2006-09-08_ENFORCEMENT - M1978208

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Page 2 In the present case, Aspen Enterprises holds the permit. Aspen Enterprises self reported the violation and did not seek judicial review of the Board's order. ~ Upon information and belief, Elk Creek and Aspen Enterprises have a contractual relationship in which Elk Creek conducts the mining operation for which Aspen Enterprises holds the permit. These parties had contractual disputes that led to litigation. Based solely on its interpretation of the lease between these two entities, the court made an extensive ruling in which it found that Elk Creek is responsible for the reasonable costs of obtaining and maintaining an amended mining permit. The court also found based on the lease provisions that Elk Creek is responsible for the cost of reclamation including resolving any high wall issue and paying the expense of posting a reclamation bond. Again, the court's judgment is based solely on its interpretation of the private contract between these two parties. The court's judgment does not relieve Aspen Enterprises of its obligations to comply with the Board's order or its permit. Elk Creek maybe affected by its lease with Aspen Enterprises and the court's judgment in relation thereto, but it is not directly and adversely affected by the Board's order. The Board's order applies to the Aspen Enterprises, the permit holder, not to Elk Creek. As such, Elk Creek does not have standing to petition for a declazatory order regazding the Boazd's order and does not meet the requirements to ask this Boazd for a declaratory order in regard to the Board's order. Therefore, the petition should be denied. See Rule 2.5.1, 2 CCR 407-4 (person must be directly and adversely aggrieved and the petition must be to resolve controversies as to the applicability to the petitioner of any statute, rule or Board order). In addition, if this Board should choose to rule on the petition in any event, based on the permit file, the Division's position is that the correct acreage covered by the permit is 6.6 acres, not 9.9 acres, and therefore, the Board properly made this fording in regard to violation no. MV-2006- 017. Moreover, Ms. Moores' assertions that the Boazd order prevents resolution of an unsafe high wall and that remaining reserves are "sterilized" are without merit, The Board order includes a cease and desist order prohibiting mining activities outside of the approved 6.6 acre - - permit azea,-except for reclamation activities, and until such time as the off-site area is included in an approved reclamation elan. The remaining material outside the 6.6 acres maybe mined once Aspen Enterprises obtains approval of an amendment to include such azea in its permit. Since Davi Acting Director OfTce of Mined Land Reclamation cc: Juliet Moores, Elk Creek Sand and Gravel, LLC William Peterson, Aspen Enterprises Cheryl Linden, AGO ' Aspen Enterprises has not complied with the corrective actions in the Boazd order requiring submittal of an amendment application and posting a $35,000 bond. As a consequence, on September 7, 2006, the Division sent a reason to believe letter asserting that Aspen Enterprises is in violation of the Boazd's order.