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n SETTLEMENT AGREEMENT JUSTIFICATION NOV C-93-083 Assessment Conference summary NOV C-93-083 was issued by Susan Morrison of the Division on June 1, 1993, as a result observations she made at the Rienau No. 2 Mine on her inspection of May 25, 1993. The NOV was issued for "[f]ailure to maintain Rienau ,f2 Pond B inlet culvert as designed". Rule 4.05.5(1) and culvert designs in the permit application package were cited in the NOV. Ms. Morrison explained that the 36" pond inlet culvert was approximately 1/2 blocked with hardened sediment. Upon returning to the office following the inspection, Ms. Morrison reviewed the hydrologic information in the permit, and confirmed (using SEDCAD modeling) that based on drainage basin characteristics and runoff assumptions set out in the permit, a minimum culvert diameter of 36 inches was required to convey the 10 year, 24 hour flow. The blockage observed had reduced the cross sectional area of the culvert such that it was roughly equivalent to a 13 inch diameter culvert. Photos were shown documenting the condition of the culvert on the date of the inspection and following partial repair on June 11. The partial repair had consisted of the lower three feet of the culvert being cut off. This culvert section had been left where it fell, and sediment still remained in the intact portion of the culvert. Ms. Morrison indicated that the need for maintenance of the culvert had been specified in the April inspection report. She further noted that the NOV had not been terminated on June 11 because the abatement had not been completed. Mr. Greg Lewicki, representing Enron Coal Company, agreed with the facts of the violation as presented by Susan Morrison. Mr. Lewicki explained that the reason the culvert had not been cleaned out was because access to the site had been denied by the land owner, and Enron had been attempting to work out a satisfactory access agreement for some time. Ms. Morrison confirmed that this was the case; Mr. Rienau, the landowner, has ordered both Enron and Division personnel off the property in the past. Mr. Lewicki indicated that by late May, no agreement had been reached, but he nevertheless proceeded to make arrangements to have the culvert repaired. The arrangements had been made, but the work had not yet been done when Ms. Morrison conducted her inspection on May 25. Mr. Lewicki agreed that when the work was done initially, it was not fully completed in a satisfactory manner. He stated that the work was fully completed by June 29, two days prior to the abatement deadline. Fact of violation The basic fact of the violation was not contested. I find that a