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Respondent's position that it deposited construction material, not overburden, outside <br />the permit area. <br />21. The Division did not present any evidence that the material in question is not <br />construction material. The Division has the burden to prove that the material is <br />overburden that was stockpiled outside of the permit area in violation of Section <br />116(4)(1). The Division has not met this burden of proof. Therefore this activity does <br />not constitute a violation. <br />Section 110c Permit <br />22. During its March 4t° inspection, the Division also found that the Respondent had <br />stripped topsoil from its access road and stockpiled the topsoil outside its permit area. <br />The Division estimates the total area disturbed by this activity at 1 acre or less. <br />23. The Respondent did not dispute this charge, and has moved the topsoil stockpile. <br />24. The Respondent violated C.R.S. § 34-32.5-116(4)(1) by transporting and stockpiling <br />topsoil in an azea outside of its approved permit azea, thereby failing to protect areas <br />outside of the permit azea from damage during mining or reclamation operations. <br />25. Since this violation resulted in off-site disturbance, a penalty is appropriate. The <br />Respondent abated the violation in a timely manner, so no cease and desist order is <br />necessary for this violation. This is a mitigating factor. <br />26. Under these circumstances, it is appropriate to penalize the Respondent for one day's <br />violation at the minimum $100.00 penalty. <br />ORDER <br />In consideration of the foregoing findings of fact and conclusions of law, the Board <br />hereby orders: <br />