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SETTLEMENT AGREEMENT JUSTIFICATION NOV C-95-005 Erica Crosby issued Notice of Violation C-95-005 on March 29, 1995 for "Failure to place topsoil on a stable surface within the permit area". The NOV applied to a topsoil stockpile adjacent to the West Pit Pond. The NOV was subsequently modified on April 6, 1995 and May 5, 1995 to include two slides within the West Pit Pond for failing to have stable perimeter slopes. Ms. Crosby cited Rules 4.06.3(2) and 4.05.9(6) and CRS 34-33-120(2)(e) and 120(2)(h)(I). An assessment conference was held on June 12, 1995. In attendance were Erica Crosby and Larry Routten representing the Division and Rich Atkinson, Jim Kieger and Mark Gray representing Colowyo Coal Company. Ms. Crosby explained that during her March 28 and 29 inspection she observed a portion of the topsoil stocl~ile adjacent to the West Pit Pond had slid into the pond. The displacement was approximately three feet. The abatement required Colowyo to remove the topsoil stockpile from the unstable area and to repair the West Pit Pond. On two subsequent inspections Ms. Crosby observed instability on the inside and perimeter slopes of the West Pit Pond. The NOV was modified to include these small slides. Modifications to the abatement required the installation of visual monitoring points and the submittal of a revision to address the slides and springs associated with the West Pit. in June, 1994 Ms. Crobby said hillside instability had been detected in an undisturbed area near the base of the West Pit fill. In response to stability concerns and the presence of springs, Colowyo installed lateral french drains. However, Ms.Crosby said the slides this year could be connected to the stability problems noted last year. The Division was concerned 'there could be additional movement in the area that could further jeopardize the pond and the nearby West Pit fill. The monitoring detected a total of almost twenty-five feet of movement at the topsoil stockpile and seven feet of movement at the springs. No movement was detected on the east side of the pond. Final abatement of the NOV was discussed prior to the conference. Colowyo Coal Company had requested the NOV to be vacated in a letter to Mike Long dated April 20, 1995. The request was denied by the Division Director. Colowyo pursued their request for vacation in the conference. They felt the slide should be treated as a maintenance issue. When the topsoil pile was constructed the area was stable. In fact, because of the common occurrences of slides within this part of northwest Colorado, Colowyo and CTL/ Thompson carefully evaluated all possible locations for pond placement. There was no indication of instability in the chosen spot. Photographs prior to pond construction were presented. Last summer when some springs and associated instability were observed near the base of the West Pit Fill, Colowyo requested CTL/Thompson, Inc. (Consulting Geotechnical and Materials Engineers) to develop preventive measures. Based on the CTL/Thompson report lateral french drains were constructed. They do not feel the springs identified last year are associated with the instability of the topsoil pile or the pond slope instability observed this _year. Based on the information presented in the conference, I will uphold the NOV. Clearly the topsoil pile was on an unstable surface. However, the information presented by Colowyo will affect the civil penalty.