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<br />Page two <br />Letter to Hamlet J. Barry, III <br />Mined Land Reclamation Division <br />Re: NOV No. 1 <br />February 18, 1980 <br />otherhi.se undisturbed area. Furthermore, deposition in some <br />area other than the proposed haul road area could have re- <br />quired shutdown of mining activity until another area was <br />prepared, and access developed to such area. This approach <br />would reruire spoil materials to be moved twice, at a sub- <br />stantial cost, and might create further disturbance of the <br />surface area adjacent to mining activity. <br />EFC's activities within its permit area were under- <br />taken with the expectation of imminent approval for its entire <br />haul road proposal after discussion over a single aspect of <br />that proposal (culvert size) was resolved. Deposition of the <br />spoils materials was undertaken in complete accord with the <br />EFC proposal already given conditional approval by the MLRB. <br />In fact, EFC received full approval from the state agency to <br />carry out all aspects of its proposed haul road construction <br />within 72 hours of the issuance of the NOV and CO by OSM. No <br />environmental damage of any kind occurred in that 72-hour <br />period, nor was it likely to occur given the fact that all of <br />EFC`s activities in the area had been determined to be environ- <br />mentally sound by inspectors from OSM and the Division. <br />Relevant factors in determining the appropriate <br />amount of penalty for this violation would appear to include: <br />1. EFC's history of previous violations; <br />2, the seriousness of this violation in terms <br />of harm to the environment or public health; <br />3. EFC's negligence in this context; and <br />4. EFC's good faith in achieving expeditious <br />compliance after receipt of the NOV. <br />The facts responsive to these considerations are particularly <br />significant. <br />First, EFC has received only one previous viola-~ <br />lation from the Division. This is particularly noteworthy <br />in view of EFC's posture as the largest and one of the most <br />complex surface coal mines in Colorado. <br />