ENFORCE28982

• Permit No: C1989074
• IBM Index Class Name: Enforcement
• Doc Name: FINDINGS OF FACT CONCLUSIONS OF LAW BOARD ORDER
• Violation No.: CV1993053
• Media Type: D
• Archive: No

at the time of the inspection, had not received approval for the disturbed area to be
exempt from the requirements of Section 4.05.2(11 as allowed by Section 4.05.2(3).
5. The Division issued NOV No. C-93-053 as a result of these items, for the operator's failure "to remove,
store, protect, and identify topsoil," and for the operator's failure to "pass disturbed area drainage
through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving
the permit area."
6. An assessment conference was held on August 10, 1993, at which this matter was heard, but at which
the issues were considered not to have been resolved, as the permittee chose not to sign the associated
assessment conference settlement agreement.
A Notice and Order to Pay Fixed Penalty was sent to the permittee on September 3,.1993 reflecting
the following assessments:
a. History S 50.00
b. Seriousness 750.00
c. Fault 750.00
d. Good Faith Reductions 0.00
Tota/ S1.550.00
The Division cited under "Seriousness" in its Notice of Proposed Amount of Civil Penalty that "photos
indicate potential for offsite impact, and potential for unnecessary destruction of topsoil resources. No
evidence of actual offsite impact at this time."
The Division cited under "Fault" in its Notice of Proposed Amount of Civil Penalty that "Drainage control
and topsoil protection requirements are well known and are of utmost importance. However, no
evidence of intentional non-compliance. This penalty should be increased if such evidence is provided
later."
10. Landmark stated that topsoil had been salvaged and pushed aside in an effort to protect the resource,
but it had not been seeded and identified. Landmark stated that, as such, the level of fault should be
reduced from a high level of negligence to a lower level, as Landmark made an attempt to protect the
topsoil.
11. Landmark stated that the area outside of the sediment pond drainage area was less than one-tenth of
an acre, and, as such, the level of seriousness should be reduced,
CONCLUSIONS OF LAW
After consideration of the aforementioned Findings of Fact, and pursuant to the authority vested in the
Board by C.R.S. 34-33-101 et seq. and Section 5.04.4131 of the Board's Regulations, the Board hereby
concludes that:
All required advance notice of this Public Hearing was conducted by the Division in accordance with
the Board's Regulations.
2. Notice of Violation C-93-053 identified the appropriate violations and regulatory citations for the
problems found, and, as such, was appropriately issued by the Division.
3. The extent of the actual damage to the environment attributed to the disturbances identified in Notice
of Violation C-93-053 was of a less serious nature than previously determined in the Division's
June 27, 1993 Notice of Proposed Amount of Civil Penalty.