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<br /> <br />2. Based on these findings, Ms. Burgmaier issued NOV <br />C-93-026 for failure to design, construct, and maintain sediment <br />control measures to minimize erosion as necessary to provide pro- <br />tection of topsoil and vegetation, and failure to maintain sedi- <br />ment within disturbed areas. See § 34-33-120(2)(j)(II), <br />C.R.S. (1984 & 1992 Supp.); Regulations for Coal Mining, 2 CCR <br />407-2, Rules 4.05.5(1)(c) and (2)(c).**1 <br />3. P&M argues that the only basis for the NOV is that <br />sediment was placed outside of areas authorized for disturbance, <br />and asserts that neither the Act nor the Rules "absolutely" pro- <br />hibits the deposition of sediment outside of areas authorized for <br />disturbance, but only requires that the operator use the best <br />technology available. In addition, P&M asserts that this matter <br />is not a sediment control problem because the coal or coal fines <br />were not transported by water, but by snow removal equipment. <br />Ms. Burgmaier properly issued the NOV. <br />Section 34-33-120(2)(j)(II), C.R.S. (1984 & 1992 Supp.), <br />requires operators to minimize disturbances to the hydrologic <br />balance at the mine site and in associated off-site areas and to <br />1** It should be noted that the Division holds no performance <br />bond for disturbance of the above-cited areas, nor does the <br />reclamation plan address disturbance or reclamation of these <br />areas. See Regulations for Coal Mining, 2 CCR 407-2, Rules <br />1.04(36); 3.02.1; 4.06. <br />-2- <br />