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-* z 5. based upon site inspections and geotechnical analyses, site conditions are apparently such that the current reclaimed situation is more stable and environmentally sound than if the highwall were eliminated. The required abatement for the NOV and CO issued to American Shield is to totally eliminate the highwalls at the Fruita Mine. Geotechnical analyses in the permit application and subsequent materials submitted to the Division indicate the highwalls cannot be reclaimed with available spoil material at the site in a manner resulting in a minimum static safety factor of 1.3. Therefore, neither the NOV or the CO can be abated in compliance with applicable regulations. 7 Rule 5.03.x(4) allows for consideration of inability to comply with the regulations in mitigation of civil penalties. American Shield cannot comply with current State regulations if required to abate the NOV and CO. Rules 4.27.3(3) and 4.27.4(1) require total elimination of highwalls in a manner resulting in a 1.3 static safety factor. This cannot be done at Fruita. The Division has proposed to modify the above regulations to accommodate consideration of pre-law highwalls. American Shield could not eliminate the highwall and comply with the proposed regulations either, because, 1. the minimum required 1.3 static safety factor could not be achieved and, 2. "reasonably available spoil" to be used for highwall elimination is proposed to be defined as material which, ;4hen rehandled will not cause a hazard to public safety or significant damage to the environment". The spoil material at Fruita is stable in its present configuration and would not be stable if placed against the highwall. The bench on which the spoil would be placed to eliminate the highwall was revegetated in 1989. This area would be redisturbed if the highwall were partially or totally eliminated. Due to the operator's inability to comply with the regulations by abating NOV C-91-024 and CO C-93-158, I am ordering that the proposed civil penalty for the NOV be reduced to zero and, that the proposed civil penalty for the CO be reduced to $750.00. Due to the unabated enforcement actions, I am also instructing my staff to arrange for a hearing before the Mined Land Reclamation Board in Feb-~__ry, 1994 to consider forfeiture of the bond for the Fruita Mine. Formal notice of the request for this hearing will be sent to American Shield next week.