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SETTLEMENT AGREEMENT JUSTIFICATION NOV C-95-021 Notice of Violation C-95-021 was issued for "Failure to ensure that water discharged from an underground mine complies with all Federal and State Laws and regulations. Mine water discharge TSS level of 548 mgt/1 significantly exceeded 40 CFR 43.42 effluent limit of 70 mg/1/day maximum." Dan Mathews issued the NOV to Powderhorn Coal Company for the Roadside portals on July 6, 1995. During his June 30, 1995 inspection, he observed sediment laden water flowing down the Coal Canyon drainage. He hated it back to the mine discharge point and took a sample. Results of the lab analysis showed the water had a total suspended solids level of 548 mg/I. The maximum allowable NPDES level for tss is 70 mg/1/day. Mr. Mathews returned on July 3. At that point the water was flowing rapidly, 200 gpm, and much cleaner. A sample from July 3 resulted in a tss level of 58 mg/I. Therefore, the water was in compliance. Larry Reschke and Richard Reisinger represented Powderhorn Coal Co. at the assessment conference. They did not contest the facts of the violation. They reported that the pumps were shut off immediately from the underground workings until the company could determine where the source of the problem was. After some investigations, they figured out that the portal pump was malfunctioning, the pump rate was only 190 gpm instead of the usual 250 gpm. At the slower rate, the pump could not stay ahead of the pump supplying it causing the mine water to bypass the pump and discharge. To alleviate the problem, the mine water and pump configuration was changed to reduce the chance of overloading the portal sump. Mr. Reschke added that the discharge was in compliance earlier in the week, before the June 30, 1995 inspection when he obtained his weekly sample. Although the representatives of Powderhorn Coal Co. did not contest the facts of the NOV, they did question why the DMG had issued an NOV for noncompliance of an NPDES permit which is issued by the Colorado Department of Health and Environment, Water Quality Control Division. Mr. Mathews stated that a Memorandum of Understanding had been signed with the Colorado Department of Health and Envvonment giving DMG the authority to issue enforcement actions for one day exceedances. Kathleen Sullivan of CDHE was contacted regarding the violation. The representatives of Powderhorn Coal Co. did contest the proposed civil penalty which was: History $150.00 Seriousness $1250.00 Fault $750.00 Good Faith $0.00 Total $2150.00