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being used in RFES' operations. <br /> 59. The Board observed that a concrete berm along the south side of the cement pad on <br /> which RFES' tanks were located did not fully enclose the tanks. But the Board did not reach any <br /> conclusion concerning whether there was adequate containment around the tanks. <br /> 60. The Board concluded that, although RFES' Facility was not operating at the time <br /> of inspection,there was evidence to suggest that the Facility had been running. The Board did not <br /> reach any factual findings concerning the scope or nature of operations that RFES had or was <br /> conducting at the Facility. <br /> 61. The Board observed that industrial equipment and substances were stored in and <br /> around multiple buildings on the Facility property with no secondary containment or spill <br /> prevention employed.The Board did not: (i)provide any citation for this conclusion;(ii)enumerate <br /> the evidence it was relying on to reach this factual determination; or (iii) identify the standards or <br /> regulations the Board was applying to evaluate the adequacy of containment at any individual site <br /> on the Facility property. The Board did not address evidence that RFES submitted describing <br /> containment provisions at the Facility or acknowledge evidence establishing that RFES' Facility <br /> had passed safety inspections that agencies with responsibility to enforce containment standards <br /> had conducted. <br /> 62. The Board did not reach any factual finding concerning the processes for which the <br /> equipment and substances DRMS observed on the property were used or identify any statutory or <br /> regulatory prohibitions that possession of the observed equipment and substances violated. <br /> 63. The Order states that evidence found at one of the buildings at the Facility <br /> "indicated to the Division that [RFES] has been smelting metals recovered from the milling <br /> process." But the Order neither concludes that smelting had occurred nor addresses evidence that <br /> RFES submitted explaining that no smelting occurs at the Facility. <br /> 64. The Board concluded that RFES' facility was "affected land" under Colorado law, <br /> because RFES was conducting a"mining operation" at the Facility and "the site includes storage <br /> of mine tailings and ore and structures,facilities,equipment,and materials used in[RFES]milling <br /> activities." The Board held that RFES was conducting an unpermitted mining operation in <br /> violation of Colo. Rev. Stat. § 34-32-109(1). <br /> 65. The Board directed RFES to complete an application for a reclamation permit <br /> within sixty days of the Board's Order. <br /> 66. The Board issued a cease-and-desist order prohibiting"any further activities"at the <br /> Facility. The Board's cease-and-desist order does not distinguish between RFES' operations to <br /> process mining waste and any other commercial activity that RFES conducts on the site. <br /> 67. The Board directed RFES to submit within thirty days an interim financial warranty <br /> in the amount of$130,323,00 "to cover the costs of reclaiming the affected lands." The Board's <br /> Order does not include any discussion of how the Board calculated this amount. <br /> - 9- <br /> 4884-8560-1078.2 <br />