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JUSTIFICATION FOR SETTLEMENT AGREEMENT NOV C-92-018 Conference Summar NOV C-92-018 was issued by Susan Morrison of the Division for "failure to complete construction of emergency spillway at Pond 008; failure to submit documentation of certification of the pond by a qualified, registered professional engineer." The NOV was issued during an August 14, 1992 inspection of the Seneca II Mine. Susan Morrison opened discussion of the NOV by explaining the observations she made on her August 14 inspection, and reviewing the circumstances which lead to issuance of the NOV. Ms. Morrison indicated that, due to a regulation change, the Division had issued a notification to all coal mine permittees on May 15, 1991, which stated that sediment pond combination spillways would need to be modified to provide for separate primary and emergency spillways or a single, open channel spillway. The notification specified that necessary spillway modifications would need to be completed by September 1, 1991. One sediment pond at Seneca II (Pond 008> required construction of an open channel emergency spillway to come into compliance with the revised regulation, which became effective June 30, 1991. Peabody submitted a technical revision application addressing the modification on August 22, 1991 and the revision was approved on January 2, 1992. Weather and ground conditions prevented immediate construction of the spillway. Division and Peabody personnel discussed the matter in the early spring of 1992 and it was understood by both parties that the spillway work would be completed during the 1992 field season. Ms. Morrison noted that on a May 20, 1992 site inspection she cbserved that the work had been initiated; a spillway channel had been excavated and riprap had been dumped, but not spread and placed per the approved design. The condition of the spillway remained unchanged at the time of her August 14 inspection. The operator representatives were in basic agreement with the above chronology, but argued that a Notice of Violation should not have been issued because the Division had not specified a compliance deadline, and it was Peabody's intent to complete the work during the 1992 field Season. Fact of Violation I find that a violation did occur. Revised Rules 4.05.6(3)(d) and (e), which address the pertinent spil~way design requirements, became effective June 30 1991. 6y the memorandum of May 15, 1991, the Division granted a grace period e:<tanding to September 1, 1991, to allow for necessary design changes, permitting, and construction associated with existing, non-complying structures. As of August 14, 1992, the Pond 008 spillway system was not in compliance with the applicable regulations.