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issuance of the NOV-CDO, ,the company had already begun efforts to implement <br />portions of Technical Revision ("TR")-26 to its Mined Lend Reclamation Board <br />("NLRB") permit, including pumping ground water and managing the pumped water <br />with an evaporation system. The ultimate result of these response actions has been the <br />reversal of the hydraulic gradient. In the Division's opinion, Battle Mountain's efforts <br />with respect to the pump and treat system commenced prior to issuance of the NOV- <br />CDO and have since continued diligently. <br />Further, Battle Mountain applied for its CDPS permit on August 20, 1 X99 -- the <br />same day the Division issued the NOV-CDO. Battle Mountain also supplied ,all <br />requested information and documentation to the Division in a timely fashion, including a <br />detailed groundwater monitoring plan as contained in TR-26. Based on the at~ove, the <br />Division believes that Battle Mountain timely complied with the requirement: set forth in <br />the NOV-CDO and Amendment One to the NOV-CDO. <br />2. Shalom Ranch stated its belief that settlement of the violations is premature <br />because the final permit has not yet been issued. Similarly, the CCCD and PAES <br />commented that the Order incorrectly ends the violation period at the date on which <br />Battle Motmtain Resources, Inc. applied for a CDPS permit. They claim that the State's <br />treatment of this issue is contrary to the intent behind the CWA because any dischazger <br />can simply apply for a permit on the day it begins dischazging, and while the application <br />is pending, `Yhe dischazger operates without effluent limitations and without monitoring <br />and reporting requirements." <br />The Division submits that this is an incorrect chazacteri~ation of the way it applies <br />its Civil Penalty Policy and the way it deals with permit applications for new dischazges. <br />In the context of enforcement actions, the Division only stops calculating day s of <br />violation after the permit application is filed with the Division, and only if the violator <br />immediately took any other necessary steps to come into compliance. The Division, in its <br />discretion, believes that it is appropriate to provide the violator with an incentive to apply <br />for a permit as soon as possible, and to allow the facility to implement control measures <br />sufficient to protect water quality (such as those allowed by Amendment No. 1 to the <br />NOV-CDO) while the permit is undergoing the sometimes lengthy issuance process. <br />Here, prior to issuance of the NOV-CDO and pursuant to Amendment No. 1 to <br />the NOV-CDO, Battle Mountain immediately took the necessary steps to implement the <br />pump and treat system contemplated under TR-26 to facilitate compliance wih the <br />WQCA. The terms of Amendment One include control measures such as monitoring and <br />reporting, and were put in place to protect water quality in the Rito Seco dururg the <br />complex permit drafting process. The Division respectfully disagrees with the notion that <br />under these circumstances, terminating the violation period at the time of pennit <br />application is contrary to the intent of the Clean Water Act. <br />3. Shalom Ranch, CCCD, and PAES stated that settlement is premature because <br />surface seeps at the site have not ceased. <br />£0'd ST:£i 00.6 End 85S£998£0£:xPd <br />