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to the construction project, with the Operator having already excavated and moved <br />80,000 cubic yards at the time of the inspection. The site was well maintained, and <br />erosion controls were in place. Top soil had been salvaged and a water truck was <br />being used to maintain Watkins Road and 74th Avenue. Mr. Kelly and his staff were <br />helpful and cooperative with the Division during the inspection. Mr. Kelly stated to the <br />Division that he was unaware of the need to obtain a reclamation permit for the project. <br />5. On October 10, 2019, the Division sent Operator a Reason to Believe a <br />Violation Exists letter for failure to obtain a reclamation permit from the Board before <br />engaging in a new mining operation. The Division's letter provided notice regarding the <br />alleged violation and information about the November 2019 hearing. <br />6. At the hearing, the Brock Bowles testified on behalf of the Division. Mr. <br />Bowles testified regarding his observations of the site during the inspection. Many of <br />the aspects of the operations matched the criteria the Division associates with mining <br />operations, including the size of the disturbance and the expansiveness of the operation <br />and the fact that Operator was using the borrow materials for other projects off site. <br />The Division also presented testimony regarding the definition of construction materials <br />and that the borrow material at issue here met that definition. <br />7. Operator presented testimony regarding its past experiences with <br />excavations and that it had not obtained a reclamation permit for previous projects that <br />its managers testified were similar to the one at issue here. Operator also presented <br />testimony that it was not paid for the borrow material though it was paid for the job of <br />hauling the borrow material to the work site at the Denver International Airport and for <br />dumping it there. Operator presented testimony regarding Adams County permitting <br />issues and that no one in Adams County had told Operator that it would need a <br />reclamation permit form the Board or Division. Operator argued that the borrow <br />materials at issue here were the byproduct of a project and that the definition of <br />construction materials was vague. <br />CONCLUSIONS OF LAW <br />8. 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, <br />C.R.S. (2019) ("Act"). <br />9. Section 34-32.5-109(1), C.R.S requires that all operators obtain a <br />reclamation permit prior to engaging in a new mining operation. <br />10. The Act 34-32.5-103(13), C.R.S. defines a mining operation as "the <br />development or extraction of a construction material from its natural occurrences on <br />affected land." § 34-32.5-103(13), C.R.S. (2019). Section 34-32.5-103(3), C.R.S. defines <br />"construction materials" as "rock, clay, silt, sand, gravel, ... extracted for use in <br />nonmetallic construction materials." Operator extracted construction materials, including <br />Kelly Trucking, Inc. <br />M-2019-053 <br />MV -2019-031 <br />2 <br />