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Proposed Civil Penalty Assessment <br />Colowyo Coal Company L.P. / The Colowyo Mine <br />NOV CV-2008-003 <br />August 20, 2008 <br />Information reviewed: DRMS Inspection Reports (6/3/08; 7/23/08); DRMS NOV CV-2008-003 Form <br />(7/31/08); DRMS NOV Modification Notice (8/5/08); Letter from J. Sekulski to J. Stark (8/12/08); Memo <br />from J. Stark to D. Hernandez (8/18/08); Exh 7/Item 140/Fig 2 (5/25/07); Exh 7/Item 140/Fig 2 (7/7/08). <br />History [Rule 5.04.5(3)(a)]: <br />No NOVs have been issued at this mine during the 12 months preceding the issuance of this NOV. <br />The History component is therefore proposed to be set at $0. <br />Seriousness [Rule 5.04.5(3)(b)]: <br />The Seriousness component of a proposed assessment may range from $0 to $1750. The amount <br />proposed depends upon whether the violation was one of performance requirements or of <br />administrative requirements. This NOV was written for a violation of performance requirements. <br />In the case of a violation of performance requirements, the amount to be assessed for Seriousness <br />depends upon (1) the probability of the occurrence of the event which a violated standard is <br />designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of <br />area and impact on the public or environment. <br />(1) An event that the law and rules are designed to prevent (implementing a revision before <br />obtaining final approval) did in fact occur. A potential for non-compliance (exceedance of <br />pond effluent limits) also was created: pond designs for a 23-acre increase in the disturbed <br />area reporting to the pond were not approved prior to implementation of the revision. <br />(2) Extent is 2000 feet (construction of an unapproved 1300-foot ditch extension + construction <br />of an approved 700-foot ditch extension in an unapproved location). Duration is one day <br />(date of inspection). Actual impacts, plus potential hydrologic impacts, appear moderate. <br />The Seriousness component of this assessment is therefore proposed to be set at $750. <br />Fault [Rule 5.04.5(3)(c)]: <br />The fault component of a proposed civil penalty assessment may range from $0 to $1500. <br />Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations <br />that were the result of "negligence" may range from $250 to $750. Assessments for violations that <br />resulted from "intentional conduct" may range from $750 to $1500. <br />Failure to have obtained DRMS approval of Technical Revision 71 prior to extending the Section <br />16 Pond Ditch appears to have been the result of a moderate level of negligence. <br />The Fault component is therefore proposed to be set at $500. <br />Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: <br />This NOV has not yet been terminated. <br />Good faith credit is therefore not proposed at this time. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1250.