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~'. <br /> <br />Michael B. Long <br />Page 2 <br />November 12, 1997 <br />Division deternmines [hat the initial seeding has failed, the Division may require Energy Fuels to <br />procure additional topsoil material in sufficient quantities to satisfy the permit requirement of <br />topsoil replacement to a depth of 4.5 inches." The Division went on to indicate that this approval <br />of a topsoil substitute "is a variance from permit conditions, [and] a technical revision to the <br />permit" would be necessary. The letter also states, "The TR application should include a copy of <br />the Topsoil Substitute Suitability Report with EFMC responses to the recommendations made in <br />the report and the fact that this approval is tentative, pending Division evaluation to occur <br />following two years from seeding." This first request to submit a technical revision was <br />apparently ignored by EFMC. The Division asked EFMC again, as a result of the mid-term <br />review, to submit a technical revision to [he permit. Once again, this request was ignored. <br />EFMC believes that the Division misinterpreted the permit requirement for vegetation sampling. <br />The crux of the issue appears to be the timing of the sampling. The permit states that vegetation <br />monitoring "will be conducted in the 2nd, 4th, and 7th year following germination." EFMC <br />believes that the seeded species, planted in November of 1995 did not gernminate until the spring <br />of this year, 1997, therefore the second growing season would be 1998. At no time was it <br />contemplated, by either party, that 2 years after seeding would be any different than 2 years after <br />germination. In fact, in a letter from Janet Binns to EFMC, it was reiterated that [he vegetation <br />evaluation would be done "two years after seeding". Furthermore, inspection reports clearly <br />document the emergence of the seeded species in the first growing season (1996). For example, <br />in an inspection report written by Harry Ranney of DMG, Mr. Ranney states, "The vegetation at <br />the site is dominated by annual and perennial weeds, and two legumes, sweet clover and milk <br />vetch." Cicer milkvetch is a key component of the seed mix at Raton Creek, and continues to <br />dominate the live vegetative cover on the reclamation to this day, particularly in the area of no <br />topsoil application. The winter of 199-1996 was indeed very dry, as EFMC states. However, i[ <br />appears, based on observations made, that ample summer rains caused germination of most <br />seeded species. Tlme Division believes that a general lack of vegetation does not provide scientific <br />evidence to a lack of moisture as the cause. In tact, in [he presence of abundant soil moisture, <br />other circumstances, such as tlme lack of topsoil or soil nutrient deficiency, could cause full or <br />partial failure of revegetation efforts. <br />The fact that EFMC did no[ conduct vegetation monitoring as required inhibits the Division's <br />and EFMC's ability to identify measures to mitigate or remedia[e [he situation, especially with <br />regard to the topsoil issue. EFMC assertion that when [hey put the specific language in the <br />permit "2nd, 4th, and 7th year following germination", they really meant "3rd, 5th, and 8th year <br />following seeding" seems fairly creative. <br />The staff's position is that [he NOV is appropriate and should not be vacated. If you have any <br />questions, please let me know. <br />