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applicable to the Defendants and a material issue in this litigation. See Answer Brief at 50 and <br />61 (citing Colorado Office of Consumer Counsel v. PUC, 786 P.2d 1086, 1096 (Colo. 1990) (the <br />decisions of the Commission were "a relatively small part of this extremely complicated and <br />difficult case. ")). <br />Arbitrary and capricious exercise of discretion can arise when an administrative board <br />neglects or refuses to use reasonable diligence and care to procure such evidence as it is by law <br />authorized to consider in exercising the discretion vested in it. Lawley v. Department of Higher <br />Educ., 36 P.3d 1239, 1252 (Colo. 2001). An agency decision can be arbitrary and capricious if it <br />fails to reflect a conscientious effort to reasonably apply legislative standards to particular <br />administrative proceedings. See Moya, 870 P.2d at 624. Neither the Division nor the Board used <br />any conscientious effort or diligence in producing information regarding economic <br />reasonableness. The record contains no evidence that the Division ever requested any <br />information from Cotter regarding costs, even though the statute requires that it consider <br />economic reasonableness. See Colo. Rev. Stat. § 34- 32- 102(2). The record also contains no <br />evidence that the Board ever asked Cotter for the costs of Corrective Action No. 2. After the <br />Division witness presented his rebuttal, one Board member did ask the Division witness of "any <br />estimates on the costs to dewater the mine pool." AR:01018:23- 01019:4. After the Division <br />provided a vague and abbreviated response which provided no estimates for installation of water <br />treatment facilities, safe access to the mine, drilling costs, or pumps and piping for dewatering, <br />the Board sought no further information. AR:01019:5 -13. <br />Further, pointing to one statement by a Division witness referring to a portion of costs by <br />an unidentified Cotter employee does not meet the substantial evidence standard. Substantial <br />evidence requires that there be more than merely 'some evidence in some particulars' to support <br />8 <br />