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2. NOV C-96-006. NOV C-96-011 was vacated and combined with NOV C-96-006. While Colowyo believes that it is more appropriate to treat these two separately issued NOVs as one, it takes issue with the way in which the conference officer described the violations and calculated the penalty. As the DMG representative, Ms. Erica Crosby, indicated at the NOV conference, the primary basis for NOV C-96-006 was the Division's contention that Colowyo's permit did not allow pit pumping into sediment ponds. Colowyo successfully refuted this at the conference with evidence of correspondence between it and the Division clearly indicating that it intended to pump pit water into the ponds, on occasion. Thus, based on this information, Colowyo contended that two NOV's were not warranted, NOV C-96-011 should be vacated and any water quality concerns addressed tinder NOV C- 96-006. NOV C-96-011 was issued because the water leaking from the East Taylor Creek pond did not meet permit limits for TSS and iron; it did, however, meet settleable solids. Immediately, when Colowyo realized that the quality of the water in ffie East Taylor Creek pond was not good, it determined not to dischazge any water from the pond until it could clean the water. However, because the headgate had only been recently installed, and as an unforeseeable result of the recent headgate installation, there was a slight leak of less than or about 1 gpm from the pond. The only way to fix the leak in the pond would have been to discharge all of the water in the pond. Yet, because the water in the pond did not meet discharge standards, Colowyo could not discharge the water. Colowyo obtained, as quickly as possible, necessary approvals to use flocculent to clean the water so that it could be discharged and the headgate fixed. But in the meantime, Colowyo was in a "Catch 22," and had to allow the water to continue to leak. Thus, while the headgate leak might have amounted to a technical water quality violation, this unusual set of circumstances should be taken into account in the penalty determination. Co(owyo does not believe that the conference officer did this. The settlement agreement justification incorrectly states that Ms. Crosby observed pit water being pumped into the East Taylor Creek Pond during her March 19, 1996 inspection. Ms. Crosby did not so state at the NOV conference, nor does her inspection report support the statement. The report indicates there was evidence of pit pumping into the pond, namely a hose adjacent to a pit pool that led to the pond. In point of fact, pit pumping had stopped weeks before the inspection -once the mine management became awaze of the pumping. Moreover, Colowyo has learned upon subsequent investigation that Ms. Crosby misunderstood the pit pumping. information conveyed to her by a Colowyo employee during her Mazch 19, 1996 site inspection. The Colowyo employee had been referring to ;11j pit pumping, not just pumping into a sediment pond. The vast majority of the pit pumping referred to by that individual was pumping within the pools contained withinin the pit azeas, not to the sediment pond. Thus, while a minor amount of pit water may have been pumped to the pond, pumping to the East Taylor Creek Pond did p9I occur "every other day for roughly two and a half weeks." Colowyo believes the conference officer appears to have been swayed by misinformation contained within the March 20, 1996 inspection report. 2