2010-04-26_ENFORCEMENT - M1980183

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April 23, 2010 Page 2 around Pit 29 was completed. The observed ground water mounding did not occur until the slurry wall around the Stagecoach Pit was installed. According to Mr. Steve Zigan, one of the Zigan Lake homeowners: (a) there was no drainage problem from Zigan Lake until the Stagecoach Pit was built; and (b) there was a 4 foot rise in water levels in test wells once the Stagecoach Pit was built. Your March 23 Letter implicitly recognizes that the Stagecoach Pit is the cause of the problem when you refer to the water management plan as being "for the Stagecoach Pit." (emphasis added). Brannan agrees. The Board-approved slurry wall around the Stagecoach Pit (which was installed after completion of the Pit 29 slurry wall) created a dam across the ground water flow path which has created the ground water mounding problem. The remedy should appropriately be a water management plan for the Stagecoach Pit. No such water management plan is needed for Pit 29. 3. Pit 29 was a pre-existing condition which was not causing any ground water mounding at the time the Board approved the Stagecoach Pit. As such, Pit 29 cannot legally be interpreted as the "but for" cause of any ground water mounding. The sole cause for that ground water mounding was the Board's approval of the Stagecoach Pit that allowed construction of a slurry wall across the natural ground water flow without any consideration of the damming effect of that slurry wall and/or the existence of a previously approved slurry wall around Pit 29. Thus, to the extent that the observed ground water mounding constitutes "'a disturbance to the prevailing hydrologic balance" that has not been properly "minimized" as required by the Rules, that disturbance was caused by the installation of the Board-approved slurry wall around the Stagecoach Pit. Given its proximity to Zigan Lake and its aspect relative to the natural ground water flow, the Stagecoach Pit would have created the ground water mound even if Pit 29 did not exist. Pit 29 did not create the ground water mounding; it did not disturb the prevailing hydrologic balance. As such, Brannan is not in violation of the cited statute and Rule. Brannan has no responsibility for the ground water mounding, and there is no basis for the Division's "opinion" that Pit 29 is "equally to blame" for the mounding. Inspection Report at 3. There is simply no technical basis that would support the Division's burden of proving that Pit 29 caused the ground water mounding. Thus, the Division has no authority to require Brannan to remedy whatever problems have been created by installation of the Board-approved slurry wall for the Stagecoach Pit. That is why Brannan has not submitted a plan to remedy the matter. Nevertheless, in the interest of being a good neighbor, Brannan continues to work voluntarily with Frei and the Zigan Lake homeowners to develop a water management strategy for the Stagecoach Pit. It appears that Frei is nearing completion of a cost effective design that can be implemented in the near term. Once that design is finalized, Brannan intends to enter into a written agreement with Frei and the homeowners that will include a voluntary contribution by Brannan toward the cost of installation. Brannan's willingness to cooperate with Frei on the water management strategy for the Stagecoach Pit including, without limitation, contributing to the cost of installation should not, however, be viewed as an admission of any responsibility for the ground water mounding. Given the above, Brannan requests that you close out the Inspection Report and your March 23 Letter with an acknowledgement that, based on the information provided above, Brannan is not responsible for the observed ground water mounding and is not responsible for the water management strategy S:\C1ient\Brannpit29\Pineda ltr of4.23.10.doc