2012-12-05_ENFORCEMENT - C2010089 (2)

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(1) Proposed Civil Penalty Assessment Western Fuels - Colorado, LLC / The New Horizon North Mine NOV CV- 2012 -006 — December 5, 2012 Materials reviewed: NOV CV- 2012 -006; 10/23/12 DRMS inspection report; Permittee's letter of 11/8/12. History [Rule 5.04.5(3)(a)]: One other NOV was issued within the last 12 months; it, however, is within its appeal period. The History component is therefore proposed to be set at $0. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed assessment may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance and/or administrative requirements. This NOV was for written for violations of performance requirements. In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of area and impact on the public or environment. Impacts to surface water quality may occur if ponds are not completed before operations begin. As actual impacts to water quality did not occur, Seriousness is based upon the probability of such impacts occurring. The size of the disturbance suggests a high probability of impacts if the site were subjected to measurable precipitation. However, given the month the inspection occurred, the geographic location of the site, and that this is a "dry" year in that area, the probability of impacts to water quality seems moderately -high, rather than high. (2) Actual impacts upon the public or environment did not occur. It is difficult to estimate the extent and duration of any such potential impacts. The Seriousness component of this assessment is therefore proposed to be set at $1000. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of "unavoidable" violations may range from $0 to $250. Assessments for violations that were the result of "negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. The permittee should have ensured the sediment pond was completed before commencing topsoil stripping operations. Failure to do suggests a high degree of negligence. The Fault component is therefore proposed to be set at $750. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: Abatement occurred earlier than required deadlines, especially Abatement Step #3, which was abated over two weeks ahead of the required deadline. The NOV was terminated 12/5/12. Good Faith Credit in the amount of $500 is proposed. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1250.