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SETTLEMENT AGREEMENT JUSTIFICATION NOV C-93-011 Notice of Violation C-93-011 was issued for "Failure to certify after construction five sedimentation ponds and failure to forward the certifications to the Division immediately following construction." Joe Dudash, representing the Division provided a chronological history of this issue. There has been an ongoing disagreement, between the Division, the operator and the Office of Surface Mining about what design information is required for these ponds, and whether or not they are small area exemptions, since March of 1991. The Division issued two previous NOV's addressing these ponds. One of the NOV's (C-91-014) was vacated and the other one (C-91-028) was prematurely terminated on February 16, 1993, before the NOV had actually been abated. Durinq the complete inspection in March, 1993 the Division issued NOV C-93-011. The OSM also issued a Federal violation for the ponds. An assessment conference was held to discuss this NOV on June 18, 1993. The discussion in the assessment conference was directed at whether two violations, a Federal and a State, addressing the same structures is appropriate. At the time, I felt it would be appropriate to vacate the State NOV if the Federal was upheld. The Federal violation was upheld, however it addressed four out of the five sedimentation ponds. Therefore, I will uphold the NOV to address the pond OSM did not include in their violation. I reevaluated the proposed civil penalty in light of the modified NOV. The proposed civil penalty was: History $0.00 Seriousness $750.00 Fault $750.00 Good Faith $0.00 Total $1500.00 Seriousness The pond left under consideration in NOV C-93-011 is a totally incised pond, measuring 60 feet by 60 feet, with a total capacity of 0.33 acre-feet. The pond was constructed as required, but there was no certification. The lack of a certification, as long as the pond is functioning as designed, represents a low level of seriousness to me. I propose to reduce the penalty to $250.00 for seriousness. Fault The operator failed to submit the required certification. It appears the operator was not aware of the requirement to do so. I believe this represents negligence. $500.00 is proposed.