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-t PABGEL, MAUI~O, HULTIN & SPAANSTFLA, P.G. Mr. Steve Renner May 20, 1991 Page 2 for resolution of NOVs C-89-034 and C-90-007. Further, Rockcastle is under a compliance schedule in lieu of bond forfeiture pursuant to Rule 3.04.1(2). Because there is essentially no regulatory guidance under these circumstances, Rockcastle's regulatory obligations were comprehensively set forth in an agreement between Rockcastle and CMLRD dated June 26, 1990 (the "CMLRD Agreement"). This Agreement was approved by the Colorado Mined Land Reclamation Board. As set forth below, the exceptional nature of this situation, and the CMLRD Agreement, preclude enforcement of the above-referenced violations. The CMLRD Agreement comprehensively set forth the reclamation activities to be completed at the Grassy Gap site. These activities were defined not only by task, but where necessary, were specifically defined by reference to specific parts of the reclamation plan in the Permit. Moreover, the Agreement did not contemplate conducting any reclamation activities other than those contained in the Agreement. Rockcastle complied with the terms of the Agreement, and was not required to conduct hydrologic monitoring or sediment pond monitoring. Thus, the alleged violations do not exist in this unique regulatory situation, and therefore they should be vacated. Even assuming that the Agreement required hydrologic and sediment pond monitoring, and that the alleged violations exist, Rockcastle has interpreted the Agreement in good faith and complied with the terms of the Agreement according to that interpretation, and therefore no civil penalty should be assessed. II. Rockcastle has Substantially Complied With the Allegedly Applicable Parts of the Permit. Rockcastle conducted hydrologic monitoring and sediment pond stability studies in substantial compliance with the allegedly applicable permit conditions, and therefore the alleged violations should be vacated. As set forth in the May 6, 1991 letter, Rockcastle has completed substantial stability investigations of Ponds 2, 3, 4 and 5/6 to make demonstrations for their retention or removal.l Further, Rockcastle made additional stability investigations and evaluations of Pond 5/6 in response to CMLRD concerns. The results of these investigations were submitted to NOV C-91-002 alleges that the violation applies to Pond i. Rockcastle removed Pond 1, as authorized by CMLRD, and therefore the violation regarding Pond 1 is in error.