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explanation of reasoning is arbitrary and capricious. <br /> 93. The Board concluded that, although RFES' Facility was not operating at the time <br /> of DRMS' inspection,there was evidence to suggest that the Facility had been running. The Board <br /> did not, however, reach any factual findings concerning the processes that RFES was <br /> implementing at the Facility. <br /> 94. The Board reached several unexplained conclusions about the Facility's setup and <br /> conditions. The Board found that mining tailings stored at RFES' Facility were placed on the <br /> ground without any secondary containment. But the Board's Order does not identify the standards <br /> or regulations the Board was applying to evaluate the adequacy of containment at any individual <br /> site on the Facility property. The Board likewise observed that a concrete berm along the south <br /> side of the cement pad on which RFES' tanks were located did not fully enclose the tanks. But the <br /> Board did not offer any conclusion concerning whether there was adequate containment around <br /> the tanks. The Order provides no explanation why the Board doubts the adequacy of any <br /> containment provision when other agencies whose responsibility involves evaluation of <br /> containment adequacy have not expressed concern with RFES' Facility setup. <br /> 95. While the Board characterizes RFES' Facility as a "mill," the Board does not <br /> provide any discussion concerning the types of milling activities occurring at the site. To the <br /> contrary,evidence in the administrative record establishes that the Facility was not in operation at <br /> the time of DRMS' inspection and that DRMS could not confirm how much of the equipment and <br /> substances observed at the Facility were used, if at all. <br /> 96. The Board issued a cease-and-desist order of all operations conducted at the Facility <br /> despite not reaching any factual finding concerning the processes for which the equipment and <br /> substances DRMS observed on the property were used or identifying any statutory or regulatory <br /> prohibitions that possession of the observed equipment and substances violated. <br /> 97. The Board's cease-and-desist order does not distinguish between RFES' operations <br /> to process mining waste and any other commercial activity that RFES conducts on the site. <br /> 98. 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 Order does <br /> not include any discussion of how the Board calculated this amount. The Board has not identified <br /> any lands the Board believes might need to be reclaimed. Because the Board does not know what <br /> activities are being conducted and the substances that are in use at the Facility, any conclusion the <br /> Board reached considering the types of reclamation efforts that might be necessary to reclaim any <br /> lands the Board might identify is necessarily uninformed. Because the Board cannot know the <br /> scope and nature of any reclamation that might be necessary based on the current administrative <br /> record, any attempt to estimate a cost for that reclamation is speculative. <br /> 99. The MLRA identifies minimum and maximum daily penalties for unpermitted <br /> operations "for each day the land has been affected." The MLRA does not, however, assign a <br /> specific penalty for any violation, leaving the penalty amounts to the Board's discretion. <br /> 100. The Board imposed a maximum civil penalty of$12,000 on RFES. The Board's <br /> - 13 - <br /> 4884-8560-1078.2 <br />