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exceeding the amounts stored from this storage area. <br /> 85. The Order observes 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 Order does not,however,enumerate the factual evidence the Board was <br /> relying on to reach this factual determination. The Order contains no discussion of evidence that <br /> RFES submitted describing containment provisions at the Facility and fails to acknowledge <br /> evidence establishing that RFES' Facility had passed safety inspections that agencies with <br /> responsibility to enforce containment standards had conducted. <br /> 86. 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." DRMS' conclusion that RFES was engaged in smelting was based on DRMS' mistaken <br /> assumption that a furnace located on the property was a kiln. The Board's Order omits any <br /> reference to DRMS' error or evidence that RFES submitted explaining that no smelting occurs at <br /> the Facility. <br /> 87. The Board acknowledged that DRMS had confirmed that one of the metal tanks at <br /> the Facility was empty and that there was no evidence that either of the other two metal tanks was <br /> being used in RFES' operations. <br /> 88. The Board did not reach any factual finding concerning the processes for which the <br /> equipment and substances DRMS observed on RFES' Facility were used or identify any statutory <br /> or regulatory prohibitions that possession of the observed equipment and substances violated. The <br /> Board's Order identifies no evidence distinguishing the equipment and substances observed on <br /> site that were used for alleged"mining operations"from equipment and substances that RFES uses <br /> for refining, recycling, and processing non-mining material. <br /> 89. 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.The Board's Order <br /> includes no evidence to support the conclusion that this amount reasonably reflects a reasonable <br /> projected cost to restore any lands. <br /> 90. Because many of the Board's factual findings are premised on clearly erroneous <br /> factual findings that cannot not be reconciled with evidence in the administrative record, the <br /> Court's conclusions based on those findings must be vacated and the Order set aside. <br /> COUNT III <br /> THE ORDER IS ARBITRARY AND CAPRICIOUS <br /> (Colo. Rev. Stat. § 24-4-106(7)(b)(I)) <br /> 91. RFES reasserts an incorporates by reference the preceding paragraphs 1 to 90. <br /> 92. Agency action undertaken without the application of standards and a sufficient <br /> - 12 - <br /> 4884-8560-1078.2 <br />