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III. COMMENTS -COMPLIANCE Below are comments on the inspection. The comments include discussion of observations made during the inspection. Comments also describe any enforcement actions taken during the inspection and the facts or evidence supporting the enforcement action. The revised certified "As-Built" documentation requested by the Division had not been provided by March 9, and as a result the NOV was issued on March 10, following the site inspection on March 9. The NOV specifically cited three Seneca Coal Company documents pertinent to Pond 016 design and construction; the 2001 TR-40 "As-Built" certification, the 2004 Annual Impoundment Certification Report, and the May 2003 PR-3 design revision. The TR-40 "As-Built" was cited because it depicts a 3" de-watering orifice located 1.3 feet below the top of the principal spillway riser that does not exist. During the inspection on March 9, 2005, the pond had a thin slushy ice cover, and clear water was spilling over: the top of the principal spillway riser. The flow rate was approximately 15 gpm, and appeared to roughly correspond to the pond inflow. Photo #1556 is a view of the entire pond, with the trash rack and anti-vortex plate visible above the surface. Photo #1551 is a closer view of the pond embankment, principal spillway riser with trash rack, and the emergency spillway. Photo #1549 is a close-up of the principal spillway riser, with water spilling over the top of the. riser, on the right side. Photo #1552 shows the discharge at the outlet end of the principal spillway culvert. These photos were taken on 3/9/05, and the flow over the top of the riser indicates the absence of a dewatering orifice. It has not been determined with certainty whether the orifice was actually in place when the TR-40 "As-Built" was prepared and certified in September 2001. Division inspection reports from November 2003, April 2004, and October 2004 contain references to Pond 016 being full, with water spilling over the top of the principal spillway riser. An August 2002 report states that the pond was nearly full, but not discharging. These observations would seem to indicate that there was no dewatering orifice in place. Photo #1040, taken on April 29, 2004, shows the water level at the top of the spillway riser. There were no references in any DMG inspection reports from September 2001 to the present, of water discharging through a de-watering orifice or weep hole, and no reference to the operator modifying the spillway to eliminate a de-watering orifice following PR-3 approval. The 2004 Annual Impoundment Certification Report for Pond 016 was cited, because it contains a P.E. certification statement affirming that the "structure has been maintained as designed and in accordance with the approved plan and the applicable regulations". The operator has subsequently stated (in their letter of November 30, 2004), that the 2.5 foot principal spillway riser height reduction specified in the design revision had not yet been completed. The November 30 letter further indicates that the de- watering orifice had been eliminated, and DMG inspection documentation referenced in the previous paragraph indicates that the orifice had not been present earlier in 2004. It therefore appears that when the SCC pond inspection was conducted in August 2004, and when the certification report was completed in November 2004, the principal spillway was not in compliance with either the 2001 TR-40 "As-Built" or the 2003 PR-3 design revision. The 2003 PR-3 design revision was cited, because it is the currently approved design. Construction certification attesting to construction in accordance with the PR-3 design revision, or otherwise demonstrating compliance with applicable regulations has not been submitted, and the operator has acknowledged that the principal spillway riser height was not reduced as specified in the approved plan. 5'