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.`\ <br />5731 £ III I I VIII III <br />Meeker, Colorado 81641 <br />(970)824-1572 <br />(970)824-4459 FAX <br />James A. Klger <br />Senior Environmental Engineer <br />Mr. Mike Long <br />Division Director <br />Colorado Division of Minerals and Geology <br />215 Centennial Building <br />1313 Sherman Street <br />Denver, Colorado 80203 <br />.. ~4 <br />R~rFnil=p . <br />May 22, 1996 ~Y 2 4 199 fi <br />Division of m:~~a~,~~ u neology <br />RE: Permit C-81-019, Colowyo Coal Company L.P. <br />NOV C-98-011, Additional Information and Request for NOV Vacation. <br />Dear Mr. Long: <br />The following information is submitted both to provide the Division with additional information <br />regarding Notice of Violation ("NOV") C-96-011 and also as a request for a vacation of the NOV. As <br />Colowyo believes the information clearly shows that issuance of the NOV 1) is improper given the <br />circumstances, 2) constitutes a second enforcement action for the same issue previously addressed in <br />NOV C-96-006, and 3) is procedurally flawed, Colowyo requests that the NOV be vacated. <br />For the record, NOV C-96-011 was issued on May 7, 1996 and forwarded to Colowyo by Certified <br />Mail. Colowyo received the NOV at our Security office on Saturday, May 11, 1996. <br />The Headaate Leak Is An Upset <br />On March 19, 1996, during the course of a routine monthly inspection, the Division observed a <br />small leak in the East Taylor Pond headgate. The East Taylor Pond is a new pond, and was just <br />constructed in late 1995. While the primary discharge device was closed, the Division Inspector <br />determined that the small leak (less than 1 gallon per minute), constituted a discharge and took a sample. <br />Colowyo later investigated and found the cause of the leak was settlement of the new pond walkway <br />structure which, in turn, caused a slight flexing of the interface between where the headgate mating collar <br />attaches to the culvert pipe. The headgate leak should not be considered a discharge subject to the permit <br />limits, but should be considered an upset. As Colowyo's subsequent investigation indicated, the leak was <br />caused by an unforeseen circumstance related to the newly constructed nature of the pond. Immediately <br />upon safe access to the headgate, Colowyo fixed the problem. For the Division to now contend that this <br />unforeseen circumstance was a discharge subject to the permit water quality standards is to ignore the <br />plain language in Colowyo's permit allowing for upset conditions. <br />