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<br /> <br />Notwithstanding the measures called for in the appro- <br />ved permit application, Kerr Coal voluntarily provided what it <br />believed to be an even more effective method for preventing <br />wildlife contact with the pond by suspending wire mesh over mos <br />of the pond's surface. The method adopted by Kerr Coal is more <br />costly and requires greater maintenance than stringing wires <br />with brightly colored ribbons over the pond, which was all Kerr <br />Coal was required to do under the terms of its approved permit. <br />As a result of the additional maintenance required for <br />the wire mesh system, at times the mesh would sag at certain <br />points. During the Division's prior inspections, such sagging <br />was brought to the attention of Kerr Coal and promptly reme- <br />died. However, during Mr. Savage's March 25, 1982, inspection, <br />this practice of cooperation and good faith in the maintenance <br />of a voluntary mitigation measure was replaced by the issuance <br />of Notice 82-17. <br />In view of the fact that the use of parallel wires <br />with colored ribbons as called for in the approved permit docu- <br />ment is intended to function only on a "scarecrow" type theory, <br />rather than providing a physical barrier to wildlife contact, <br />the wire mesh installed by Kerr Coal, even in a slightly sagging <br />condition, satisfies the mitigative requirements called for by <br />the permit. Under these circumstances, the issuance of this no- <br />tice of violation is contrary to S.R. 5.03.2 and C.R.S. 1973, <br />§34-33-123(2). Furthermore, the use of formal enforcement pro- <br />cedures to require strict compliance with voluntary mitigation <br />measures is inconsistent with the cooperative spirit that has <br />existed between Kerr Coal and the Division. Such measures will <br />only cause Kerr Coal to revert to literal compliance with the <br />requirements of its permit. <br />3. Notice of Violation 82-19 <br />The nature of this violation is stated to be that: <br />"The Permittee has failed to maintain water <br />quality monitoring records at the mine site. Re- <br />cords on site are not current nor [sic] com- <br />plete." <br />-4- <br />