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The 4/29/81 Division inspection report contains a statement that <br />"the Goat Trail is pre-law and therefore exempt from Rule <br />4.03.3(2)(f)". The citation does not appear to fit the Regulations <br />as currentl}' structured since the Geat Trail is classified as an <br />access road. As discussed immediately above, however, the road was <br />exempted from certain design and construction requirements. The <br />same inspection report discussed a problem with conveyor transfer <br />point disturbance not being routed through a sediment pond and <br />detailed the proposed installation of a culvert above the first <br />switchback below the transfer point to address the problem. <br />An inspection report of 9/22/91 noted "...breaches in drainage <br />berms which caused minor erosion along the slope of the road", and <br />specified that "all gullies deeper than 9 inches should be <br />reclaimed...". <br />A letter of 10/30/81, from John Hinton of P&M stated that regrading <br />of the rills was impossible because of the steep side slopes, and <br />proposed instead that P&M would prevent water from reaching the <br />rills by maintaining berms and that the area would be stabilized by <br />seeding. An inspection report of 11/27/81 appears to indicate that <br />the Division concurred with this approach. <br />My conclusion, in light of review of the above information, is that <br />the NOV was appropriately issued. It would appear likely that the <br />gullies below road ditch discharge points were in place, to some <br />extent, prior to the enactment of SMCRA. However, the rills and <br />gullies which were the subject of the inspection reports and <br />correspondence submitted as evidence by P&M appear to relate to <br />erosion caused by berm breaches, not to erosion caused by road <br />ditch discharge. Excessive erosion appears to have occurred in <br />these locations and based on Ms. Morrisons's observations, may be <br />continuing. The Goat Trail was not granted an exemption from the <br />requirements of 4.03.2(1), to "...control or prevent erosion ... or <br />damage to public or private property". <br />Civil Penalty Assessment <br />Proposed Penalty Assessment <br />History $ 0.00 <br />Seriousness 1000.00 <br />Fault 750.00 <br />Good Faith 0.00 <br />Total $1750.00 <br />History <br />The History component was not disputed. <br />Seriousness <br />I find that gullying of the extent documented indicates that <br />