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Ms. Virginia Brannon <br /> Mr. Russ Means <br /> October 12,2022 <br /> Page - 2 - <br /> The Board's September 1 Order states that, "by milling ore and mine tailings," RFES is <br /> engaged in "mining operations" at the Facility. But the Board's cease-and-desist instruction is not <br /> limited to "mining operations." The Order directs instead that RFES and RFES' owners, David <br /> Emslie and Paul Danio, shall cease-and-desist from"any further activities"at the Facility,"except <br /> those activities approved by [DRMS] in writing."3 <br /> As DRMS is, or should be, aware, RFES' Facility is used to process a great deal more that <br /> ore and mine tailings. RFES also uses its Facility to process innumerable products in RFES' <br /> recycling and manufacturing operations including, but not limited to, solar panel glass, computer <br /> boards, scrap jewelry, industrial metal, and consumer and industrial electronics. RFES writes at <br /> this time because the broadly worded phrasing of the cease-and-desist instruction in the Board's <br /> Order could theoretically be construed to prohibit these aspects of RFES' operations, none of <br /> which have any relation to mining. <br /> RFES presumes that the Board did not intend to enjoin any aspect of RFES' operations that <br /> are beyond the scope of DRMS' regulatory jurisdiction under the Mined Land Reclamation Act, <br /> Colo.Rev. Stat. §§ 34-32-101 to-127("MLRA").4 Consistent with that understanding,RFES does <br /> not interpret the Board's cease-and-desist order to prohibit RFES' use of the Facility for any work <br /> that does not involve processing ore and mine tailings. In an abundance of caution, however, and <br /> given the lack of precise language in the Board's Order, RFES requests that DRMS confirm in <br /> writing that the Board's cease-and-desist directive does not apply to any aspect of RFES' <br /> operations at the Facility other than the processing of mining waste.' Because uncertainty over <br /> RFES' ability to use the Facility to conduct operations unrelated to mining waste is already having <br /> deleterious effects on RFES' ability to service its non-mining customers and causing on-going <br /> Ct.,Denver Cnty.). The validity of the Board's determination and the substantive merits of RFES' <br /> judicial action are outside the scope of this correspondence. <br /> 3 Order at 5 (emphasis added). <br /> 4 The Board's September 1 Order does not expressly assert that DRMS has regulatory jurisdiction <br /> over any operations not involving mined material and no basis for such jurisdiction exists. The <br /> land on which RFES' Facility is located is zoned as Industrial-Two (1-2"). Uses permitted within <br /> an I-2 zone include: (i)chemicals,heavy or industrial; (ii) coal and coke; (iii)metals,extraction or <br /> smelting; (iv) casting, sheets or bars; (v) rock crushing; (vi) foundry; and (vii) laboratory. RFES <br /> does not interpret any communication RFES has received from DRMS as asserting that any aspect <br /> of RFES' processing of non-mining materials is impermissible at RFES' Facility or that DRMS <br /> would have authority to regulate the processing of material other than mining waste. <br /> 5 RFES' request that DRMS clarify the scope of the Board's cease-and-desist instruction should <br /> not be interpreted as a concession that the Board possessed the authority to issue the cease-and- <br /> desist directive in the first instance. Whether the cease-and-desist directive exceeds the Board's <br /> statutory authority is more properly at issue in RFES' petition for judicial review of the Order. By <br /> making the instant request, RFES expressly reserves and does not waive any objection, defense, <br /> or claim RFES is entitled to bring in the recently filed litigation or otherwise under applicable law. <br /> 4858-3275-5768 2 <br />