SJ to 55J0, anc the assessment <br />for the Fault component from 5500 tc 5250. <br />Regulation section S.Oa.S(3)(d) 3110w5 the COnf?r?nC? CffiC?~ t0 dSStgn d <br />penalty reduction to reflect "Good Faith", if the permittee took <br />"extraordinary" effOrtS to abate the violation in the shortzst possib'.e time <br />before the abatement deadline. I did not find an adjustment for "good faith" <br />to apply in this cast. <br />In ccnclusicn, I proposz to amend the penalty arzr ment for Notice of <br />'liolation C-92-020, as follows: <br />History -C <br />Seriousness 5500.OG <br />Fault s250.CC <br />Good Faith -0- <br />PROPOSED ADJUSTED CIVI'_ PENAL'(: Si50.OC <br />Doc. Nc: 9241E <br />