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Justification of Settlement Agreement for Notice of Violation C-91-038 Conference Summar NOV C-91-038 was issued December 27, 1991 for "failure to design and construct sediment ponds with a combination of principal and emergency spillways or a single open channel spillway." The operator had not implemented spillway modifications pursuant to revised regulations. The violation applied to a single sediment pond at the Fruita Mine. The mine is operated by American Shield Coal Company, and is currently inactive. The spillway modifications were necessitated by OSM mandated rule changes which became effective in January, 1991. All coal operators (including American Shield Coal Company) had received a memorandum from the Division on May 15, 1991 addressing the rule change requirements. The memorandum included a statement to the effect that any on the ground modifications necessary to bring existing spillways into compliance would need to be completed by September 1, 1991. The pond spillway modifications had not been implemented when Susan Morrison of the Division inspected the site on December 19, 1991. The above facts, as summarized by Susan Morrison of the Division, were not disputed by Greg Lewicki, representing American Shield Coal Company (ASCC). Mr. Lewicki stated that ASCC was not contesting the fact of the violation, but he did question the proposed civil penalty assessment with respect to the history and seriousness components. Specifically, Mr. Lewicki questioned whether NOV C-91-024 issued by the Division on September 24, 1991 should have been considered under the history component, since that NOV is being appealed to the Colorado Mined Land Reclamation Board at the March, 1992 Board meeting. With respect to seriousness of the violation, Mr. Lewicki argued that the penalty should be reduced to reflect the absence of any environmental damage and the extremely low potential for any such damage. The Division representatives concurred that the potential for environmental damage resulting from the non-complying spillway structure was remote, based on historical functioning, pond design, and site specific conditions. Mr. Lewicki acknowledged that ASCC had received the May 15, 1991 memorandum but due to communication problems attributable to a number of factors, including the death of one of the company principals, the proper personnel were not notified and the appropriate steps were not taken to bring the pond spillway into compliance with the revised regulation. The proposed assessment for fault was contested by neither Mr. Lewicki nor the Division representatives. The proposed Civil penalty was: History: $200.00 Seriousness: $250.00 Fault: $250.00 Good Faith: $0.00 TOTAL $700.00