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and direct the commingled flow to runout points at certain <br /> switchbacks such as the two locations identified in NOV-24 . The <br /> runouts direct the water flow into drainages on the undisturbed <br /> slope for delivery to sediment control structures at the base of <br /> the slope. <br /> NOV-24 alleges that P&M failed to maintain the Goat Trail to <br /> control or prevent erosion as evidenced by the two runout <br /> locations identified in the NOV. However, there is only a single <br /> observation of these sites by the CDMG Inspector. There is no <br /> evidence or indication as to whether or not the condition that <br /> existed on the date of the inspection was in fact unstable and <br /> that erosion was not controlled. Further, there is no <br /> indication, other than the mere suggestion in the NOV, that the <br /> runout drainages were actually deepening or enlarging as a result <br /> of runoff from the access road. P&M agrees that a watercourse <br /> commonly known as a gully exists at each of the runout locations. <br /> However, the mere existence of a gully does not provide any <br /> factual basis to allege that the channel is deepening or <br /> enlarging at an uncontrolled rate and the mere allegation of such <br /> an occurrence without factual basis to support it is not <br /> sufficient to support the issuance of the NOV. The Office of <br /> Surface Mining Reclamation and Enforcement ("OSMRE") has issued a <br /> policy directive concerning active erosion under The Surface <br /> Mining Control and Reclamation Act of 1977 . In responding at <br /> 52 Fed. Reg. 34394 (September 11, 1987) to a request for rule- <br /> making by Peabody Coal Co. to conform the interim program and <br /> permanent program on rills and gullies, OSMRE stated: <br /> Under either regulatory provision, as the policy <br /> directive indicates, observation of a rill or gully is <br /> -4- <br />