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»lrrii~rl-iin«ii~ SETTLEMENT AGREEMENT JUSTIFICATION NOV C-93-026 Assessment Conference Summary NOV C-93-026 was issued by Susan Morrison of the Division for "[F]ailure to design, construct, and maintain sediment control measures to minimize erosion as necessary to provide protection for topsoil and vegetation, and failure to retain sediment within disturbed areas". The NOV cited two storage pad areas where coal had been pushed over containment berms or otherwise impacted reclaimed areas, and various locations along the coal conveyor where coal spillage had occurred. Ms. Morrison showed slides of coal spillage along the conveyor belt, and small amounts of coal immediately outside of containment berms adjacent to the Northwest area grizzly pad and the east side of the shop/warehouse coal storage pad. Also, one slide depicted coal fines which had been deposited by drainage from the shop/warehouse area onto an adjacent reclaimed area. Cooly material appeared to have filled in an old ditch on the reclaimed area, and over-topped, resulting in a strip 40 to 50 feet long by 5 to 10 feet wide being covered by coal residue several inches thick. The Operator representatives conceded that a small amount of coal had been unintentionally pushed over the storage pad containment berms in the course of snow removal operations, and that some runoff from the coal pad area had crossed onto the reclaimed area. They also acknowledged that coal spillage had occurred along the conveyor belt, but they argued that the issue of conveyor belt spillage and cleanup had been addressed previously by P&M and the Division, and that the Division had authorized one time cleanup of coal fines at final reclamation as opposed to continuous cleanup or containment of fines along the belt on the steep, heavily wooded slope. After reviewing the Division's inspection report of February 2, 1982, I believe the Operator is justified in this assertion, and will recommend that the NOV be modified to exclude reference to coal conveyor spillage. Modifications to the conveyor spillage containment/cleanup plan may be warranted, but issuing an NOV for conditions specifically reviewed and authorized by the Division is not appropriate. Fact of Violation I find that portions of the NOV relating to sediment control and protection of topsoil and vegetation associated with snow removal operations and runoff from coal storage pads were properly written, and that a violation did occur. I find that the portion of the NOV relating to spillage of coal along the conveyor belt was improperly issued, due to prior approval by the Division. The permit may be defective in this regard, and modifications to the plan may be warranted, but enforcement is inappropriate in this instance. The penalty assessment in the settlement agreement reflects a zero