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(1) <br />Proposed Civil Penalty Assessment <br />Western Fuels - Colorado, LLC / The New Horizon North Mine <br />NOV CV- 2012 -006 — December 5, 2012 <br />Materials reviewed: NOV CV- 2012 -006; 10/23/12 DRMS inspection report; Permittee's letter of 11/8/12. <br />History [Rule 5.04.5(3)(a)]: <br />One other NOV was issued within the last 12 months; it, however, is within its appeal period. <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 and/or administrative <br />requirements. This NOV was for written for violations 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 />Impacts to surface water quality may occur if ponds are not completed before operations <br />begin. As actual impacts to water quality did not occur, Seriousness is based upon the <br />probability of such impacts occurring. The size of the disturbance suggests a high probability <br />of impacts if the site were subjected to measurable precipitation. However, given the month <br />the inspection occurred, the geographic location of the site, and that this is a "dry" year in that <br />area, the probability of impacts to water quality seems moderately -high, rather than high. <br />(2) Actual impacts upon the public or environment did not occur. It is difficult to estimate the <br />extent and duration of any such potential impacts. <br />The Seriousness component of this assessment is therefore proposed to be set at $1000. <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 />The permittee should have ensured the sediment pond was completed before commencing topsoil <br />stripping operations. Failure to do 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 />Abatement occurred earlier than required deadlines, especially Abatement Step #3, which was <br />abated over two weeks ahead of the required deadline. The NOV was terminated 12/5/12. <br />Good Faith Credit in the amount of $500 is proposed. <br />The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1250. <br />