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July 21, 1995 Page 3 which had not been previously stripped of topsoil. While the area is small, topsoil contamination is considered a serious matter. Based upon observations during the inspection on July 12, 1995, it appears that the violation was properly issued. Penalty It appears that MCC disagrees with the Division regarding the facts of the violation, which is most appropriately handled during the assessment conference. The Assessment Officer bases the amount of the penalty on the information available at the time of his or her review. Rule 5.04.3(1) allows the operator to submit, within 15 days of service of a notice of violation, written information about the violation to the Division. The Assessment Officer is required to consider this information in determining the facts surrounding the violation and the amount of the civil penalty. This information was not received until June 28, 1995, and we must notify the operator of the amount of the proposed civil penalty within 30 days of service of a notice of violation. The $2,250.00 is a proposed penalty. It does not become final until the penalty is fixed which would occur if an operator does not request an assessment conference or following an assessment conference if one is held at the request of the operator. During the assessment conference MCC is granted an opportunity to discuss the facts of the violation. In addition, I would urge you to discuss the proposed civil penalty. I do have some concern about the way the proposed penalty was calculated. If a final penalty is assessed I assure you I will review the assessment before it is forwarded to you. Please feel free to call with any questions. Sincerely, Michael B. ong Division Dire cc: Susan McCannon David Berry Tony Waldron Christine Johnston m:\coal\cej\NOV016