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• <br />r <br />June 14, 1999 <br />Specifically, the permit indicates that an erosion control product (Soil Guard) would <br />be applied to cut slopes in small area exemption areas. The sedimentology modeling <br />used to justify the exemption from use of sediment ponds was based, in part, on the <br />use of this product. MCC representatives indicated this product was not applied at <br />the Shaft 3 area. The permit also indicates that straw bales would be placed at the <br />ends of several benches on a cu[ slope above the pad. No bales were in place at the <br />time of the May inspection. Finally, the permit indicates that all runoff from fill <br />slopes below the pad will be controlled through the use of silt fences or straw bales. <br />While runoff from much of these areas does pass through silt fence, runoff from <br />portions of the disturbed area does not pass through any silt fence. <br />In [heir request for vacation of the NOV, MCC makes five points. Those points <br />(and my brief responses) are, <br />1. The revision itt which the SAE for the Shaft 3 area was approved called for <br />straw bales at the ends of beneltes, silt fence around a topsoil pile that was not bteilt <br />and, seeding of disturbed areas. The straw bales are not in place at the ends of the <br />terrace benches. The disturbed area was seeded approximately one year following <br />construction. However, the revision also includes runoff modeling which assumes <br />the disturbed area would be treated with Soil Guard or a similar product. No such <br />treatment was applied. <br />2. The Division approved use of an "obsen~atiorad approncJt" by MCC in <br />Sylvester Gulch and acknowledged that "MCC retains some fleribility in choosing <br />particular sediment control measures" wlten approving the SAE. The Division did <br />indicate that MCC had some flexibility to choose particular sediment control <br />measures. However, it is not apparent [hat MCC implemented any sediment control <br />measures similar to or as effective as Soil Guard within the first year following <br />construction of the Shaft 3 site. That initial time period following disturbance is the <br />time when sediment control is most critical. <br />3. The Division erroneously stated that MCC did not prevent environments[ <br />harm when describing the NOV. The NOV cites "Failure to conduct operations <br />specified in the permit as necessary to prevent environmental harm". This citation <br />is for failure to implement the operations specified in the permit. Those operations <br />were intended to prevent environmental harm. However, the NOV does not cite the <br />occurrence of environmental harm. While there is evidence of sediment deposition <br />downstream from the disturbed area, that movement of sediment appears to have <br />occurred more than a year ago and vegetation is becoming established in the shallow <br />layer of sediment which left the disturbed area. Therefore, I decided to restrict the <br />citation in the NOV to failure to implement the sediment control measures specified <br />in the permit. <br />2 <br />