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After hearing this testimony and considering the evidence presented, I have come to the following conclusions: History A $0.00 penalty is appropriate for history. Seriousness I believe that a violation did occur and the seriousness component of the violation was properly assessed. Damage to adjacent undisturbed areas was cleazly documented and not disputed. What was disputed related to whether the area affected by the slide was included in an area that could be routinely disturbed? The concept of "minimal disturbance", as approved by the Division, related to acceptance of the fact that overland flow from the disturbed area would be routed through un-improved drainage features. Specifically, surface run-off from reclaimed azeas would be allowed to flow down natural drainages in the adjacent and previously undisturbed azeas without specific and conventional design modifications. Therefore, it was acknowledged that erosive velocities may occur in the channel invert and the minimal disturbance associated with this erosion was an acceptable trade-off or alternative to significant channel engineering and improvement in an otherwise remote and steep area. However, this concept was not to be applied to azeas adjacent to but well out of the drainage channels. Any disturbances in those azeas would undergo normal mining and reclamation treatment including, topsoil salvage, re-grading, topsoil replacement and seeding. The violation that occurred was the result of a failure of the drainage containment system which resulted in damage to azeas where none was previously anticipated. Therefore, the seriousness component shall stand as assessed at $750.00. Fault There is no disputing that water broke containment and flowed down to and across a previously undisturbed slope, thereby, causing a slope failure and slide. However, the operator presented evidence showing this did not result from failure of the approved diversion ditch (PM-4C) design or installation, but was the result of snow build-up creating a damming effect across PM-4C. This resulted in water backing up and over- topping the diversion both at PM-4C and the light-use road drainage ditch below PM-4C. Evidence presented at this conference indicates that this event would be more properly included in the unavoidable category, although proper maintenance may have prevented the violation from occurring. Therefore, the fault component of the proposed assessment will be reduced from $250.00 to $100.00. Number of Davs of Penalty Assessed I concur with I day. Good Faith Although the NOV has not been fully abated, the operator did rapidly comply with the initial abatement step and has been working diligently towards final abatement having completed two of the three abatement steps as of the date of the assessment conference.