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B. The Board Should Adopt the Division's Factual Findings and Reinstate the July 25, 2005 Determination that the SM-18 is a DMO The DRMS's July 25, 2005 Notice of Determination clearly and correctly states that SM-18 Mine meets the criteria for a DMO. The July 25, 2005 DRMS determination was based on Synthetic Precipitate Leachate Procedure ("SPLP") tests on waste rock and ore samples from the SM-18 Mine. The July 25, 2005 DMO Determination was also based on numerous DRMS inspections of operational conditions conducted in early 2005 that analyzed surface conditions, restart conditions, and actual mining operations. The SPLP tests and site investigations confirmed the presence, exposure, and disturbance of toxic and acid forming materials at the SM-18 mine that could adversely effect human health, property or the environment. At that point, the DMO standard was satisfied. C.R.S. § 34-32-103(3.5)(a)(II), C.R.S. § 34-32-112.5(2). The SPLP test further confirmed that not only were the DMO standards satisfied, these materials exceed applicable water quality permitting pazameters. In particular, the SPLP tests demonstrated the SM-18 Mine has a potential to release Aluminum, Lead, Selenium, Uranium, and Zinc in excess of water quality permitting standards. The fact that the quantities of these "toxic or acidic materials" threaten to exceed water quality permitting standards further confirms that SM-18 is a DMO pursuant to C.R.S. § 34-32-103(3.5)(a)(II) that requires preparation, inter alia, of an EPP. The subsequent October 5, 2005 DRMS inspection revealed full production, 50 tons of ore stockpiled adjacent to a county road, and trucks hauling materials to the dump. An inspection report in the mine file, issued after the DRMS's reversal of its DMO finding and dated Apri15, 2006, indicates that active mining has "halted again for the near future." The MLRA and the HRMM rules are consistent with the initial and correct DRMS finding based on the well-established principle that the determination of exempt status is only for mines showing no potential to adversely affect human health, property, or the environment (including groundwater). The existing presence and anticipated increase in acid forming and toxic materials upon restart of active mining activities at the SM-18 Mine has not been disputed. The DRMS's March 2006, reversal of it initial July 25, 2005 DMO determination contrary to law and is contradicted by the file itself. The March 2006, reversal does not address the relevant legal standards nor the fu]] range of facts upon which the original DMO finding was made on July 25, 2005. On this basis alone, Appellants request to reinstate the July, 2005 DMO finding should prevail. Here, there is no dispute that toxic and acid-forming materials have been and will be exposed and disturbed at the SM-18 uranium mine as a result of past mining, current conditions, and planned mining operations. The July 25, 2005 Notice of Determination clearly and unambiguously states that the mines meet the criteria for a DMO: "Mining will expose or disturb acid or toxic forming materials from the SM-18 ore and waste rock." 13