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SETTLEMENT AGREEMENT JUSTIFICATION NOV C-94-028 Notice of Violation C-94-028 was issued for "Failure to pass surface drainage through a sediment pond before leaving the permit area. Failure to design and maintain diversions that lead into the sediment pond." Erica Crosby issued the NOV from the office to NCIG Financial on October 7, 1994 for the Storm King Mine. The NOV was based on her October 6, 1994 inspection. She observed a breach in Ditch 6 which is a perimeter ditch. The breach was approximately two feet wide and one and a half feet deep. Ms. Crosby showed slides of the breach. The area below the ditch was part of the same regraded field, although it was not part of the surface disturbance area. The ditch had been constructed following regrading activities above it where there had been a topsoil stockpile and in partial abatement for NOV C- 94-017. Designs for the ditch are included in a technical revision, also in response to NOV C-94-017. Peter Matthies, representing NCIG Financial, did not contest the fact that the ditch had breached, but he wanted to provide additional information. The area above the ditch disturbed by mine activities was 1.5 acres for a topsoil stockpile, although the drainage area above ditch 6 is larger. It has been prepared for cropland. It was seeded last fall and it has germinated. The water from the breach ran 35-40' below the ditch into a continuation of the same field. It never left the permit area. To provide surface drainage control from the newly graded and seeded field, hay bales had been placed along the lower edge and backup ditch 7 was constructed. No runoff went below these structures. The ditch had been constructed one and a half weeks prior to the breach. The breach occurred during the first storm after construction. This was a weak point that was not apparent until the rain "field tested" the ditch. Mr. Matthies repaired the ditch in fifteen minutes on October 7, 1994 before he had received the NOV in the mail. There was some discussion in the assessment conference regarding the nature of the violation citing surface drainage leaving the permit area. For underground mines, the critical boundary for surface drainage control is the surface disturbance boundary, not the permit area as cited in the NOV. The surface disturbance boundary delineates the perimeter of the sediment control system. The proposed civil penalty was: History $50.00 Seriousness $1000.00 Fault $1000.00 Good Faith $0.00 Total $2050.00