2008-09-24_ENFORCEMENT - C1981019 (2)

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Proposed Civil Penalty Assessment Colowyo Coal Company L.P. / The Colowyo Mine NOV CV-2008-004 September 24, 2008 Information reviewed: DRMS Inspection Report (8/13/08); DRMS NOV CV-2008-004 Form (8/26/08); DRMS/Colowyo RN5 adequacy review and response memoranda (8/20/07; 10/4/07; 12/12/07; 1/7/08; 3/20/08; 5/13/08); Colowyo letter (8/19/08); DRMS memo (9/18/08); verbal communication with J. Stark. History [Rule 5.04.5(3)(a)]: NOV CV-2008-003 was issued on 7/23/08; however, the appeals periods have not yet expired. The History component is therefore proposed to be set at $0. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed assessment may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance requirements or of administrative requirements. This NOV was written for a violation of performance requirements. In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of area and impact on the public or environment. (1) Several events occurred that the law and rules are designed to prevent, the most significant being the erosion from a disturbed area during a <10-yr, 24-hr rain event that caused rock, dirt and debris to flow into Prospect Pond, which clogged the pond's primary spillway, leading to the flow of water and sediment over the embankment and onto SH 13 and adjacent property. (2) Extent is approximately 148 acres, representing the Prospect Pond, the disturbed area without alternate sediment control that reports to the pond, and offsite impact area. Duration is one day. Actual public and environment impact was moderate; potential impacts were significant. The Seriousness component of this assessment is therefore proposed to be set at $1250. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations that were the result of "negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. The Division warned the permittee of this potential problem in its RN5 adequacy letter of August 20, 2007. These violations thus appear to have occurred as a result of a high level of negligence. The Fault component is therefore proposed to be set at $750. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: This NOV has not yet been terminated. Good faith credit is therefore not proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $2000.