_GENERAL DOCUMENTS - C1981017 (138)

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s 2 Secondly, there is no evidence to suggest that the material on the pre-law refuse pile which has slumped did so as a result of the ditch' s presence. The ditch has been in place since 1964 . The lower portion of the refuse pile was built at approximately the same time. Movement of refuse or cover material on the pile may be due to many causes, including saturated conditions in the pile, surface slippage, and/or surficial erosion. Assuming the ditch to be the cause of any movement is purely speculative and, not adequate grounds for an enforcement action. Without evidence of a violation, additional enforcement action is not warranted at this time. This finding is consistent with OSM Directives at REG-12, paragraph 3 .b. , which indicates that enforcement actions shall be delayed when "technical assistance or further investigation is needed to confirm the existence of a the violation" . DMG intends to investigate this matter further, as discussed below. In AFO's August 4 , 1993 response to DMG, AFO makes four points with which DMG disagrees. First, AFO claims two areas were observed where material had slumped from the pile into the ditch. While there are small quantities of refuse material next to the ditch, there was no material in the ditch at the time of the joint inspection. DMG can only agree that the material near the ditch came off the refuse pile some time between 1964 and 1993 however, the material was not in the ditch and is not subject to regulation. Secondly, AFO states that, "areas where slumping on the slopes is evident could fail and destroy the existing ditch" . While it is true that future failure of the refuse pile could destroy the ditch, enforcement actions cannot be taken based upon the possibility of future events occurring. Thirdly, AFO states that DMG's response to the TDN "contends that the presence of the ditch is not causing the slope to fail" . DMG's July 22 , 1993 letter made the point that the cause of movement of refuse material was not known. DMG did not conclude that the slope failure was not due to the presence of the ditch. It is the opinion of the DMG that the cause of any instability is unknown. However, due to the ongoing concern about stability of the refuse pile, DMG will conduct a geotechnical evaluation to determine the cause of apparent instability of the toe of the pile. Should the regulated ditch be determined to be the cause of instability of the pile, appropriate enforcement action will be taken. This investigation will be concluded in the next thirty days. Finally, AFO states that cribbing material which has been in contact with ditch flows has rotted and caused slope failure. The wooden cribbing on the refuse pile is located above the elevation of the ditch and therefore is not subject to wetting by ditch flows. DMG is not aware that this material has ever been in contact with flow in the ditch.