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.. . In summary, Colowyo felt they were in compliance with Rule 4.05.6(3)(a). The West Pit Pond was not the sole structure for water runoff and sediment control. The combination of the three structures provided more than adequate control as demonstrated by their July 22, 1994 submittal. This demonstration was accepted by the Division as abatement for the violation. In my opinion, the issue in this case is whether or not the embankments are ^in-pit" structures. During the initial development, before a pit has been dug, what characteristics of the mine site and on-site sediment control practices should be considered? At what point are "development" structures considered "in-pit^ structures? This question of what constitutes an in-pit structure may be open to some debate. However, the structures that were in place. at the time of the July 14, 1994 inspection were not what the Division had envisioned, or what I would consider, as an in-pxt structure. Furthermore, all aspects of the sediment control system need to be considered in the design. Rule 4.05.6 (3)(a) states, in part, that: (3) Sedimentation ponds and sedimentation treatment facilities shall be designed, constructed and maintained to: (a) Provide adequate capacity to contain or treat the runoff or inflow entering the pond In determining the runoff volume, the characteristics of the mine site and reclamation procedures, and on-site sediment control practices shall be considered. ... In my opinion Colowyo should have designed, permitted, and constructed sediment control structures to contain the runoff from the entire 300± acres that were needed for the initial pit development. I will uphold the violation. The proposed civil penalty was: History $0.00 Seriousness $1000.00 Fault $1250.00 Good Faith $0.00 Total $2250.00 Seriousness Colowyo felt the proposed penalty was too high. They contended that the demonstration in their July 22, 1994 abatement showed that the combination of the three structures were adequately sized to contain the runoff from the disturbed areas. While this is true, the fact remains that the structures were not designed or approved in the permit. It is the Division's interpretation that the structures were not in-pit structures,