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SETTLEMENT AGREEMENT JUSTIFICATION <br />NOV C-93-030 <br />Assessment Conference Summary <br />NOV C-93-030 was issued by Steve Shuey of the Division on April 4, <br />1993 for "[f]ailure to protect off-site areas from slides and <br />subsequent damage to public property. Failure to remove and <br />segregate topsoil and subsoils before disturbance of areas by <br />surface coal mining operations". Mr. Shuey explained that the NOV <br />was issued based on observations he made during an inspection he <br />conducted on March 24, 1993. The NOV applied to a slope failure on <br />the northeast face of the portal face-up cutslope at the Orchard <br />Valley West Portal which had extended into undisturbed ground above <br />the crest of the cutslope. The area of undisturbed ground affected <br />was estimated to be approximately 600 square feet, and the amount <br />of topsoil assumed lost due to the slide was estimated to be 40 <br />cubic yards. The Operator had notified Mr. Shuey of the slide upon <br />its occurrence in late February. <br />Mr. Karl Koehler, representing Cyprus Orchard Valley Coal <br />Corporation (COVCC), was in basic agreement with the nature of the <br />slide as described by Mr. Shuey. Mr. Koehler questioned whether <br />the slide was in fact a violation, because there was no potential <br />for off-permit damage. Mr. Koehler also described the above normal <br />snowpack and above normal winter temperatures which had combined to <br />result in unusually high soil moisture levels, and described and <br />provided photos of active landslides in the vicinity of the permit <br />area. <br />Fact of violation <br />I find that a violation did occur. The Act citation, 34-33- <br />120(2)(u), specifies that operators "...protect offsite areas from <br />slides or damage...". In this case, some offsite damage did occur, <br />in that a small quantity of topsoil was lost, and a small <br />additional area not anticipated to be disturbed in the permit will <br />be subject to stabilization and reclamation. Had the potential for <br />a small slide in the highwall been foreseen and a topsoil buffer <br />been provided for initially, the event would likely not have <br />resulted in a violation. The citation of Rule 4.06.1(1) is also <br />appropriate. Mr. Koehler explained that topsoil had not been <br />salvaged because disturbance above the highwall crest was not <br />anticipated. This certainly was the case, and the permit did not <br />require topsoil salvage above the highwall crest. Nevertheless, <br />the area was disturbed by the mining operation as a result of the <br />slide, and topsoil was not salvaged. <br />