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_ S_ <br />Memo - J. Stevens, M. Long - 2 - April 13, 1990 <br />The wording in paragraph 1 of page 2.05-28 is also of particular importance. <br />The position presented on pages 2.05-28 and 4.09-12 was approved as part of <br />the final permit package. The attached memoranda from Jim Pendleton dated <br />June 16, 1981 and June 30, 1981 indicate the Division's concurrence. The <br />concurrence was conveyed to the operator by our letter from Robert Liddle to <br />Gary Meyers, dated June 30, 1981 (copy attached). It should be noted that <br />this information was presented to the OSM inspec for prior to his issuance of <br />the above-referenced report. <br />The Division acknowledged and approved the operator's contention that the <br />overburden pile was constructed prior to the inception of the permanent <br />program, and that the pile was therefore not subject to any of the <br />requirements of Rule 4.09. The approval was based upon the operator's <br />commitment that no additional material would be added to the pile. There is <br />no evidence that this condition has been violated. <br />Since the operator was not required to comply with any of the 4.09 provisions, <br />a revegetation certification is not required. It may be useful to note, <br />however, that revegetation was documented in the Annual Reclamation Reports <br />dated December 16, 1983 and January 10, 1985 (portions copied and attached <br />hereto). <br />The OSM inspector notes that our Renewal Adequacy letter requests information <br />regarding the pile. The request was made to avoid spending Division time <br />tracking archived records. The request was exploratory in nature, and was not <br />intended to cover an existing violation. It appears that when the current <br />tdine No. 3 permit (C-84-062) was approved and separated from the previously <br />existing document (C-81-036), we did not provide perfect tracking of all <br />previously existing approvals. Regardless, the operator was granted a legal <br />exemption from Rule 4.09 for the overburden pile at Mine No. 3, and the <br />Division must abide by that approval. For these reasons, no violation of <br />4.09.19(11) exists, and none should be cited. <br />4.05.2(1) <br />This regulation requires that all disturbed area drainage must be treated <br />prior to existing the permit area. It is imperative that this Rule be <br />considered together with Rule 4.05.2(3) which specifically empowers the <br />Division to grant exemptions to Rule 4.05.2(1). Such exemptions are termed <br />"small area" exemptions, and these are routinely granted by this agency. Such <br />an exemption was granted for the "1983 seeding above the Homestead Ditch." <br />Documentation regarding this approval is attached, and it was presented to the <br />OSM inspector during the March 21, 1990 inspection. Since the Division <br />approved the ground configuration observed during the inspection as a small <br />area exemption, no violation exists. <br />