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Proposed Civil Penalty Assessment <br />Western Fuels-Colorado, LLC /The New Horizon Mine <br />NOV CV-2010-003 <br />July 27, 2010 <br />Materials reviewed: DRMS NOV CV-2010-003 (6/23/10); Sandy Brown memo of 7/9/10; Western Fuels <br />Letter received 7/12/10; Greg Lewicki e-mail of 7/23/10; Ross Gubka e-mail of 7/26/10. <br />History [Rule 5.04.5(3)(a)]: <br />NOV CV-2010-002 was issued on May 19, 2010, and terminated on June 11, 2010. The <br />associated penalty was paid on June 24, 2010. All associated appeal periods have now passed. <br />The History component is therefore proposed to be set at $50. <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) Topsoil sampling and testing as required did not occur. Spoil/subsoil testing and results <br />reporting appears to have also not occurred. <br />(2) It is not apparent that actual damage upon the public and/or environment occurred as a result <br />of the violations cited in the NOV. Nevertheless, failing to conduct approved topsoil testing, <br />spoil/subsoil testing, and reporting creates the potential to adversely affect reclamation. <br />The Seriousness component of this assessment is therefore proposed to be set at $500. <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 />All required topsoil sampling and testing did not occur. All required spoil/subsoil testing also <br />appears to have not occurred. This appears to be a moderately-high degree of negligence. <br />The Fault component of this assessment is therefore proposed to be set at $650. <br />Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: <br />This NOV has not as yet been terminated. <br />A good faith credit reduction is therefore not proposed at this time. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1200.