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Prior to pond construction, a similar assessment of the site was also made. The early photographs show there was no evidence suggesting that this location of the pond would not be appropriate. Failure of an internal perimeter pond slope simply could not have been predicted. We will also show that most of the failed slope was pre-existing debris rather than ~ topsoil and that the slide would have likely occurred regardless of the presence of the topsoil stockpile. Since the pond embankment itself is not in jeopardy we believe the repair of the pond perimeter slope more appropriately falls under Rule 4.05.919) which provides for maintenance rather than necessitating an enforcement action. Our operating record clearly shows that while Colowyo readily accepts the responsibility to remediate damage to regulated structures occurring from naturally occurring events we strongly believe that SMCRA did not intend that the mere occurrence of such events must require enforcement actions. Since the Regulations clearly provide for maintenance of regulated structures we believe this would have been the more appropriate course of action to address remediation of the slide area. The issuance of the NOV was clearly not justified in this situation and amounts to an arbitrary, inconsistent and excessive use of the Division's enforcement authority. For these reasons we respectfully request that the NOV C-95-005 be vacated. SPECIFIC COMMENTS Our specific comments relating to the slide area are as follows. Please refer also to the attached photographs accompanying this information for additional insight into our comments. 11 Landslides are naturally occurrinG in the area. As we noted above, landslides ~"~ ~ ~ are a naturall occurrin but un redictable henomenon of the area. Photo ra hs 1 and 2 (` .. ` ~lul~ Y 9 P P 9 P Q , ; ~ show the areas immediately north and south of the pond area and show typical examples of ~~\, landslides in the center of each photograph. _ 2) Prior to construction the topsoil stockpile area showed no signs of instability. !,~,1 ~, Photograph 3 shows the future pond location and the future topsoil stockpile location before ,~n3~ur construction. The elevated area to the right of the picture (look for the motorgrader) was a stable, reasonably flat area appearing quite suited for a small topsoil stockpile. There was no ~~~ ~ indication of any evidence suggesting that this location was anything but a stable surface area. 3) The slide area is a function of a series of shallow, perched water zones in the General area. Photographs 4, 5 and 6 show the relationship of the slide area to the zone of ~~ ~h`iS!~' springs located further to the east. In addition, out of sight within the West Pit Fill subdrain ~r ~ ~~ structure are two lateral french drains constructed to provide free flowing channels to de- ~.. water the perched water zones encountered at this lower level during subdrain construction. We believe that the water flowing from this lower zone is also saturating the debris below the topsoil stockpile, resulting in the landslide. 41 To increase protection of the topsoil stockpile. the stockpile was set back from the edoe of the pond. To further protect the topsoil, we did not want the stockpile perched directly above the edge of the pond. Rather, to provide for enhanced protection of the stockpile, we had taken extra measures to locate it away from the pond edge a distance of