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Date: July 27, 2010 <br />To: NOV CV-2010-003 File <br />From: Daniel I. Hernandez, Assessment Officer I <br />Re: Justification for Amount of Proposed Civil Penalty <br />1 have reviewed the following materials associated with NOV CV-2010-003, issued on June 23, 2010 to <br />Western Fuels --Colorado's New Horizon Mine: <br />• Notice of Violation CV-2010-003, written by Marcia Talvitie <br />• Letter from Ross Gubka to Marcia Talvitie dated July 8, 2010 and received July 12, 2010 <br />• Memo from Sandy Brown to Dan Hernandez dated July 9, 2010 <br />• E-mail with attachment from Greg Lewicki to Dan Hernandez received July 23, 2010 <br />• E-mail with attachment from Ross Gubka to Dan Hernandez received July 26, 2010 <br />This NOV was written in three parts. <br />Regarding Part One of the NOV: <br />Western Fuels-Colorado (WFC) contends that four of the ten topsoil samples cited in the NOV were <br />collected on April 9, 2009 prior to TR-57 achieving Final Approval and should not be considered in the <br />NOV. As Ms. Brown states that TR-57 became Final on April 23, 2009, and as Rule 2.08.4(4) prohibits <br />operators from implementing TRs before Final Approval, I concur with WFC. Part One of the NOV should <br />therefore pertain to only the six topsoil samples collected by WFC after TR-57 received Final Approval. <br />Regarding PartTwo of the NOV: <br />DRMS contends that the New Horizon Mine permit, in the section "Topsoil Replacement -1998/1999 <br />Study Area - Non-Prime Farmland" (found on Permit Page 2.05.4(2)(d)-36 and dated November 2008), <br />requires WFC to analyze as a potential subsoil the suitability of Bench 1 material placed in the non-prime <br />farmland "Lloyd Property" in accordance with Table 2.05.4(2)(d)-1 of the current New Horizon Mine <br />permit. This table, entitled "Criteria for Evaluating Soil Suitability (Reproduced Table 2.04.9-2; Revised <br />with NRCS 2008)", is on Page 2.05.4(2)(d)-14, dated July 2008. DRMS contends that WFC failed to <br />analyze the Bench 1 material placed on the "Lloyd Property" in this manner. <br />WFC alternatively contends that "no violation should be placed on this item" as "the sampling of Bench <br />1 on the Lloyd Property falls under the spoil test parameters". Mr. Lewicki expanded upon WFC's <br />position in Mr. Lewicki's letter of July 6, 2010 to WFC (a copy of which was provided to DRMS in <br />response to this NOV). Mr. Lewicki contends that the purpose of Table 2.05.4(2)(d)-1 is "to determine <br />all topsoil sampling at the mine", and that "there is a specific plan where the sampling of Bench 1 <br />material is addressed as spoil". A telephone conversation between me and Dan Mathews of DRMS on