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t Assessment Office • • Office of Surface Mining May 17, 1979 Page Five The lack of a sign at the point requested should be Consid- ered as a minimal problem that had never surfaced as SEI was operating in good faith according to the USGS approved exploration plan. For these reasons, we urge you not to assess a penalty. 5. The fifth alleged violation states that SEI failed "to main- tain (a) diversion ditch so as to prevent additional con- tributions of suspended solids. The sides of the diversion have slumped into stream flow and small piles of coal have been deposited in the channels of the diversion." Once again, SEI asserts that it is an exploration operation being conducted pursuant to an approved exploration plan. The OSM did not have jurisdiction to issue this violation. There are no piles of coal in the diversion channel itself, but the coal does naturally outcrop in the channel. The diversion channel was bermed and some coaly material was inadvertently included as part of the berm. It was the understanding of the SEI agent served with this notice that the OSM inspector wanted the coaly material in the berm removed and replaced. SEI has undertaken to abate this. With respect to the part of the violation which states that the sides of the diversion have slumped into the stream flow, SEI points out that the rain, snow and normal ground melt have caused the sides of the diversion ditch to slump. The diversion ditch was constructed in accordance with an approved modification of the USGS approved exploration plan and SEI continually maintains the ditch. At the time of the inspection, SEI was in the process of restoring the sides of the diversion ditch and - stabilizing them as a part of its routine maintenance pro- gram. For these reasons, no penalty should be assessed. 6. The sixth alleged violation states that SEI failed "to salvage topsoil prior to surface disturbance" on the parking lot pad site. SEI points out that the parking pad (less than 1/10 of an acre in size) is part of the USGS approved exploration plan governing this exploration operation and that the OSM inspector did not have juris- diction to issue this violation.