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was leaking water that had been pumped from the mine pit into the pond, and which was <br />visibly very poor quality water. Neither the mine permit or the pond designs anticipated pit <br />pumpage going to this pond. We are not aware of any steps taken prior to March 20 to try <br />to stop the leak or recapture water for retention in the pond. <br />Based on a phone converstaion, Kathy Sullivan (WQCD) does not believe this qualifies as <br />an "upset". We do not believe this event was an upset, as defined in the mine's CDPS <br />permit. <br />2. Issuance of NOV C-96-011 was not a second enforcement action for the same set of <br />circumstances as NOV C-96-006. <br />NOV C-96-006 was issued to Colowyo earlier for failure to design, construct and maintain <br />the pond to provide adequate capacity to contain or treat the required design event and pit <br />pumpage. The NOV was issued when DMG discovered, on March 20, that pit water had <br />been pumped to the pond for over two weeks. The NOV did not cite any discharge or <br />effluent limit problems. This same pit water was what was leaking through the headgate <br />and sampled during the same inspection, resulting in NOV C-96-011. <br />NOV C-96= 011 was issued in accordance with DMG's Memorandum of Understanding with <br />WQCD regarding water quality management at coal mines. The MOU indicates that DMG <br />is responsible for enforcement of requirements to minimize disturbance to the hydrologic <br />balance based on water samples collected by DMG inspectors. This is what was cited in the <br />NOV. The MOU also directs DMG to issue an NOV when we determine a violation of <br />Rule 4.05 has occurred, based on a exceedance of federal effluent limits. Issuance of NOV <br />C-96-011 was required by the MOU, following receipt of lab results indicating the discharge <br />exceeded suspended solids and iron effluent limits. <br />While the two NOV's are obviously related, they do not cite the same compliance problems. <br />We might have chosen to cite all of the compliance problems in one NOV. However, NOV <br />C-96-006 had been abated and terminated on April 10, two weeks prior to receipt of lab <br />results from Erica's water sample. <br />3. Issuance of the NOV was procedurally flawed, but not improper. <br />Colowyo correctly points out that NOV C-96-011 was issued more than three days following <br />receipt of lab results. The DMG/WQCD MOU directs DMG to issue NOV's within three <br />days of receipt of lab results. This NOV was issued 11 days after receipt of lab results, <br />primarily because Erica was waiting for confirmation from her supervisors that the NOV <br />should be issued. There was no intent or attempt to prejudice or harm the operator by this <br />delay. <br />