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<br /> <br /> <br />-2- <br /> <br />Justification for the Proposed Settlement for NUV 83-7 <br />The civil penalty as proposed by the Division staff was $325.00 <br />consisting of the following components. <br />History - $0 <br />Seriousness - $875.00 <br />Fault - $250.00 <br />Good Faith - $800.OU <br />The discussions and evidence presented at the settlement conference <br />indicated that the seriousness of the violation with regard to the <br />blocked culvert below the topsoil stockpile area was judged to be greater <br />at the time of the violation than it subsequently turned out to be for <br />the following reasons: I) The potential volume of sediment laden water <br />that could have left the permitted disturbed area was limited due to the. <br />small drainage area which was controlled by the ditch above the blocked <br />culvert. 2) The area contributiny to the runoff consisted primarily of <br />• Ehe topsoil salvage pile and thus, the only concern was suspended solids <br />and not any toxic or other deleterious materials. 3) There was no <br />evidence that fluids actually extended down the hill for any distance <br />close to the North Fork of the Gunnison. <br />During the analysis of this N.U.V. and the proposed civil penalties, West <br />Elk Coal Company, Inc. referred me to a recent decision from the Office <br />of Hearings and Nppeals at the U.S. Department of the Interior. In that <br />case, involving Consolidation Coal Company (I8S14A tf2-14), West Elk Coal <br />Company, through their attorney, Mr. Peter H. Haller of Atlantic <br />Richfield Company, believed that parallels existed which indicate that <br />the Notice of Violation should be vacated. hly analysis of that case and <br />the Notice of Violation written by the staff does not lead to the same <br />conclusion. Althouyh the case is not entirely parallel, one of the <br />findings in the Consol. case indicates specifically that the N.O.V., as <br />written, is valid. <br />In the Consol, case, it was found that a violation of sedimentation pond <br />requirements did not require a showing of harm, because sedimentation <br />ponds are in place as a preventive measure. In the case of tJ.0.V. l33-7, <br />as written by the Division, the drainage collection system, which is an <br />integral part of the sediment pond system, was clearly not able to <br />function as designed and, therefore, could not prevent discharge <br />