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<br />JUSTIFICATION OF SETTLEMENT AGREEh1ENT FOk <br />NOV C-92-013 <br />NOV C-92-013 was written for "failure to maintain sediment pond 15-Pi as <br />necessary to insure that discharge meets applicable standards of the Colorado <br />Water Quality Act and the NPDES permit, pursuant to Rules 4.05.2(7), <br />4.05.2(8), and 4.05.6(3)(a) and (b). A sample of water discharging from the <br />pond was collected by Dan Mathews on June 29, 1992, within one hour after a <br />15 - 20 minute precipitation event. On July 10, 1992 the Colorado Department <br />of Health determined the sample's settleable solids to exceed 40 ml/liter, as <br />compared to the permit standard of 0.5 ml/liter. NOV C-92-013 was issued by <br />Dan Mathews, Rec]amation Specialist, on June 29, 1992. <br />The penalty assessment proposed by the Division Assessment Officer was: <br />History $50.00 <br />Seriousness $750.00 <br />Fault $500.00 <br />TOTAL PROPOSED CIVIL PENALTY: $1,300.00 <br />htr. Greg Lewicki, P.E., representative for Trinidad Basin Mines (TBM), <br />presented an argument intended to demonstrate that the instantaneous runoff <br />from the June 29, 1992 precipitation event on the Trinidad Basin mine site had <br />exceeded the instantaneous flow resulting from 10-year 24-hour design <br />precipitation event. He asserted that this circumstance made the pond failure <br />permissible. I continued the September 11, 1992 assessment conference to <br />allow Mr. Lewicki to submit additional supporting evidence. htr. Lewicki <br />submitted additional information to the Division for review on October 19, <br />1992. The Division's Hydrology Task Force personnel reviewed Mr. Lewicl;i's <br />supplemental submittal but was not persuaded to concur with his opinion. Mr. <br />Lewicki has not persuaded me to disagree with the opinion of the Division's <br />hydrologists. <br />Regulation section 5.04.5(3)(d) allows the conference officer to assign a <br />Penalty reduction to reflect "Good Faith", if the permittee took <br />'extraordinary" efforts to abate the violation in the shortest possible time <br />before the abatement deadline. I did not find an adjustment for "good faith" <br />to apply in this case. <br />In conclusion, I propose to amend the penalty assessment for Notice of <br />Violation C-92-020, as follows: <br />History $50.00 <br />Seriousness $750.00 <br />Fault 5500.00 <br />Good Faith -0- <br />PROPOSED ADJUSTED CIVIL PENALTY: $1,300.00 <br />Doc. No: 9242E <br />JP/jP <br />