Laserfiche WebLink
77. Under Colo. Rev. Stat. § 34-32-103(1.5), "affected land" exists only where the <br /> land's "surface is disturbed as a result of[a mining operation]." The Board's determination that <br /> any milling occurring on RFES' Facility constitutes a "mining operation" also makes this <br /> condition surplusage. No extractive or surface disturbing activities occur at RFES' Facility. <br /> 78. It has long been the rule in Colorado that courts may not treat words in a statute as <br /> surplusage, and reject them, unless it is impossible to attribute a rational meaning or purpose to <br /> them.Because the Board's interpretation of the relevant statutory definitions fails to give meaning <br /> to each word in the applicable statutes,the Board's determination that RFES' activities constitute <br /> a"mining operation" is incorrect. <br /> 79. The activities conducted on RFES' location consists exclusively of cleaning, <br /> refining, sorting, concentrating and manufacturing already-mined materials that third parties <br /> deliver to RFES' facilities. These materials are altered and converted into inert and/or useful <br /> products and sold to third parties for innumerable industrial, commercial, and ecological uses. <br /> Innumerable businesses accept mined products and convert those products into commercial end- <br /> products without converting their facilities into a"mining operation." <br /> 80. Because RFES' operations at its Facility do not constitute a "mining operation," <br /> neither DRMS nor the Board has statutory authority to require a reclamation permit under Colo. <br /> Rev. Stat. § 34-32-109 for those activities. <br /> COUNT II <br /> THE ORDER IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE <br /> (Colo. Rev. Stat. §24-4-106(7)(b)(VII-VIII)) <br /> 81. RFES reasserts and incorporates by reference the preceding paragraphs 1 to 80. <br /> 82. Irrespective of the substantive conclusions the Board reached, for the Order to be <br /> valid, administrative law requires that the Board provide a reasoned, rational explanation for the <br /> Order's issuance that is supported by substantial evidence. Substantial evidence is such relevant <br /> evidence that a reasonable mind would find adequate to support a conclusion. <br /> 83. A determination of whether substantial evidence exists requires review of evidence <br /> on which the Board relied as well as evidence in the record that detracts from the conclusions the <br /> Board reached. Findings that are clearly erroneous based on a review of the whole record must be <br /> set aside. <br /> 84. The Board found that mining tailings stored at RFES' Facility were placed on the <br /> ground without any secondary containment. The Board's Order does not offer any evidence to <br /> support this conclusion. The area in which the mining tailings that the inspectors observed <br /> constitutes a containment zone that is rated for approximately 750,000 gallons of fluid under EPA <br /> and Colorado Department of Public Health standards. The adequacy of the containment area has <br /> been successfully tested with water. Downhill from the main storage containment area are two <br /> additional secondary containment areas capable of restraining movement of fluids and material far <br /> - 11 - <br /> 4884-8560-1078.2 <br />