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-z- NOV. C-84-123 This Notice of Violation was written for "disturbance outside of the approved disturbance area". The operator had spoiled into an ephemeral drainage without approval; in one place the stream channel had been completely blocked and was retaining water behind the side cast spoil. The company contested the fact of the violation. The company contended that the plan envisioned that spoil deposition would occur within the drainage in question. The operation plan map and cross-section of the drainage thalweg depict mining occurring surrounding the drainage but indicate identical pre-mining and post-mining topographic configurations of the drainage bottom in the affected area. The text of the permit application does not reference spoil deposition within the drainage. A revision had been approved to allow construction of a scraper road within the drainage and the attendant topsoil handling. In addition, the operator had received an exemption from topsoil salvaging on the north side of the drainage, the area affected by the spoil deposition. The operator contended that the Division should have understood their intent to deposit spoil within that portion of the drainage. The Division responded that it assumed a buffer was being developed to avoid contamination or loss of topsoil. Although much of the discussion provided significant information, considered later in adjusting the proposed penalty assessment, the fact of the violation was upheld. The staff proposed the following civil penalty assessment: History $ 0.00 Seriousness $1,500.00 Fault $1,200.00 0 of proposed penalty 2,700.00 The company presented a response to the proposed penalty assessment's seriousness component. In fact, the drainage in question is closed down stream, which effectively prevents the loss of any sediment beyond that point, confining potential impacts to within the permit area. Based upon that indication, with which the Division concurred, I have reduced the seriousness component to $500.00. The company also presented a response to the fault component of the proposed penalty assessment. The Division assigned a level of fault reflecting intentional misconduct. The proposed penalty rationale referenced the operator's failure to follow the approved plan and the "appearance" that the operator was implementing a permit revision then being reviewed by the Division, prior to its approval. The operator contended that it was not guilty of intentional misconduct, but rather of improperly defining its complete mining plan within the permit and the subsequent revisions. Based upon the discussion presented by both parties and my examination of the permit and permit revision documents, I adjusted the degree of fault assigned within the proposed penalty assessment from intentional misconduct to the maximum deyree of negligence, resulting in a fault component assessment of 5750.00.