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JUSTIFICATION OF SETTLEMENT AGREEMENT NOTICE OF VIOLATION C-92-003 Conference Summar Harry Ranney of the Division opened the discussion of NOV C-92-003 by explaining the observations he made on his January 23 inspection of the site which led ~o the issuance of the NOV. The NOV was issued for "failure to maintain coal waste pile configuration in accordance with constraints imposed by the permit and CMLRD regulations..." Mr. Ranney explained that, due to the fact that coal waste at Foidel Creek is disposed of within a mined out strip pit, certain of the stability-related construction specifications of Rule 4.10 do not apply. However, the permit requires that waste material be placed in a "stable configuration bounded on all sides by the pit." Both the Division and the operator, as acknowledged by Rick Mills, representing Twentymile Coal Company (TCC), understood this provision to prohibit placement of coal waste at elevations higher than the crest of the pit highwall. Mr. Ranney indicated that at the time of his inspection a dozer was on site and accumulated waste material was being pushed into the remaining open area of the pit. However, approximately 15,000 to 20,000 yd3 of waste rock (100' x 350' x 15' high) had been previously deposited above the pit highwall. Mr. Ranney indicated that, in his judgment, the seriousness of the violation was low because the 15-foot height of material above the pit highwall represented a minimal potential for slope failure, and the entire disposal area is contained within a larger disturbed area which is controlled by a sedimentation pond. The potential for spontaneous combustion was not significantly increased in comparison to the approved plan. Mr. Mills did not deny that a violation had occurred, but indicated that he felt a reduction in the amount of civil penalty was warranted based on consideration of the minimal potential for environmental harm or safety hazard, operational circumstances which led to the violation, and good faith exhibited since the issuance of the NOV. With respect to the degree of fault exhibited, Mr. Mills stated that the rate of waste rock production had increased abruptly due to the presence of a fault zone within the mine and that the percentage of waste had recently been further increased as a result of tighter coal quality contract specifications. Due to these operational factors and the limited remaining capacity of the permitted facility, sufficient manpower and equipment had not been available to dispose of the waste as required by the permit in a contemporaneous manner. Fact of Violation The specific facts of pertinence to the occurrence of a violation are not in dispute. I find that a violation did occur.