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<br />19. The Coal Act states that an operator may seek review of a notice of violation from <br />the Board, and may request a hearing to enable the operator to present information relating to the <br />issuance or continuance of a notice or violation, as well as the modification, vacation or <br />termination of an NOV. Colo. Rev. Stat. § 34-33-124(1)(a). The statute further provides that <br />when the Board is asked to undertake such review, "a hearing shall be held." <br />20. The Board did not hold a hearing on the Notice of Violation <br />21. The Coal Act further provides that after a hearing, the Boazd shall make findings <br />of fact and shall issue a written decision incorporating those findings and entering an order <br />vacating, affirming, modifying or terminating a notice of violation. Colo. Rev. Stat. § 34-33- <br />] 24(2). <br />22. In this instance, the Board vacated the Notice of Violation without holding a <br />hearing. A hearing on the merits of the NOV was scheduled on several occasions, but these <br />hearings were always canceled upon a motion of the Division or the Tatums before they could be <br />held. <br />23. The Boazd also vacated the Notice of Violation without prejudice, in violation of <br />its own statute and regulations, as well as in violation of federal regulations. <br />24. The Board vacated the Notice of Violation without prejudice as a result of a letter <br />sent by the Tatums to the Division on March 8, 2001 by the Tatums. The Tatums' letter asked <br />the Division to vacate the NOV without prejudice. If the Division proceeded as requested by the <br />Tatums, then the Tatums said they would withdraw their citizen's complaint. The Division <br />agreed, and vacated the Notice of Violation without prejudice. <br />25. The attorney for the Tatums indicated at the hearing before the Board that the <br />Tatums wanted the violation dismissed without prejudice so the Tatums could use the threat of a <br />future enforcement action to "preserve the leverage" that threat creates in enforcing any court <br />judgment gained in a civil proceeding. See Hearing Transcript, Mined Land Reclamation <br />Board, Basin Resources, Inc. at 64 (Mar. 21, 2001) (hereinafter, Transcript). <br />26. Basin objected to the vacation of the NOV without prejudice and to the denial of <br />Basin's right to be heazd on the merits, and filed a motion with the Boazd requesting adjudication <br />of the NOV. On April 10, 2001 the Board granted Basin's motion, and set the NOV for hearing <br />on Apri125, 2001. <br />27. During the hearing before the Board on Basin's motion, the Division stated on the <br />record that no violation exists at the Tatum property. This statement was made by David Berry, <br />the Division official who conducted the inspection of the Tatum property that gave rise to the <br />NOV, and the supervisor of the State of Colorado Coal Program. Mr. Berry said, when asked <br />whether there was a violation at the Tatum property, ")n our opinion, this agency has no <br />violation to pursue." Transcript at 40. <br />