2012-12-05_ENFORCEMENT - C2010089 (3)

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Proposed Civil Penalty Assessment Western Fuels - Colorado, LLC / The New Horizon North Mine NOV CV- 2012 -007 — December 5, 2012 Materials reviewed: NOV CV- 2012 -007; 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 violations of performance and administrative 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. (1) As topsoil was stripped during a very windy day, it appears that the event (loss of topsoil due to wind erosion) that the statutes and rules are designed to prevent did in fact occur. (2) The amount of topsoil lost to wind erosion appears small. The lost topsoil appears to have remained within the permit area. Damage to the public does not appear to have occurred. In the case of a violation of administrative requirements, the amount assessed for Seriousness depends on the extent to which enforcement was obstructed by the particular violation. DRMS was unable to verify compliance with Section 2.05.6(1) of the DRMS permit due to a copy of the CDPHE /APCD Compliance Order not being on hand during the 11/23/12 DRMS inspection. The Seriousness component of this assessment is therefore proposed to be set at $500. 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. Rule 2.05.6(1) requires permittees to have copies of APCD permits /approvals at their mines. Rule 4.06.2(5) suggests that topsoil stripping should have been postponed to a less windy day to prevent loss of topsoil due to wind erosion. It therefore appears a moderate degree of negligence occurred. The Fault component is therefore proposed to be set at $500. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: Abatement occurred earlier than required deadlines. The NOV was terminated effective 11/5/12. Good faith credit in the amount of $250 is proposed. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $750.