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Notice ojViolation C['-99-00~ June R, 1999 • Pnge 2 was into sandstone. The cut into the north-facing slope would have required additional slope stabilization methods and would have generated excess sediment, in addition to creating a large disturbance. The total disturbance now associated with the Shaft #3 site, approximately 1.3 acres, is less than half of the disturbance proposed in MR#219. Contrary to the Division's statement in describing the nature of the violation, by reducing the amount of the disturbance, MCC did prevent environmental harm. The Division's approval letter for MR#219 stated, "MCC retains some flexibility in choosing particular sediment control measures". As MCC reduced the amount of disturbance proposed in MR#219, MCC also adjusted the type and placement of sediment control measures that had been shown in MR#219. The sediment control plan, as described in MR#219, consisted of strawbales located at the end of the benches in the amphitheater cut with the majority being placed on the benches cut into the north-facing soil slope. In addition, a topsoil pile, surrounded by a silt fence, was proposed for installation below the shaft pad. Instead of locating this feature adjacent to an active construction area, and risk potential damage to the topsoil resource, MCC placed the topsoil that was removed from the Shaft #3 site into the Shaft Site Topsoil Pile (above Shafts #1 and #2) where it was better protected. Therefore, the silt fence around the topsoil pile and the strawbales at the ends of the benches on the north-facing slope could not be installed, as these features were not constructed. As the site was constructed MCC evaluated possible areas where sediment could be generated and concentrated the sediment control measures in those locations. As the cut above the pad was primarily in sandstone, what little sediment generated would settle out on the flat benches prior to reaching the ditch to the southeast of the cut. Therefore, we determined that the installation of the strawbales at the ends of the benches was not necessary or feasible, as the strawbales would have to be installed into rock. Instead, strawbales were installed at the outlets of culverts, ditches were lined with riprap, silt fence was installed below and at the mid-slope of cuts and fills, and the area seeded. In addition, last fall MCC began to install erosion control blanket, and will complete the project early this summer, which should further reduce sediment. MCC has revised the SAE demonstration to account for the as-built of Shaft #3. This demonstration was presented in Technical Revision No. 86 submitted to the Division in November 1998. An adequacy letter wasjust provided to MCC in May 1999, and MCC will be addressing these questions in the near future. MCC is also continuing with the installation of the erosion control blanket. In our opinion, the NOV and the accompanying inspection report, cites terms and conditions that are not required by MCC's permit. Furthermore, a revised SAE for Shaft #3 is being handled adequately through current processes (i.e. the submittal of Technical Revision No. 86), which is a component of the steps necessary to abate the violation. Furthermore, no environmental harm has occurred, and in fact the potential for environmental harm has been reduced from the plan presented in MR#219. Based on the information presented in this letter, MCC requests that the Division reconsider the issuance of the NOV, and vacate the NOV as the appropriate resolution. If the Division determines that it will not vacate the violation, then we request that these facts be considered in assessing any civil penalty.