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2. Issuance of NOV C-96-011 Constitutes A Second Enforcement Action For the Same Set of Circumstances as NOV C-96-006. The central issue behind the issuance of NOV C-96-011 focuses on 1) water quality associated with the East Taylor Pond; 2) whether pit pumping was addressed in the Permit Application; and 3) debate regarding the applicable discharge standards for the pond. These same issues are the focus of NOV C- 96-006 issued by the Division on March 26, 1996, also as a result of the same March 19, 1996 Division inspection and for the same East Taylor Pond. While these particular issues have yet to be resolved through the NOV C-96-006 Assessment Conference process, it is clear that the same issues would again be rained during the NOV C-96-011 Assessment Conference. Colowyo believes that the disputed issues of NOV C-96-011 are virtually identical to the disputed issues found in NOV C-96-006. This being the case, Colowyo is, unfortunately, being subjected to multiple NOV's for the same set of circumstances. We believe the issuance of the earlier NOV C-96-006 should be sufficient to resolve the disputed issues without the issuance of a subsequent NOV. The Division's decision to issue NOV C-96-011 concerns Colowyo. As discussed below, the Division received the East Taylor Pond analytical results on April 25, 1996. The next day, on April 26, Colowyo representatives came to Denver to meet with the Division and the Water Quality Control Division, and to discuss shared water quality concerns at the mine. However, if these meetings are intended to fully air all of the issues, and the Division withholds information or simply intends to follow with an adversarial course of action with Colowyo, it makes it extremely difficult for the parties to reach a meaningful agreement. Under these circumstances, Colowyo believes it would be appropriate for the Division to vacate this NOV and use NOV C-96-006 as the appropriate forum in which to resolve issues related to water quality at the East Taylor Pond. 3. Issuance of the NOV C-96-011 Was Procedurally Flawed As stated above, the Division obtained the sample on March 19, 1996. The Division received final notification of the sample analytical results from the Colorado Department of Health, Inorganic Chemistry Laboratory on April 25, 1996. It was not until 12 days later that the NOV was written and forwarded to Colo•nryo. A review of the "Memorandum of Understanding Between the Division of Minerals and Geology, Department of Natural Resources and the Water Quality Control Division, Colorado Department of Health, Relative to the Water Quality Management at Coal Mines" ("MOU") effective February 9, 1994 indicates that the Division did not comply with the enforcement provisions of the MOU. The MOU states, in the Enforcement section, Item #2, that Upon receipt of completed analysis, DMG shall determine whether a violation of the Rules for Coal Mining at Section 4.05 has occurred, as determined by comparison with federal effluent limitation guidelines found at 40 CFR Part 434. If such a determination is made, DMG shall issue a Notice of Violation (NOV) within 3 days of receipt of the completed analysis (emphasis added). 2