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<br />Page J <br />fill settled, as did [he underlying embankment. He testified that water has collected behind the new <br />embankment which leads to further settlement of the embankment. He testified [hat spring run-off will <br />cause even more settlement. All of [his movement stretches [he pipeline, which could lead [o its failure. <br />I I. Mr. Smith testified that [he 1997 rupture of [he pipeline occurred under substantial snowpack, which was the <br />likely cause. He testified [hat when Pathfinder laid additional fill on the road, it did so under PSC's <br />supervision. He testified that the road is used by many vehicles for many reasons. <br />12. Mr. Janke testified [hat he lives downhill from the embankment in question. He testified that when the <br />pipeline ruptured in 1997, his home suffered Flood damage. <br />13. Ivlr. Smith questions whether the embankment is part of the Pathfinder Pit affected area, and if its upgrade <br />work is part of the mining operation. If it is, then the Board may consider the alleged violations. If not, the <br />requirements in question do not apply. Thus, the threshold issue in this case is whether this embankment is <br />affected land. <br />14. §34-32.5-103(1), C.R.S. defines "affected land" to exclude "off-site roads that were constructed for <br />purposes unrelated to the proposed operation, were in existence before a permit application was filed with <br />the office and will not be substantially upgraded to support the operation." <br />I5. This road existed before [he mine, so it was constructed for purposes unrelated to the operation. The issue <br />becomes whether the road has been substantially upgraded to support the operation. The road has been <br />upgraded by Pathfinder, but with assistance from the PSC. The weight of the evidence demonstrates that the <br />road is subject to multiple use. Its upgrades support the multiple uses, notjust the mine. <br />16. Under these circumstances, the road is not properly considered to be part of the affected land to be regulated <br />under the mine permit. Lands affected by mining <br />operations are normally substantially impacted by [he mine, and need to be reclaimed in order that the land <br />may be productively used post-mine. The purpose of asserting jurisdiction over lands affected by mining is <br />to ensure such reclamation. The embankment in question was there long before the mine and will probably <br />exist after the mine. The embankment supports a road that has multiple types of use, only one of which is <br />an access road for Pathfinder. It is unclear exactly what, if any, reclamation the Board would properly <br />