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• <br />C~ <br />WELBORN DUFFORD BROWN ~ TOOLEY. P. C. <br />Mr. Jim Pendleton <br />Colorado Mined Land Reclamation Division <br />February 9, 1988 <br />Page 4 <br />August 29, 1987, as the final action of the <br />mid-term review. This plan was incorporated into <br />Permit Revision No. 2 and accepted by the Division <br />in its adequacy comments dated November 12, 1987. <br />Section 4.8.1.3 (pp. 4-183 through 4-183(b)) sets <br />forth the drainageway stabilization plan for the <br />1988-1992 permit term. That plan applies to the <br />ditch in question, whether it became effective at <br />the conclusion of the mid-term review or if it does <br />not become effective until Permit Revision No. 2 is <br />approved. in either case, the plan became <br />effective at the end of, or after, the 1987 <br />construction season. In light of that and the fact <br />that the cited condition of the ditch existed on <br />the effective date, the revised plan requires <br />Trapper to repair the ditch early in the 1988 <br />construction season (see page 4-183(b)). <br />8. Trapper has always intended to repair the ditch in 1988 <br />and the NOV had no effect on those plans. Prior repair <br />would have been fruitless until the stabilizing effect <br />of the stockponds and revegetation had an opportunity to <br />work. <br />9. All drainage from the tributary ditch flows through the <br />main channel of Coyote Gulch and is retained in the <br />sediment pond formed by Coyote Dam. The discharge <br />reports previously submitted show that there has been no <br />violation of the NPDES effluent standards in any <br />discharges from that Dam since the last quarter of 1986. <br />The OSM inspector was either unaware of these factors, <br />or failed to take them into account in issuing the 10-day <br />notice. Apparently, the same thing occurred in the Division's <br />subsequent decision to issue the NOV. The following review of <br />the sections and conditions cited in the NOV in light of these <br />factors shows that no violation occurred. In general, that is <br />true because none of the sections cited are mandatory or <br />self-implementing, but must be defined for any particular mining <br />operation by its permit terms. As shown above, Trapper has <br />complied with its permit terms implementing the rules and statute <br />cited in the NOV. <br />Rule 4.05.5(2)(e) is the only section cited in the <br />10-day notice and is the primary section relied upon in the NOV. <br />The condition cited as a violation in both is merely a <br />regurgitation of its words. "Protected channels or pipes" is <br />only one item in a nonexclusive list of seven sediment control <br />