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Reclamation, Mining and Safety and Mr. Keith Haley, Mr. Tay Tonozzi, Mr. Kurtis <br />Blunt and Mr. Tom Peterson representing Colowyo Coal Company. <br />Jim Stark provided background and detailed the nature of the violation including follow- <br />up measures that have been implemented to date. Mr. Kent Gorham also discussed <br />relative aspects of the design and performance failures as it related to this violation <br />Mr. Keith Haley discussed the events that led to the violation and the precipitation event <br />and conditions that caused the various structural failures on the mine site. In addition, <br />new design information was presented during the hearing which could not be thoroughly <br />or accurately reviewed during the course of the assessment conference. As a result, by <br />agreement of all parties present, the conference was extended until November 17, 2008 at <br />which time the conference was completed. <br />The proposed civil penalty originally determined by the Assessment Officer for CV- <br />2007-004 was: <br />History $0.00 <br />Seriousness $1250.00 <br />Fault $750.00 <br />Number of Days of Penalty Assessed 1 <br />Good Faith $0.00 <br />Total proposed penalty $2000.00 <br />After hearing this testimony and considering the evidence presented, I have come to the <br />following conclusions: <br />History <br />A $0.00 penalty is appropriate for history. <br />Seriousness <br />I believe that a violation did occur and under the seriousness category the level of <br />significant was appropriate. The storm event that occurred caused damage to drainage <br />channels and over-topping of the Prospect Pond embankment, even though the measured <br />amount of the storm was less than a 10-yr, 24-hr event. The resultant runoff caused <br />significant water and debris flows to cross Colorado State Highway 13. Potential impacts <br />to the public health and safety were clearly significant, fortunately, actual off-site impacts <br />were considered moderate as no public health impacts were reported. Therefore <br />assessment of $1250.00 is deemed to be appropriate. <br />Fault <br />There is no disputing that the pond failed to contain the precipitation event that was <br />recorded as being less than a 10-yr, 24-hr event. There also appears to be a record of <br />discussion concerning the hydrologic modeling surrounding the construction of this pond <br />and the contributing watershed. It appears that the operator was put on notice regarding