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f .. SETTLEMENT AGREEMENT JUSTIFICATION NOV C-95-026 Notice of Violation C-95-026 w•as issued for "Failure to seed the temporary windrow• topsoil piles in the East pit with a cover of non-noxious, quick growing annual and perennial plants as stated in the permit. Failure to mazk temporary piles; failure to spread in the timeframe noted in the permit (spring of following year)." Erica Crosby issued the NOV to Colowyo Coal Company, L.P. (Colowyo) on December 5, 1995 at the Colowyo Coal Minc. An assessment conference w•as held on February 5, 1996. Ms. Crosby explained Colowyo's topsoil handling practices. Colowyo live handles the topsoil in the East pit area. If there is excess from one year, the excess is placed in "surge" piles adjacent to the azea where it will be replaced the following year. In most cases, the topsoil is replaced the following spring. During Colowyo's permit renewal in ]991, concern w•as expressed by the DMG regarding the length of time the surge piles would be in place (October 4, 1991 letter). As a result of this concern Colowyo committed not to have the piles in place longer than one year (page 2.05-26 in the permit application). The alternative procedure for topsoil protection has been permitted as described in the findings document dated July 23, 1992. On December 5, 1995 Ms. Crosby conducted an inspection of the mine site. She observed five surge piles that she felt were out of compliance. She issued NOV C-95-026 as stated in the fast paragraph. Two of the piles had been in place longer than the maximum one year time allowed, one in the center of east pit and one in Section 11. These two pile were observed on aerial photographs from September, 1994. There were no signs on three of the piles. Weeds, specitically Russian Thistle, were observed growing on two of the piles and she was concerned about the lack of a stable vegetative cover for erosion control. Ms. Crosby noted that Colowyo submitted a minor revision(MR) during the December 5, 1995 inspection requesting that the piles be allowed to remain in place one year longer. The DMG denied the MR. Rich Atkinson, Jim Kiger and Kimberly Wolf, representing Colowyo, requested that the NOV be vacated in the assessment conference and as described in their letter to the DMG Dvector on December 12, 1995. Specifically, they claimed signs were not necessary, because the "surge" piles are not topsoil stockpiles. Although, they argue it is not a violation, Colowyo placed all available signs on two of the piles and they ordered signs for the remaining piles. These have all been marked. Regarding the violation for not seeding, Colowyo explained that Russian thistle is a common weed that appears during the first couple years of revegetation. It is not classified as a noxious weed. Its presence is not indicative of poor handling practices or soil erosion. In fact there was no erosion noted on any of the surge piles and native vegetation was observed on most of the piles.