1992-11-02_GENERAL DOCUMENTS - C1981017

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JUSTIFICATION FOR SETTLEMENT AGREEMENT NOV C-92-025 Conference Summary NOV C-92-025 was issued on August 20, 1992 by Tony Waldron of the Division for "failure to implement design changes to sediment ponds as required by Rule 4.O5.6(3)(d) and as approved in the permit application via Technical Revision 19. Specifically, emergency spillways which are separate from the primary spillways have not been installed as approved and required . " The NOV identified nine sediment ponds as requiring emergency spillway construction . Before discussion of the specifics of the issue began , Ms . Delaney requested that I consider and make a ruling on whether assessment of a civil penalty by the Division is discretionary or mandatory for a notice of violation. Ms . Delaney argued that Rule 5.04.5(1 ) and Section 123(8) (a) of the Act allow the Division to determine on a case-by-case basis whether or not to assess a civil penalty for a notice of violation. Ms . Delaney suggested that it would be counterproductive for the Division to assess a civil penalty against Mid-Continent Resources (MCR) since any penalty would come from funds controlled by the bankruptcy court, which would otherwise be allocated for reclamation. Rule 5.04.4(1 ) states "the Division may assess civil penalties in amounts up to $5,000.00 for each violation of the Act, these Rules , or any permit or exploration approval ; however , the Division shall assess a civil penalty for each violation contained in a cessation order. " The cited Act section contains essentially the same wording. . My opinion is that the Division must evaluate civil penalties within the penalty assessment framework of 5.04. 5(3) and 5 .04.6. Based on the factors of history, seriousness , fault, and good faith, a civil penalty of up to $5,000.00 may be assessed . It is possible that, based on the four factors , no civil penalty may be warranted . It is my opinion that the Division does not have the latitude to disregard the factors of history, seriousness , fault and good faith and to choose not to assess a civil penalty based on other factors , and I stated this opinion at the conference. Tony Waldron proceeded at that point to review the circumstances which led to the issuance of the NOV. Due to a regulation change , the Division had issued a notification to all coal mine permittees on May 15 , 1991 , which stated that sediment pond combination spillways would need to be modified to provide for separate primary and emergency spillways or a single open channel spillway. The notification specified that necessary spillway modifications would need to be completed by September 1 , 1991 . Ten sediment ponds at Coal Basin were affected by the rule change , which became effective June 30, 1991 . MCR sucmitted a technical revision application addressing the modification on June 24, 1991 . The Division identified deficiencies in adequacy letters of September 18, 1991 and