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C. It is, at this time, impossible for the Applicant to meet the standards set <br />forth in C.M.R. 6.4.19(b) and C.M.R. 6.5(4), which require proof that the mining <br />operation "shall not" or "will not" adversely affect off-site structures within the <br />two hundred (200) foot radius. Nevertheless, the MLRB concluded, without the <br />support .of substantial evidence ii; the record, and with significant crediblc <br />evidence to the contrary, that the Applicant's blasting plan poses "no possibility, <br />absent anon-compliant event, that vibration levels [from blasting at the quarry] <br />will exceed commonly acceptable levels." See Order at pazagraph 12. <br />"[C]ommonly acceptable levels" of vibration is not the standard established by <br />the Rule and should not have been used as the standard when the "affected land" <br />contains a very uncommon facility, the District's Wastewater Reclamation <br />Facility. <br />D. The Board erroneously concluded, without the support of substantial <br />evidence in the record, and with significant credible evidence to the contrary, that <br />the District's off-site structures will not be adversely affected by blasting, as <br />required by C.M.R. 6.5(4). The blasting report submitted by the Applicant relies <br />on blasting vibration analyses that are inconsistent with the types of structures <br />located ion the District's Plant. The Plant is comprised primarily of concrete <br />structures, pipelines, wells and sensitive electronic and electromagnetic <br />instrumentation. The Board based its decision on blasting vibration <br />measurements used for standard wood-frame construction and dry wall that is less <br />sensitive to vibration and more pliable. <br />WHEREFORE, the District requests this Court order designation and certification of all <br />portions of the record; and thereafter hold unlawful and set aside the Board's approval of the <br />Permit, restrain the enforcement of the approved application, and remand this case for further <br />proceedings if any are necessazy. <br />DATED this 3`a day of March, 2006. <br />i <br />SETER & VANDER WALL, P.C. <br />Original signature on file at the offices of Seter & Dander Wall, P. C. <br />/s/ Kim J. Seter <br />Kim J. Seter, #14294 <br />Staci A. Usagani, #35402 <br />DEFENDANT/CROS S-CLAIMANT <br />271 Gregory Street <br />P.O. Box 362 <br />Black Hawk, CO 80422 <br />aHCCSD/0025k/APPEA6 <br />SAUOJ@ <br />0365.OWSm <br />