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The Division believes that the proposed SEP -- donation of $30,000 to the Costilla <br />County Water and Sanitation District for capital improvements, in lieu of paying <br />$15,000 of the penalty assessed -- is entirely appropriate under the Civil Penalty Policy. <br />The Division continues to support the use of SEPs in lieu of monetary penalties and <br />believes that the SEP proposed by Battle Ivfountain is fully consistent with the intent of <br />the State and federal water quality statutes. <br />The Division's Civil Penalty Policy does not require an actual nexus between the <br />violation and the project. It does, however, anticipate that the SEP will result in "an <br />identifiable benefit to water quality." Here, the Division is aware that the Sanitation <br />District is in need of funds to improve its existing facility, which discharges into Culebra <br />Creek. The Division firmly believes that this project will have direct positive effect on <br />water quality by providing the means to upgrade a facility that operates under a CDPS <br />permit. <br />The Di~zsion further believes that this case qualifies under the Civil Penalty <br />Policy for purposes of SEP offsets. Battle Mountain took all the necessary steps to <br />promptly come into compliance with the VI~QCA by working diligently with the Division. <br />The company has complied with the terms of the NOV-CDO and Amendment No. 1, and <br />is is compliance with the water quality standards for the Rito Seco ???, which aze <br />designed to protect the classified uses of the water body. Finally, the Division notes that <br />it did not offset the entire amount of the penalty with the SEP. <br />20. The Groups observed that the Order does not require Battle Mountain ~o publicly <br />disclose that its SEP is being undertaken in lieu of a civil penalty for violationst of the <br />WQCA. <br />The Groups coaectly state that this condition is contained in EPA's SEP Policy. <br />However, the Division, in its discretion, does not require such disclosure unde.; its Civil <br />Penalty Policy. This is not inconsistent with the Division's Policy, which requres that <br />the project "be primarily designed to benefit the environment rather than to be;tefit the <br />violator " That section of the Policy goes to the nature of the environmental project, and <br />anticipates that the project itself will not be designed so as to benefit the violator. The <br />Division believes that Battle Mountain's donation of capital to the Sanitation District is <br />"designed" to benefit the environment, rather than its own operations. <br />21. The Groups noted that Battle Mountain has reported violations of Amendment <br />One to the NOV with respect to sulfate limits at the treatment facility on October 21, 22, <br />and 23, 1999. <br />The exceedances noted by the Groups were reported during the treatment <br />facility's initial start-up period. Recognizing the standard difficulties associated with <br />initial operation of water treatment systems, paragraph (a.) of Amendment Nc_ 1 <br />specified that the effluent limitations set forth within that document were not ,e.pplicable <br />until fourteen days after start-up of the facility. Initiation of the fourteen day <-tart-up <br />period began on October 13, 1999. The treatment facility has not experienced effluent <br />10 <br />TT'd 6T~£T 00, 6 6ny 8S5£998£0£~XEj <br />