2012-12-28_ENFORCEMENT - M2012044 (2)

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5. On October 26, 2012, the Division mailed the October 1, 2012 inspection report to the Operator, the landowner, and the Conejos County Land Use Administrator. 6. On October 30, 2012, the Division mailed a Reason to Believe a Violation Exists letter to the Operator and Brady Stagner, providing notice of the alleged violation and the December 12, 2012 hearing. 7. The Operator does not possess a reclamation permit for excavating material from the Sanford School Pit. 8. Prior to the Division's inspection, the Operator ceased the excavation activity in accordance with a verbal order from the Conejos County Land Use Administrator, removed the temporary crossing of the Conejos River, and backfilled and graded affected lands to conform to the surrounding topography CONCLUSIONS OF LAW 9. The Board has jurisdiction over this matter pursuant to the Colorado Land Reclamation Act for the Extraction of Construction Materials, Article 32.5 of Title 34, C.R.S. (2012). 10. The material the Operator excavated and transported from the site constitutes "construction materials," as that term is defined in section 34-32.5-103(3), C.R.S. 11. In excavating and transporting construction materials from the site, the Operator • engaged in a"mining operation," as that term is defined in section 34-32.5-103(13), C.R.S. 12. The Operator engaged in a mining operation without first obtaining a reclamation permit, in violation of section 34-32.5-109(1), C.R.S. 13. Pursuant to section 34-32.5-123(1), C.R.S., the Board may issue a cease and desist order if it determines that an operator or person failed to obtain a permit before operating. 14. The Board may impose a civil penalty of not less than $1,000 per day nor more than $5,000 per day for each day during which a violation occurs. C.R.S. § 34-32.5-123(2) (2012). Here, the Board may impose a penalty based on 45 days of violation (from the date of the inspection to the first opportunity for a Board hearing,November 14, 2012) for a civil penalty of$45,000 to $225,000. 15. In addition to civil penalties imposed under section 34-32.5-123(2), C.R.S.,the Board shall also assess a civil penalty in an amount not less than the amount necessary to cover costs incurred by the Division in investigating the alleged violation. § 34-32.5-123(4), C.R.S. In this case, the Board could assess an additional civil penalty in the amount of$2,265.60, based on 40 hours of staff time at $56.64 per hour. Cooley& Sons Excavating, Inc. M-2012-044 MV-2012-034 2