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5. On November 8, 2016, the Division mailed a signed copy of the Reason to <br />Believe a Violation Exists letter. The Division's letter provided notice regarding the alleged <br />violations and information about the December 15, 2016 hearing. <br />6. On November 8, 2016, the Operator sent the Division a letter requesting a <br />postponement of Board items due to health issues. The Operator also provided an update <br />on the progress being made to rectify the situation. <br />7. On November 15, 2016, the Operator sent the Division a letter stating that a <br />survey had determined that the affected area Is less than 13 acres, and the excavation lies <br />within the original permit boundary. The Operator admitted that stored equipment, <br />stockpiled topsoil, and stockpiled crushed aggregates remained outside the permitted <br />boundary, affecting unpermitted land. The Operator admitted that it is not possible to <br />confute tete mine to the original permit -boundary, and -requested further guidance as to <br />how to resolve the issue. <br />8. On December 7, 2016, the Operator admitted the violation and agreed to the <br />Division's recommendations to the Board. <br />CONCLUSIONS OF LAW <br />9. The Board has jurisdiction over this matter pursuant to the Colorado Land <br />Reclamation Act for the Extraction of Construction: Materials, Article 32.5 of Title 34, CRS. <br />(2016). <br />10. The material that the Operator extracted or developed at the site constitutes <br />"construction material" as that term is defined in section 34-32.5-103(3), C.R.S. <br />11. Section 34-32.5-109(1), CAS provides that "before engaging in a new <br />operation, an operator shall first obtain from the board or office a reclamation permit" By <br />mining 5.36 acres of land beyond the approved permit boundary, the Operator engaged In a <br />new operation without first obtaining a permit, in violation of section 34-32.5-109(1), <br />C.R.S. <br />12. Under section 34-32.5-116(4)(1) C.R.S., it is the Operator's responsibility to <br />protect areas outside of the affected land from slides. or damages occurring during the <br />mining operation. <br />13. Pursuant to section 3432.5-123(1), G.R.S., the Board may Issue a cease and <br />desist order when it finds that an operator has failed to obtain a valid permit <br />14. The Board -may impose a civil penalty of not less than $1,000 per day or more <br />than $5,000 per day for each day during which a violation occurs. C.R.S. § 3432.5-123(2) <br />(2016). Here, the Board mayimpose a penalty based on thirty-seven (37) Oys of violation <br />(from the November 8, 2016 Reason to Believe letter to the December 15, 2016 hearing) at <br />$1,000 to $5,000 per day for a civil penalty of $37,000 to $185,000. <br />Wagner Construction, Inc. <br />M-1999-0018 <br />MV -2016-061 <br />