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JUSTIFICATION FOR PROPOSED SETTLEMENT AGREEMENT N04 C-85-012, TWENTYMILE COAL COMPANY The fact of the violation was not contested by the operator in the assessment conference. Civil penalty proposed by the Division staff was as follows: History $ 00.00 Seriousness 1,141.00 Fault 750.00 TOTAL ,89 .00 The violation consisted of two parts. The first part of the violation concerned the failure of the operator to analyze the mine discharge waters for all of the parameters required. The violation and civil penalty assessment were also based on the lack of any of the required analyses being on file for the fourth quarter of 1984. The second part of the violation was for failure of the operator to analyze water samples from the Area 2 Pit where mine wastes were to be placed into standing water. At the time of the inspection it was discovered that samples taken several months before did exist but had not been analyzed by the laboratory. As a result, data regarding baseline water quality of the water in the pit was not available early in the backfilling process to determine whether changes in water quality were occurring, and, in addition, since the samples had been stored for several months not all parameters could be analyzed. Seriousness The Division staff calculated seriousness by adding the seriousness of the two parts of the violation. Seriousness for the first part was calculated by determining the cost of analysis of parameters which should have been analyzed. Seriousness for the second part of the violation was calculated based on the degree to which enforcement was obstructed as a result of the analysis not being at the site early in the backfilling process. It is my belief that these two seriousness components are not additive. Had both of them been determined be moderately serious, one could easily have a situation where $875.00 was being added to $875.00 resulting in the maximum seriousness of $1,750.00. It is my belief that if each component of the violation was moderately serious then, in fact, the violation as a whole was moderately serious and the total seriousness should have been set at $875.00. What we have is a judgment by the Division staff that the first part of the violation was very low-seriousness and the second half was moderately serious. Based on this, I conclude that the total seriousness of the violation is moderate or related to the most-serious element of the violation. In addition, since the samples were actually taken but the failure was the analysis or them, I am reducing the civil penalty to $750.00 which is slightly less than the amount suggested by the Division of $875.00. The reason for this reduction from $875.00 is that we now, in fact, have the analysis, and the overall obstruction of enforcement can be seen to be reduced over that which appeared to be the case at the time of the inspection.