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<br />because it precludes the Board and the Division from demonstrating that they have either taken <br />appropriate action in response to a ten day notice, or have good cause for not taking such action. <br />Based on the Record in its Proceedings, the Board Must Vacate the NOV with Preiudice <br />38. The statements made in paragraphs 1-37 are hereby incorporated by reference. <br />39. Because the Board has an obligation to determine the existence of a notice of <br />violation once an enforcement action has been brought by the Division and appealed to the <br />Board, then the record below is necessarily incomplete, and further proceedings aze mandated. <br />40. However, if this Court determines that the record before the Board is in fact <br />complete, the statement of the Division that no violation exists is unequivocal and <br />uncontroverted. <br />41. Given that uncontroverted statement on the record, the Boazd must (i) find as a <br />fact that no violation exists, and (ii) vacate the NOV with prejudice. <br />WHEREFORE, Basin respectfully requests that this Court remand this matter to the Boazd <br />either (1) to enter a finding of fact that no violation exists, and [o vacate the NOV with prejudice, <br />or (2) to hold a hearing to determine whether a violation of the Coal Act exists based on the facts <br />set out in the Divisions inspection of October 2~, 2000. <br />Dated: July l 1, 2001 <br />DAMS GRAHAM & STUBBS LLP <br />~~ ~ ~-~ <br />William A. Bianco, No. 2937 <br />Scott W. Anderson, No. 17395 <br />Matthew J. Smith, No. 32043 <br />Plaintiff s Address: <br />c/o Peak Project Management <br />3800 County Rd. 63.9 <br />Trinidad, CO 81082 <br />