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<br />_; <br />SPECIFIC COIVIlVIENTS REGARDING THE NOV <br />The Division's violation deals with three distinct issues: 1) failure to seed the windrow <br />piles located next to the reclaimed azeas; 2) failure to sign the windrow piles located next to the <br />reclaimed azeas; and 3) failure to spread the piles per the time frames noted in the permit. We <br />assume the seedmg and sign issues apply to all five piles and the failure to spread issue applies <br />only to the two older piles. <br />1) Seedine -The purpose of seeding in a permanent stockpile is to provide a long term <br />cover to protect the topsoil from erosion. These windrow piles aze not permanent topsoil <br />stockpiles and the ahernate procedures approved by the Division treat them as such. The <br />alternative procedures never included a requirement for seeding because, as noted in the permit, <br />the piles aze left in a rough condition which, when combined with the woody plant material, <br />successfiilly controls erosion. It makes little sense to seed these temporary piles because the <br />topsoil is respread early the next year before the revegetation can achieve any significant growth. <br />During the prior discussions with the Division we were in substantial agreement on these points. <br />The two older piles also had more than 50% cover of young native grasses, forbs and <br />annuals very similar to first yeaz growth on many reclaimed azeas. When questioned, the Division <br />inspector verbally acknowledged that there was no evidence of erosion, rills or gullies on any of <br />the piles. Cleazly, our practices descnbed in the permit successfiilly controlled erosion. <br />Given the clear historical record on this issue, why has the Division chosen now, to make <br />seeding of these piles an element of an enforcement action? Since we have shown that no <br />violation of the approved ahemative topsoil practice had existed at the time of the NOV, we <br />believe the Division has simply erred in including this as part of the NOV. As such, it is <br />appropriate that the portion of the NOV dealing with seeding be vacated. <br />2) ~g -Likewise, the approved ahemative practice for these windrow piles of topsoil <br />did not requee signs. Because they were not considered stockpiles and the windrows are located <br />at the edge of reclaimed azeas, they aze simply an extension of the reclamation process rather than <br />the topsoil stockpile process. As such, placement of signs was never an issue during the <br />discussions regazdmg the alternative practice. <br />We ask again, why has the Division seen fit to include the signs as part of an enforcement <br />issue when our alternative topsoil practice did not, for good reason, include signs. We believe the <br />Division has simply erred in including this as a part of the NOV and request that this portion of <br />the NOV be vacated. <br />3) Soreadmg Time Frame - As noted previously, at least 90% of the windrow piles placed <br />in 1994 were respread in 1995. The piles not spread were those located in azeas where there was <br />no available lay down azeas because of the spoil regrad'mg schedule. Had there been areas <br />available for spreading the topsoil we would have done so. This is the first time this anomaly has <br />4 <br />