2013-05-16_ENFORCEMENT - C2010089

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Proposed Civil Penalty Assessment Western Fuels - Colorado, LLC / The New Horizon North Mine NOV CV- 2013 -003 — Issued April 5, 2013 Materials reviewed: NOV CV -2013 -003; 3/29/13 DRMS inspection report; Permittee's letter of 4/10/13. History [Rule 5.04.5(3)(a)]: Two NOVs were issued within the 12 -month period preceding the date of issuance of this NOV. The History component is therefore proposed to be set at $100. 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. (1) The rules cited are designed to prevent surface coal mining and reclamation operations from occurring without first being permitted. This disturbance was not permitted at the time of the Division's 3/29/13 inspection. As such, an event that the violated standards were designed to prevent did in fact occur. (2) Extent of the disturbance is approximately one acre. Duration is unknown, as it is not certain when the disturbance was first created. Impacts upon the public do not appear to have occurred, nor do they appear likely to occur. The disturbance was unapproved at the time of NOV issuance, but is now permitted and remains as it was at the time of the NOV issuance; actual damage upon the environment therefore seems moderately small. 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. The permittee should have ensured the disturbance cited in the NOV was permitted by DRMS before the disturbance was created. Failure to have done so 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 two weeks earlier than required. Good Faith Credit in the amount of $500 is proposed. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $850.