2009-12-10_ENFORCEMENT - M1984043

• Permit No: M1984043
• IBM Index Class Name: ENFORCEMENT
• Doc Date: 12/10/2009
• Doc Name: Finding of facts, conclusions of Law and Board Order
• From: DRMS
• To: Pelino, Inc.
• Violation No.: MV-2009-032
• Email Name: PSH
• Media Type: D
• Archive: No

Operator with notice regarding the nature of the possible violations and information about
the Board hearing on the violations.
10. The Division staff spent 30 hours of time billed at $56.64 per hour, for a total
of $1,699.20 spent on staff time investigating this matter.
CONCLUSIONS OF LAW
11. The Board has jurisdiction over this matter pursuant to §§ 34-32-104, 105, 123
and 124 of the Colorado Mined Land Reclamation Act, § 34-32-101 et seq. C.R.S. (2008)
("Act").
12. An Operator must obtain a reclamation permit prior to engaging in a new
mining operation. § 34-32.5-109(1), C.R.S. Also, "[a]n operator who mines substantial
acreage beyond the approved permit boundary may be found to be operating without a
permit." § 34-32.5-123(2), C.R.S. Here, the Operator mined and disturbed at least four acres
beyond the existing permit boundary. The disturbed area was included in the expanded area
of the approved conversion application. However, because the Operator did not post the
required increase in financial warranty, the conversion area was not properly permitted.
Therefore, the Operator engaged in a new mining operation in the conversion area before the
conversion permit issued and is in violation of § 34-32.5-109(1), C.R.S. The Operator was
mining without a permit.
13. The Board may find a violation of §34-32.5-124(1), C.R.S., and Rule 3.3.2 of
the Mineral Rules and Regulations of the Colorado Mined Land Reclamation Board for the
Extraction of Construction Materials ("Construction Rules"), if an Operator fails to comply
with the conditions of an order, permit, or regulation. In 2006, the Board ordered the
Operator to cease and desist from any further mining activities on the unpermitted portions of
the.site, except for reclamation activities, until it complied with the July 2006 Order. The
Operator attempted to comply with the Order but was unsuccessful in posting the required
increase in financial warranty. The Operator failed to get an approved conversion permit for
the site in violation of the July 2006 Order. The Operator disturbed areas outside of the
currently permitted area, in violation of the July 2006 Order. Therefore, the Operator is in
violation of § 34-32.5-124(1), C.R.S., and Construction Rule 3.3.2(1) for failing to comply,
with the conditions of a Board Order. The Board finds 529 days of violation (from the
March 30, 2007 financial warranty due date to the first available hearing date of September
10, 2009).
14. An operator operating without a permit is subject to a civil penalty of not less
than one thousand dollars per day nor more the five thousand dollars per day, not to exceed
365 days. § 34-32.5-123(2), C.R.S. Here, the Board finds 55 days of violation from the July
17, 2009 inspection date to the first available hearing date of September 10, 2009.
15. Also, pursuant to § 34-32.5-123(4), C.R.S., in addition to any civil penalty
imposed under § 34-32.5-123(2), C.R.S., the Board shall also assess a civil penalty in an
amount not less than the amount necessary to cover costs incurred by the division in
Pelino Inc.
Mining Without a Permit and Failure to Comply
M-1984-043
MV-2009-032