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7. On May 16, 2019, the Division sent Operator a Reason to Believe a <br /> Violation Exists notice informing Operator that the matter had been scheduled for a <br /> hearing at the Board's June 26-27, 2019 meeting. <br /> 8. At the June 26, 2019 hearing, the Division presented testimony <br /> regarding the state of the highwalls at the site. In particular, the Division testified <br /> that portions of the highwall had no benches as required by the conditions of the <br /> permit. In addition to the conclusion of the professional engineer in the report <br /> submitted by Operator that there were no benches in portions of the highwall, <br /> Michael Cunningham of the Division testified that his visual observance of the <br /> highwalls also confirmed that there were no twelve foot benches as required by the <br /> permit. <br /> 9. At the hearing, the Operator presented testimony arguing that the <br /> required benches were in the highwall but that it had difficulty in locating evidence <br /> in time for the hearing. Operator requested a thirty-day extension to give her time <br /> to get professionals in to evaluate the highwall. Operator's assertion that the <br /> required benches exist was contrary to the report submitted by the professional <br /> engineer as part of Operator's TR05 submission and not supported by any evidence <br /> other than a claim that "innovative" blasting techniques generated different <br /> velocities in the rock. <br /> CONCLUSIONS OF LAW <br /> 10. The Board has jurisdiction over this matter pursuant to the Colorado <br /> Land Reclamation Act for the Extraction of Construction Materials, Article 32.5 of <br /> Title 34, C.R.S. (2018) ("Act"). <br /> 11. Sections 34-32.5-124(1), C.R.S. requires compliance with Board orders, <br /> permits, and regulations. Operator has failed to comply with Stipulation 1 of the <br /> permit because the existing highwall does not comply with the configuration <br /> approved in the permit (12 foot benches and 35 foot highwalls). Accordingly, the <br /> Operator has violated section 34-32.5-124(1), C.R.S. <br /> 12. Pursuant to section 34-32.5-124(2), C.R.S., the Board may issue a cease <br /> and desist order when it finds that an operator has failed to comply with any <br /> provision of the Act, a permit, or regulation. The Operator has violated section 34- <br /> 32.5-124(1), C.R.S. <br /> 13. Section 34-32.5-124(7), C.R.S. provides for a civil penalty of not less <br /> than $100 per day nor more than $1,000 per day for each day during which an <br /> operator violates or fails to comply with the conditions of an order, permit, or <br /> regulation. Here, the Board may assess a civil penalty of$4,100 to $41,000, for 41 <br /> Elk Creek Sand and Gravel, LLC <br /> M-1978-208 <br /> MV-2019-015 <br /> 3 <br />