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Settlement Agreement -2- May 31, 1985 NOV C-85-021 This Notice of Violation was issued for "failure to maintain sediment control measures". In issuing the NOV, Susan Mowry cited statute section CRS 34-33-121(2)(i)(II) and Rule 4.05.5(1) of our Regulations. West Elk Coal Company's representative, Tom Lynn, protested the issuance of the violation, observing that the NOV was vague and provided an inadequate description of the violation. Mr. Lynn further observed that CRS 34-33-121(2)(i)(II) speaks to standards for prevention of sediment deposition outside the permitted area. While I agree that the Notice was vague in its notation, in combination with the inspection report of March 27, 1985, and the memorandum of "Proposed Civil Penalty NOV C-85-027" issued by Susan Mowry on April 29, 1985, the nature of the NOV was sufficiently presented to the operator. NOV C-85-027 was issued because Susan alleged that WECC had failed to properly maintain the portal bench drainage and culvert east of the shop entrance, both of which are components of the approved sediment control plan, referred to by CRS 34-33-121(2)(i)(II). In my opinion, therefore, this Notice of Violation was properly issued, contrary to the operator's protest. Staff proposed that the civil penalty for NOV C-85-027 be assessed as follows: History $ 0.00 Seriousness 875.00 Fault 500.00 TOTAL PROPOSED PENALTY $1,375.00 The operator's representatives, Tom Lynn and Rocky Bowman presented a contest to the proposed assessment for seriousness. Messsrs. Lynn and Bowman objected to Susan's observation "that damage is likely to occur". Mr. Lynn referenced the Act's citation of "off-site sediment affect". Susan responded that her proposed assessment referred to the "damage" involved in the failure to maintain the specific components of the sediment control system, as approved. In this regard, however, I disagreed with the proposed assessment of $875.00 for medium level seriousness. I have, therefore, revised the amount of the seriousness assessment component downward to $250.00. The operator's representatives also contested Susan's proposed assessment for fault, which she proposed as mid-level negligence, at $500.00. Mr. Lynn believed that WECC's performance displayed "reasonable care" and that the fault should be considered "unavoidable". I disagree with Mr. Lynn's opinion. However, I also disagree with the Division's assessment of mid-level negligence. In my opinion, past inspection report's references to the drainage problems at the portal bench were not demonstratively stated. The violation does not represent an unwarranted or willful failure to comply with the Act. However, the operator was aware of a recurrent problem and should have solved that problem. I have amended the fault component to minimum level negligence, setting that assessment at $250.00.