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SETTLEMENT AGREEMENT JUSTIFICATION <br />NOV C-93-011 <br />Notice of Violation C-93-O1I was issued for "Failure to certify <br />after construction five sedimentation ponds and failure to <br />froward the certifications to the Division immediately following <br />construction." Joe Dudash, representing the Division provided a <br />chronological history of this issue. There has been an ongoing <br />disagreement, between the Division, the operator and the office <br />of Surface Mining about what design information is required for <br />these ponds, anfl whether or not they are small area exemptions, <br />since March of 1991. The Division issued two previous NOV's <br />addressing these ponds. One of the NOV's (C91-014) was vacated <br />and the other one (C-91-028) was prematurely terminated on <br />February 16, 1993, before the NOV had actually been abated. <br />During the complete inspection in March, 1993 the Division issued <br />NOV C-93-011. The OSM also issued a Federal violation for the <br />ponds. <br />The discussion in this assessment conference was directed at <br />whether two violations, a Federal and a State, addressing the <br />same structures is appropriate. I don't think it is. The <br />preferred alternative would be for the OSM to vacate their NOV <br />and defer to the State's enforcement and penalty process. If the <br />OSN does not concur and they uphold their NOV and propose a <br />separate civil penalty, I suggest the State defer to the Federal <br />Process. I do not feel two duplicate violations and two separate <br />penalties are necessary. <br />The operator did not contest the fact of the violation or the <br />proposed civil penalty of $1500.00. However, if the OSM upholds <br />their NOV and proposes a civil penalty, I recommend that NOV C- <br />93-011 be vacated. <br />