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Proposed Civil Penalty Assessment <br />Western Fuels-Colorado, LLC / The New Horizon Mine <br />NOV CV-2010-002 <br />June 18, 2010 <br />Materials reviewed: DRMS Inspection Report (5/3/10); DRMS NOV CV-2010-002 (5/19/10); US Postal <br />Service Return Receipt (5/21/10); DRMS NOV Termination Notice (6/11/10); DRMS Staff E-mail of <br />6/17/10. Comments from the permittee were limited to those accompanying Minor Revision MR-76. <br />History [Rule 5.04.5(3)(a)]: <br />It has been more than one year since the last non-vacated NOV was issued to this permittee. <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) Rule 4.15.1(2) is designed to prevent unapproved revegetation. As the permittee used an <br />unapproved seed mix, the event that Rule 4.15.1(2) is designed to prevent did in fact occur. <br />(2) Use of the unapproved seed mix occurred once, in September 2009. According to DRMS <br />Staff, the areal extent of the unapproved seeding is 42.2 acres, which is somewhat large. <br />There appears, however, to be no adverse impact upon the public or the environment, as the <br />shrubs found in the location of the violation were previously recommended by DRMS staff. <br />The Seriousness component of this assessment is therefore proposed to be set at $250. <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 />This violation could have been avoided had the permittee ensured that the seed mix used in <br />September 2009 was in fact approved. Failing to do so suggests a moderate degree of negligence. <br />The Fault component of this assessment is therefore proposed to be set at $500. <br />Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: <br />The permittee received the NOV on 5/21/10, and submitted MR-76 to DRMS on 5/27/10, within 6 <br />days of receiving the NOV and 4 days ahead of the 6/1/10 abatement date. <br />A good faith credit reduction is therefore proposed to be set at $250. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $500.