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_ ,~ > <br />A recent inspection report, issued after the non-DMO finding and dated April 5, 2006 indicates <br />that active mining has "halted again for the near future." This recent inspection reflects an <br />inactive state and is most relevant to requirements regarding cessation and reclamation in the <br />event that the DOE should decide, based on ongoing federal analysis, that the federal lease for <br />SM-18 will not reissue. Even in inactive status, erosion is taking place and "erosion control <br />measures and fuel tank security are noted as issues of concern for future monitoring." <br />The DOE is currently conducting an Environmental Assessment to determine whether or not to <br />continue its uranium leasing program in Western Colorado, including the SM-18 lease tract. <br />DMG has participated in the DOE analysis, although no documentation of the DMG comments <br />or other participation is reflected in the mine file. <br />In sum, SM-18 is an old uranium mine which has operated sporadically for several decades, has <br />been restarted and operated for a short time in 2005, and has significant problems that are <br />identified in public records. As of Apri15, 2006, mining operations at the mine have again <br />ceased. The federal owner is currently considering whether or not to reissue the lease and is <br />considering the pennanent cessation of the leasing program that includes this mine. <br />DMO Status <br />The Mined Land Reclamation Act ("MLRA") unambiguously defines a DMO very broadly. <br />"Designated mining operation" means a mining operation at which: <br />(I) Toxic or acidic chemicals used in extractive metallurgical processing are <br />present on-site; or <br />(II) Acid- or toxic-forming materials will be exposed or disturbed as a result of <br />mining operations. <br />C.R.S. § 34-32-103(3.5)(a). Thus, the DMO threshold is the mere exposure of disturbance of <br />any "acid or toxic-forming materials." Therefore, the DMO inquiry is complete once the DMG <br />finds exposed or disturbed toxic or acid forming materials. Although an applicant may challenge <br />the DMG's determination, this finding has not changed nor been challenged in this matter. <br />Should an operator want to avoid DMO status where there is no dispute that toxic or acid- <br />forming materials are exposed or disturbed, the proper procedure to avoid DMO status where <br />toxic or acid-forming materials are present on site is for the operator to submit an application to <br />the MLRB for an exemption and request a hearing in front of the Board. C.R.S. § 34-32- <br />112.5(2). <br />No such application for a Section 112.5(2) exemption appears to have been filed here. However, <br />the standard for obtaining exempt status is informative. First, a DMO exists where "acid- or <br />toxic-forming materials will be exposed or disturbed." C.R.S. § 34-32-103(3.5)(a). Next, and as <br />a prerequisite to obtaining DMO exempt status, an application for a DMO exemption must be <br />submitted and heard by the Board. C.R.S. § 34-32-112.5(2). In order to obtain the exemption <br />the applicant for the exemption must demonstrate that the DMO does not use, store, or disturb <br />