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<br />Mr. Michael Long <br />June 14, 1995 <br />Page 3 <br />The fact that a slide occurred after extraordinary precipitation does not <br />independently support a violation because the measure of compliance is whether Trapper <br />achieved the 1.3 safety factor. Nor does the suggestion of ground movement in this area <br />in 1993 indicate that Trapper failed to meet the 1.3 standard. The situation in 1993 <br />mentioned in Joe Dudash's letter dated May 30, 1995, occurred prior to Trapper's final <br />grading of the area. <br />Even though no violation occurred, Trapper acknowledges its responsibility to <br />salvage displaced topsoil to the extent possible, to repair the slide area and to reestablish a <br />stable slope, all of which Trapper intends to do. But, the fact that additional repair work <br />is necessary does not mean that Trapper committed a violation. It merely means that <br />Trapper has not completed its continuing obligations under the Permit, the regulations <br />and the Act. <br />Penal Assessment <br />The Division is authorized, but not required, to assess a civil penalty for an NOV <br />under Rule 5.04.5(1) when no cessation order is issued. If the Division finds that a <br />violation occurred (despite the explanation above), then the Division should exercise its <br />discretion not to assess a penalty in this case. The slide occurred due to the extraordinary <br />precipitation despite Trapper's compliance with the approved backtilling and grading plan <br />in the Permit. In addition, Trapper is fully committed to repairing the slide area and <br />restoring a stable slope, whether or not a violation is found or a penalty is assessed. <br />Accordingly, a civil penalty in this case would serve no purpose. <br />We will address the assessment criteria in the event the Division proposes a civil <br />penalty. First, no assessment for history should be made. Trapper has received only one <br />NOV in the last eight years. It was issued more than a year ago on March 31, 1994. See <br />Rule 5.04.5(3)(a)(ii)(C). <br />Second, Trapper cannot address the seriousness criteria fully until it completes its <br />investigation of the circumstances. We can say now, however, that the effects of the slide <br />were confined within the permit area. Those effects will be temporary because the repairs <br />will be completed during this construction season. In addition, no other structures or <br />resources were threatened or damaged by the slide. <br />IIOVd-I, dIINS <br />