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<br /> <br />and sedimentation. <br />Furthermore, switchbacks on the road at road water release <br />points also were causing severe erosion. An 11-foot deep gully <br />had formed at the road switchback in the vicinity of Conveyor <br />Transfer Point A/B, exposing roots and damaging stands of Oak <br />Brush. Road drainage at the second switchback down from the shop <br />had formed a gully eight feet deep. <br />2. Based on these findings, Ms. Burgmaier issued an NOV <br />for failure to ensure that the construction and maintenance of <br />access roads into and across the site of operations will control <br />or prevent erosion and siltation, pollution of water, or damage <br />to public or private property. See § 34-33-120(2)(q), C.R.S. <br />(1984 & 1992 Supp.); Regulations for Coal Mining, 2 CCR 407-2, <br />Rule 4.03.2(1). <br />3. P&M alleges that primary drainage control is done by <br />grading the road into ditches and also that a safety berm has <br />been constructed on the outslope of the road. However, the <br />safety berm and road ditches were not in place at the time of the <br />inspection. Rather, runoff was flowing from the inside ditches, <br />across the road surface, and through breaches in the safety berm, <br />creating large gullies in the undisturbed land between road sec- <br />tions. <br />P&M also argues that the NOV is not sufficiently supported <br />because the condition of the site was only observed on one occa- <br />-2- <br />