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-5- 9) NOV C-90-013 was issued May 15, 1990 for failure to construct or maintain se imen pond as designed. Specifically, the sheet metal emergency spillway lining used in place of riprap had been dislodged and partially blown off, and the pond embankment has apparently slumped, completely burying the outlet end of the dewatering device. Rules 4.05.6(s)(e)( and (d ), 4.05.6(8)(e) and Technical Revision #3 were cited in support of the violation. Abatement was to consist of reconstructing the pond embankment and spillway and dewatering structures as specified in the approved plan and Rule 4.05.6(8) by June 29, 1990. Abatement included submittal of a professional engineer's certification that the pond was reconstructed under his or her supervision. This certification shall include calculations and as built measurements demonstrating that the emergency spillway as constructed meets the requirements of Rule 4,05.6(3)(d) as well as certifying that the pond meets the requirements of the approved plan and Rules 4.05.6(8)(a) thru (g) by July 30, 1990. The penalty proposed for the violation was #850.00. No assessment conference was requested. Payment of the penalty was received August 13, 1990. CO C-90-031 was issued Aug. 2, 1990 for failure to abate NOV C-90-013. Citation of rules and abatement measures required were the same as those for NOV C-90-013. The penalty proposed for this violation was b25,500 based on the fact that the violation was not abated for 30 days and the original penalty proposed for NOV C-90-013 was E850.00. Notice of the proposed penalty was only recently sent. At this time, it is not known if an assessment conference will be requested. The penalty, of course, has not yet been paid. In regard to the August 23, 1990 letter from Mr. Ross 0. Swimmer, attorney for Blue Flame Coal Co., regarding the Show Cause Order mailed July 30, 1990, some comments are in order. In paragraph 1, Mr, Swimmer attempts to misrepresent the record at Blue Flame. The violations issued were for notable failures to comply, not good faith; the measures taken by Blue Flame were those subsequently required by the Division to abate those violations. The reference to "considerable remedial actions" in paragraph 2 amounts to an admission, perhaps unintentional, of just how much the mine was out of compliance.