2011-06-30_ENFORCEMENT - M2011014

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DALE AND ELLEN SCHMIDT 472 Meadows Drive Pagosa Springs, CO 81147 (970) 946-6262 Mined Land Reclamation Board do Colorado Division of Reclamation, Mining, and Safety 1313 Sherman Street, Room 213 Denver, Colorado 80203 VIA E -mail with Certified Letter to follow Subject: Petition for Reconsideration, M- 2011 -014, MV- 2011 -012 Dear Ladies and Gentlemen: RECEV ON 30 2011 Division of Reclamation, Mining and Safety 27 of June 2011 In accordance with Rule 2.9 of the Construction Materials Rules, we hereby petition the Board for Reconsideration of the Decision, which we understand has an effective date of the 9 of June 2011, per the "Notice of Appeal Rights" on the last page of the Board's Findings of Fact, Conclusions of Law and Order, which we received on the 16 of June 2011. The grounds justifying reconsideration are: 1. All facts were not presented completely and in proper context by both the Division and by ourselves, in the original hearing in May of 2011, to include: a. The excavation did not include a "pit floor" and "highwall," but rather, were the planned (and partially completed) subgrade of a parking area and storage building (garage and shop), and the unfinished walls of a partially earth- sheltered structure to be built, using alternative building techniques. b. The material excavated was only that necessary to complete the plan of construction as determined by ourselves and laid out before beginning the work. The site is unusable for the purpose for which we purchased the site without removing the material, and there is no room on the site for storage or use of the materials excavated. c. The materials themselves were not sold, but persons needing fill materials on their own property were charged for the cost of loading, hauling and unloading the material on their site. However, income received for loading, hauling, and unloading (based on equipment hours and mileage) was used to offset overall costs of construction on this property. d. We are unaware of any "nonmetallic construction products" which excavated materials were used to produce or manufacture; as far as we know, the materials were used by the people who took the materials for backfill and other purposes. We did not knowingly provide the excavated materials to anyone for the purpose of producing nonmetallic construction products, and we do not think the material was suitable for such use without some kind of processing. e. The materials excavated and removed were common earth and included rocks, but were not sand, gravel, or other aggregates as we understand those definitions. There was no processing of earth to produce rock, clay, silt, sand, gravel, or other materials as defined in Title 34, CRS Article 32.5. Indeed, as many of the rocks excavated in the earth as could be easily separated out (when digging out the earth) were, since we wanted to and are using them on -site as part of the construction of our project.