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Proposed Civil Penalty Assessment <br />Colowyo Coal Company L.P. / The Colowyo Mine <br />NOV CV-2010-004 - September 16, 2010 <br />Information reviewed: DRMS Inspection Report (8/18/10); DRMS NOV CV-2010-004; Colowyo Coal Co comments <br />(9/3/10); memo from J. Stark to D. Hernandez (9/15/10) <br />History [Rule 5.04.5(3)(a)]: <br />No NOVs have been issued at this mine during the 12 months preceding the issuance of this NOV. <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 proposed depends <br />upon whether the violation was one of performance requirements or of administrative requirements. This NOV was <br />written fora violation of performance requirements. <br />In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) <br />the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration <br />and extent of the potential or actual damage in terms of area and impact on the public or environment. <br />(1) The pond and ditch rules are intended to ensure the treatment of disturbed area runoff to applicable water <br />quality standards. The permittee's failing to have constructed sections of three ditches as approved, as well as <br />failing to have maintained a pond, has created a high probability that the mine's sediment treatment system <br />will not: function as designed. <br />(2) The extent of this violation is 1200 feet of the North Tributary of the East Pit Ditch, 1100 feet of the Final East <br />Pit Ditch, 1500 feet of the Taylor Tributary Ditch, and the primary spillway of the West Taylor Pond. Impact <br />upon the public and environment nevertheless seems small. <br />The Seriousness component of this assessment is therefore proposed to be set at $750. <br />Fault [Rule 5.04.5(3;)(c)]: <br />The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of <br />"unavoidable" violations may range from $0 to $250. Assessments for violations that were the result of <br />"negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" <br />may range from $750 to $1500. <br />Designs of ponds and ditches must reflect actual topography. Ponds and ditches must subsequently be built as <br />approved. Should design changes be needed, those changes should be approved pre-construction. DRMS has a long <br />history of nevertheless allowing permittees to submit appropriate post-construction design changes to ponds and <br />ditches so that permittees may update their permits for "field-fit" changes. That none of this happened in this case, <br />and that a pond was also improperly discharging at the time of the inspection, suggests a high degree of negligence. <br />The Fault component is therefore proposed to be set at $750. <br />Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: <br />Colowyo is working with the Division on the abatement of this NOV. Design plans are being evaluated and <br />Colowyo has prepared a schedule. A Good Faith Credit reduction might be granted at Assessment Conference after <br />the violations have been abated and the NOV terminated; however, the NOV has not yet been terminated. <br />Good faith credit is therefore not proposed at this time. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1500.