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-:. iii iiuuiiiim iii STATE OF COLORADO DIVISION OF MINERALS AND GEOLOGY pF' ~O Department of Natural Resources ~ ~~, ,~ _r~ N~ ,.a~ ;~ 1 31 } 5herm~n SL. Room ? 1 5 II .`1a (~~,~ y^~).,~ Denver. CO H0303 ~ ~"~~ • ~ \ reve~ Phone: 130]1 N663567 FAX: 13071 832-8106 Rov Romer Governor Michael B. Long Division Dvector MEMO May 19, 1993 T0: Larry Routten FROM: Steve Renner RE: Notice of Violation C-93-026 I have reviewed the proposal of Dan Mathews, Assessment Conference Officer in regard to the Notice of Violation which addresses failures to maintain sediment control, minimize erosion and retain sediment within disturbed areas. The Assessment Officer has determined that the portion of the violation dealing with coal fines spilled below the Goat Trail conveyance system should be modified such that this portion of the Violation is excluded. The recommendation is based upon statements made by Division inspectors in 1982. During the 1982 inspection the inspectors stated that cleanup and removal of the under conveyor spillage was an issue to be dealt with at final reclamation, and was not an on-going maintenance concern. The Assessment Officer felt that the operator had been laboring under the impression that the inspection report represented a final agency determination, and that no maintenance was required during operations. Therefore, the recommendation to modify the conveyor spillage out of the violation was made. I have reviewed the pertinent documents relative to this case. I believe that the Division inspectors made their 1982 determination in good faith, given the circumstances. However, I do not believe that the decision to postpone maintenance of the spillage until final reclamation was correct. Clearly, it is impossible to predict the deterioration of any maintenance situation over an eleven year period without considerable deliberation and documentation. It is not apparent that either of these conditions exist. Further, a decision to allow a potentially negative practice to continue should be done by the approval of a revision to the permit. Again, this did not occur. To my knowledge, this situation is not addressed anywhere in the permit document. Finally, the opinion of an inspector does not constitute a final agency action which precludes further investigation or even subsequent reversal. Inspectors make the best judgement calls they can at the time. However, inspectors