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.- Mr. David C. Shelton, Director Mined Land Reclamation Division Page 2 It is Sun Coal's position that the to be approved rill and gully plan will eventually address the timing of appropriate remedial action on observed rills and gullies that are not deemed to be natural occurrences or CMLRD approved permanent rill and gully sites. This plan should address the issue of timely remedial work which is not so definitively specified in the current reclamation permit. II. Request to Modify the Proposed Civil Penalty Assessment A. Fault. The proposed civil penalty assessment worksheet prepared by Mike Savage on November 1, 1985, recommended a middle range of negligence assessment (E500). The rationale noted to support this proposed assessment stated that "The operator is responsible for a detailed monitoring and main- tenance plan on the haul road post-mine. It appears the operator has been negligent in carrying out the permit obligations ~r(Emphasis added.) The ACO's report by Sandy Brown issued December 11, 1985, following an informal assessment conference on December 10, 1985, notes under "Fault" that "the proposed penalty states the operator was negligent in carrying out the monitoring requirements of the permit." It is important to note that the words "and maintenance" were deleted from Mr. Savage's worksheet rationale. Mrs. Brown did acknowledge the Division's receipt (in August 1985) of Sun Coal's required monitoring and reme- dial work from January through June 1985. Mrs. Brown acknowledged that "The gullies may have occurred despite reasonable care; however, the purpose of the monitoring and maintenance plan is to identify areas of erosion and to control gullying to minimize impacts." Mrs. Brown concluded by stating, "I feel that these gullies should have been observed during normal monitoring and steps taken to minimize the gullying or to revise the ermrt toto esta6Tis~a plan for managing the erosive conditions` ~Emp~sis ~de~ While Sun Coal is uncertain as to Mrs. Brown's meaning in her reference to "normal monitoring", we can only presume at this point that such reference was to the permit-required monthly monitoring. It was noted pre- viously that such required monitoring reports (January through June 1985) were acknowledged as received by CMLRD. It was further noted that such reports for this time period did not identify the gullies so observed by OSM and CMLRD in their respective inspection reports and enforcement notices in September and October 1985. Sun Coal does note that its second semi-annual monitoring and remedial work reports covering July through December 1985 were submitted to CMLRD on February 13, 1986. The reports for July through October do not iden- tify the rills and gullies which are the subject of this NOV. Sun Coal submits that it has complied with the required monthly monitoring reports and performed appropriate remedial work in a timely manner once these conditions were observed by or pointed out to Sun Coal representa- tives. As you know, this decommissioned haul road as approved by the Division