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3. On July 23, 2009, the Division inspected the site. The Division saw that an <br />earthen dam located near the south permit boundary failed. The dam was about four-feet <br />high and ten-feet wide. The dam did not have an emergency spillway. When the dam <br />ruptured, sediment trapped behind the dam flowed down the drainage channel, over the <br />permit boundary onto the Longacre's property. The Division saw sediment deposits <br />extending 200-feet south of the permit boundary. <br />4. Mr. Westhoff said that the dam failed at the beginning July 2009 following <br />heavy rains. He testified that the site received 27-inches of rain in three weeks and on one <br />day about seven inches of rain in twenty minutes. He estimated that it was a 50-year rain <br />event. Pictures attached to the inspection report and presented during the hearing show the <br />remnants of the earthen dam and a river of sediment deposited downstream of the former <br />dam and beyond the site's southern permit boundary marker. <br />5. The Division mailed the inspection report with the Division's findings to the <br />Operator on August 12, 2009. <br />6. On August 14, 2009, the Division mailed a Reason to Believe a Violation <br />Exists letter to the Operator. The Division's letter described the possible violations and <br />included information regarding the hearing on this matter. <br />7. The evidence shows that the Operator failed to protect and stabilize all surface <br />areas of the affected land to control erosion effectively. Here, the Operator's earthen dam <br />became unstable and failed. The dam's failure caused the buildup of eroded sediment to <br />flow uncontrolled onto the Longacre's land. <br />CONCLUSIONS OF LAW <br />8. 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 />9. Pursuant to § 34-32.5-103 (1), C.R.S., "affected land" is the surface of an area <br />where a mining operation is conducted which is disturbed as a result of an operation. <br />10. Pursuant to § 34-32.5-116(4)0), C.R.S., the Operator must ensure that all <br />surface areas of the affected land are stabilized and protected to control erosion effectively. <br />Here, it was the Operator's responsibility to ensure the earthen dam's stability and to protect <br />Longacre's property from uncontrolled flow of eroded sediment. <br />11. Pursuant to § 34-32.5-124 (2), C.R.S., the Board may issue a Cease and Desist <br />Order prohibiting any further activities at the site that would further damage areas outside of <br />the affected land. Here, the Division did not recommend and the Board does not impose a <br />Cease and Desist Order. <br />12. Rule 3.1.6 of the Mineral Rules and Regulations of the Colorado Mined Land <br />Reclamation Board for the Extraction of Construction Materials ("Construction Rules") <br />states that "[d]isturbances to the prevailing hydrologic balance of the affected land and of the <br />surrounding area and to the quality of water in surface and groundwater systems ... shall be <br />Morgan Sand & Gravel, Inc. <br />Westhoff Pit <br />M-1977-094 <br />MV-2009-030