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the Operator has transported from the site constitutes rock and fill material for use, <br />and is or has been used, in the production of nonmetallic construction products. <br />6. The Operator does not possess a reclamation permit for the site. <br />CONCLUSIONS OF LAW <br />7. The Board has jurisdiction over this matter pursuant to sections 34- <br />32.5 -104 through 107, and 124 of the Colorado Land Reclamation Act for the <br />Extraction of Construction Materials, Article 32.5 of Title 34, C.R.S. (2010). <br />8. The material the Operator is developing and transporting or has <br />developed and transported from the site constitutes "construction materials," as <br />that term is defined in section 34 -32.5- 103(3), C.R.S. <br />9. In developing and transporting construction materials from the site, <br />the Operator is or has engaged in a "mining operation" as that term is defined in <br />section 34- 32.5- 103(13), C.R.S. <br />10. The Operator engaged in a mining operation without first obtaining a <br />reclamation permit, in violation of section 34- 32.5 - 109(1)., C.R.S. <br />11. Pursuant to section 34- 32.5- 123(1), C.R.S., the Board may issue a cease <br />and desist order if it determines that an operator or person failed to obtain a permit <br />before operating. <br />12. Pursuant to section 34 -32.5- 123(2), C.R.S., the Board may impose a <br />civil penalty of not less than $1,000 per day nor more than $5,000 per day for each <br />day during which the violation occurs. The Board may impose a civil penalty <br />against the Operator based on forty -three (43) days of violation (from the inspection <br />date to April 13, 2011 hearing) for a civil penalty of $43,000 to $215,000. <br />13. Pursuant to section 34- 32.5 - 123(4), C.R.S., the Board may assess, in <br />addition to any other civil penalties, a civil penalty in an amount not less than the <br />amount necessary to cover costs incurred by the Division in investigating the <br />alleged violation. The Division's costs in investigating this matter total $509.76, <br />based on 9 hours of staff time at $56.64 per hour. <br />ORDER <br />Based on the foregoing findings of fact and conclusions of law, the Board <br />hereby finds the Operator in violation of section 34- 32.5- 109(1),C.R.S. for failing to <br />obtain a reclamation permit prior to engaging in a new mining operation. <br />Dale and Ellen Schmidt <br />File No. M- 2011 -014 <br />MV- 2011 -012 <br />2 <br />