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been brought up during negotiations between the Operator and the various landowners of <br />some of the permitted property. Mr. Hocker investigated the existing permit boundary and <br />learned that markers that were installed in 1994 had been misinterpreted both by the Operator <br />and the landowner, and the Permittee, as the permit boundary markers. <br />5. As a result of the ongoing misunderstanding regarding the actual permit <br />boundary of the site about two acres of land outside the north boundary of the approved <br />permit has been mined. The mined land outside the permit area consists of a bench and <br />vertical highwalls about 25-feet high. The mining activities have removed the topsoil, <br />vegetation, and overburden, resulting in a complete surface disturbance. <br />6. On May 26, 2009, the Division conducted another inspection of the area <br />affected by the activities outside of the permit area. Global Positioning System <br />measurements indicate the affected area outside of the permit boundary equals 5.1 acres. <br />7. The amendment application discussed in ¶ 2 above includes the unpermitted <br />5.1 acres of disturbed land. <br />8. During the Board's on-the-record deliberation of this matter it was noted that <br />the Operator and Permittee self reported the violation when they realized the mistake. <br />CONCLUSIONS OF LAW <br />9. The Board has jurisdiction over this matter pursuant to §§ 34-32.5-104 through <br />107, and 124 of the Colorado Land Reclamation Act for the Extraction of Construction <br />Materials, §§ 34-32.5-101 through 125, C.R.S. (2008) ("Act"). <br />10. Section 34-32.5-116(4)(1), C.R.S., states that "areas outside of the affected <br />land shall be protected from slides or damage occurring during the mining operation and <br />reclamation." Here, the Operator and the Permittee failed to protected areas outside the <br />affected land from slides or damage during the mining and reclamation operation. <br />11. Section 34-32.5-124(7), C.R.S., provides for a civil penalty of not less than <br />$100 per day nor more than $1,000 per day for each day during which the violation occurs. <br />Here, the Board may impose a penalty based on 43 days of violation (from the April 28, <br />2009 inspection to the June 10, 2009 hearing date) at $100 to $1,000 per day for a civil <br />penalty of $4,300 to $43,000. <br />12. Pursuant to § 34-32.5-124(2), C.R.S., the Board may also issue a Cease and <br />Desist Order if it determines that any provision of Article 32.5 of the Act was violated. Here, <br />the Operator has already ceased operations at the unpermitted area of the site. <br />ORDER <br />Based on the foregoing findings of fact and conclusions of law, the Board hereby <br />finds a violation of § 34-32.5-116(4)(1), C.R.S., for failing to protect areas outside the <br />affected land from slides or damage during the mining and reclamation operation. <br />Anthony Zellitti <br />Zellitti Pit <br />MV-2009-019 <br />2