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'~ " ~~ <br />defines "acid or toxic producing materials" as "natural or reworked earth materials having acid <br />or toxic chemical and physical characteristics." C.R.S. § 34-32-103(1). <br />In this way, the DMG takes the position that only where "acid or toxic producing materials" are <br />present in such quantities that will violate surface or groundwater standards is a DMO status <br />warranted. This is inconsistent with the statute, regulations, and the MLRB's own statements in <br />the Statement of Basis Specific Statutory Authority and Purpose for the regulations adopted to <br />implement Senate Bi1193-247 where the legislature created DMO status. For instance, the <br />Statement recognizes that DMO status is proper where an "operation has the potential to create <br />or aggravate acidic or toxic drainages from naturally occurring geologic materials mined or <br />disturbed in their operation...because there are contaminant mobility pathways available (such as <br />ground or surface waters) that could lead to adverse impacts to human health, property or the <br />environment." Statement at 31 (referencing HRMM Rule 7)(emphasis added). Again, the test <br />for a DMO is only whether the operation has exposed or disturbed toxic materials that could <br />adversely affect human health, property, or the environment. The DMO determination is a much <br />broader and lower threshold than the narrow and elevated standard used in the March 6 review <br />and Mazch 9 non-DMO determination that was based on whether proof exists that the ground or <br />surface water quality standards will be violated. <br />Appellants, aggrieved by the lack of full regulation of these uranium mines under the DMO <br />program seek to reinstate the original and correct DMO finding. The file contains nothing to <br />suggest that toxic-forming materials are no longer present from the waste rock and ore that is , <br />being deposited at the surface of the uranium mining operation, or that these materials will not <br />adversely affect the environment, regardless of whether surface or groundwater quality standazds <br />are violated. <br />The MLRA and the HRMM rules are consistent with the inifial and correct DMG finding based <br />on the well-established principle that the determination of exempt status is only for mines <br />showing no potential to adversely affect human health, property, or the environment (including <br />groundwater). The existing presence and anticipated increase in acid forming and toxic materials <br />upon restart of active mining activities at the SM-18 Mine has not been disputed. The DMG's <br />consideration and finding of non-DMO is contrary to law and is contradicted by the file itself. <br />The March, 2006 reversal does not address the relevant legal standard or the facts upon which <br />the original DMO finding was made on July 25, 2005. On this basis alone, Appellants request to <br />reinstate the July, 2005 DMO finding should prevail. <br />Here, there is no dispute that toxic-forming materials have been and will be exposed and <br />disturbed at the SM-18 uranium mine as a result of past mining, current conditions, and planned <br />mining operations. The July 25, 2005 Notice of Determination clearly and unabiguously states <br />that the mines meet the criteria for a DMO: "Mining will expose or disturb acid or toxic forming <br />materials from the SM-18 ore and waste rock." <br />The March, 2006 reversal does not contravene or even question the sound basis of the original <br />finding -that the ore on site contains toxic-forming materials. Instead, the new finding was <br />based on groundwater modeling. However, these models seek only to show that surface <br />contaminants will not reach surface water bodies or groundwater in quantities sufficient to <br />