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_~~ • • <br />Mr. David C. Shelton <br />June 28, 1984 <br />Page two <br />a potential violation, remedial measures could have been taken <br />immediately to prevent further development of this situation, <br />thus obviating the need for issuance of the NOV. Accordingly, <br />Rerr Coal submits that it is unfair, inequitable and inconsis- <br />tent with the appropriate exercise of the Division's adminis- <br />trative discretion to pursue enforcement in this situation. <br />On the other hand, as we have indicated to Brian Munson and <br />Michael Savage, Rerr Coal will proceed now to take remedial <br />measures to control and limit further sediment deposition. <br />The second factor upon which we base our .request <br />for vacation is Kerr Coal's contention, that as a matter of <br />law, none of the regulatory or statutory sections cited by the <br />Division as the legal predicate for the NOV are properly ap- <br />plicable to the factual situation which is the subject of this <br />enforcement action. Specifically, the cited regulations - <br />namely, §§ 4.14.1(2)(b) and 4.05.5(2)(c) both relate to con- <br />trol and retention of sediment deposition with respect to hy- <br />drologic impacts. In this case, the sediment was simply de- <br />posited on adjacent surface areas within the permit boundar- <br />ies. Thus, there is no demonstrable hydrologic impact such as <br />that intended to be prevented by the cited regulatory sec- <br />tions. The third cited provision, § 4.18(1), relates to ad- <br />verse impacts on wildlife. Again, there has been no demon- <br />stration that the deposition of this sediment has any adverse <br />impact on wildlife populations located in or adjacent to the <br />permit area. As confirmed by Michael Savage, the only vegeta- <br />tion impacted by the sediment deposition was certain salt <br />brush which does not play a significant role as a source of <br />browse for any wildlife populations. <br />Based upon the factors we have set forth above, Kerr <br />Coal respectfully requests that the Division exercise its ad- <br />ministrative discretion to vacate the subject NOV. Thank you <br />for your consideration. <br />Very truly you~s, <br />~.., 1 ~. <br />Michae McCartP~y <br />~_ <br />MSM:bb <br />