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SETTLEMENT AGREEMENT JUSTIFICATION NOV C-94-036 Notice of Violation C-94-036 was issued for "Failure to design, constrnct and maintain the Northwest Sediment Trap to provide for either a combination of principal and emergency spillways, or a single open channel spillway to safely pass a 25-year, 24hour precipitation event". Susan Burgmaier issued the NOV to Sun Coal Company from the office on December 1, 1994 based on her November 30, 1994 inspection. She explained that the NW sediment trap had a single closed channel spillway. Rules 4.05.9 (2) and 4.05.6 (3)(d) and (e) require impoundments to have an open channel spillway or two separate closed spillways. An impoundment is considered any structure that impounds water. Ms. Burgmaier explained that a similar NOV had been issued in May, 1994, but it was vacated on Bounds that it was a permit defect. Sun Coal Company had until July to submit a revision and until August to make the required modifications to the impoundment. A TR was submitted and subsequently approved on September 7, 1994. The solution was to reduce the flow going into the impoundment by removing the six lateral ditches. With the reduced flow ffie impoundment should have been within the design specifications. Three of the ditches were removed, weather precluded Sun Coal from removing the others. In November, additional calculations were made that showed the impoundment would still not be adequately sized even with all six Literal ditches removed. Sun Coal submitted another revision on December 1 with another pLm to bring the NW impoundmem into compliance. Bryan Archer and Mike Savage, representing Sun Coal Company, contested the NOV as expLuned in the January 4, 1995 letter to Mike Long requesting that the NOV be vacated. Their contention was that the impoundment was still a permit defect and Sun Coal was in the process of addressing it. Based on the information presented in the conference, I will uphold the NOV. Although the defect was being addressed, it was not resolved. On November 30, 1994 the NW impoundment was not in compliance wiffi the cited regulations. The proposed civil penalty was: History $100.00 Seriousness $100.00 Fault $250.00 Good Faith $0.00 Total $450.00 Seriousness I propose to reduce this to zero. As stated in the proposed penalty, there is no evidence of actual or potential damage.