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14. On June 10, 2009 as a result of a hearing, the Board found Anthony Zellitti in <br />violation of § 34-32.5-116(4)(1), C.R.S., for failing to protect areas outside the affected land <br />from slides or damage during the mining and reclamation operation; MV-2009-019. The <br />Operator mined 5.1 acres outside of the existing Zellitti Pit boundary. The resulting Board <br />Order required the permittee to include the disturbed acreage in a permit. This permit <br />amendment application addresses the Board ordered corrective action in MV-2009-019. <br />15. No mining has taken place at the site since March 2008. Zellitti Properties <br />stated at the hearing and in a letter to the Division dated May 19, 2009, that it terminated the <br />Operator's access rights to the pit on or about April 30, 2008.4 <br />16. The permit amendment application includes a new access road to the site over <br />land within the amendment application. The Objector has no surface rights to the land within <br />the permit amendment application and cannot deny access to the land within the permit <br />amendment area. <br />17. The Division testified that the new access road in the permit amendment <br />application provides the basis for a legal right to enter the permit area. <br />18. The Division also asserts that based on the surface ownership and the tenant in <br />common ownership of the mineral rights to the acreage to be amended, the Applicant has <br />established legal right of entry to enter and conduct mining and reclamation on the property <br />to be added to the permit. <br />19. The Objector testified that notice regarding the permit amendment application <br />was not sufficient. The notice sent to the Objector was sent to the wrong address. The <br />Objector found out about the permit amendment application when its representative, David <br />Schneider, happened to be checking records at the Division and was informed of the permit <br />amendment application by Division staff. The record is unclear regarding the exact date the <br />Objector received the written notice from the Applicant. However, the Objector testified at <br />the hearing that it did in fact receive notice. The Objector was able to file a comment within <br />the comment period. The Objector fully participated in the application review process, the <br />pre-hearing process and the hearing. The Objector was not prejudiced by a delay in <br />receiving notice. Any technical deficiency in the notice was cured by the Applicant. <br />20. The Division recommends approving the permit amendment application. The <br />Applicant satisfied all adequacy concerns during the application process. <br />CONCLUSIONS OF LAW <br />21. The Board has jurisdiction over this matter pursuant to §§ 34-32.5-104 through <br />107, of the Colorado Land Reclamation Act for the Extraction of Construction Materials, §§ <br />34-32.5-101 through 125, C.R.S. (2008) ("Act"). <br />22. Section 34-32.5-112(7)(a), C.R.S., provides in part that an application for the <br />amendment of a reclamation permit is reviewed by the Division in the same manner as an <br />4 The civil litigation between the Applican t and the Objector was initiated by the Objector after mining in the current <br />permit area ceased. <br />Anthony Zellitti <br />Zellitti Pit Amendment Application Approval <br />M-1980-246