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Critically, the DRMS determination in July 2005 -that the JD Mine Complex (and the SM-18 Mine) are DMOs - is no longer seriously challenged by Cotter. Both the DRMS and Cotter concede that acid- or toxic-forming materials will be exposed or disturbed as a result of mining operations at the JD mines, including Aluminum, Lead, Selenium, and Arsenic at levels exceeding applicable ground or surface water standards. See July 22, 2005 SPLP results review. Thus, the only issue remaining is the lingering possibility of a Board exemption for these JD Mines under a novel and new interpretation of MLRA Section 1125 (C.R.S. § 34-32-112.5) put forth by Cotter and the DRMS in their SM-18 briefing. Cotter SM-18 Response Brief at 9, DRMS SM-18 Response at 1. Cotter is mistaken in its claim that Intervenors failed to recognize this provision. Id. This provision was recognized in all of Intervenors' previous briefing on the SM-18 and the JD-Mine Complex, but was not addressed in detail because until now, a Board exemption had not been raised with any seriousness by Cotter. Now, despite the DRMS' July 2005 DMO-determination, Cotter argues that the Board can grant an exemption in these proceedings. Id. However, Cotter fails to identify any applicable standards or information that allow the Board to grant a 112.5 exemption where the DRMS has already determined, based on the mine file and the data supplied by Cotter in these proceedings, that DMO status is required by the MLRA. Regardless of what legal standard Cotter must meet to obtain a Boazd exemption under 112.5, as set forth in Intervenors' opening brief, Cotter has provided no legitimate factual basis for the DRMS or this Board to provide an exemption for any of the JD Mines. Further, Cotter cannot now attempt to rescue its case by bringing last-minute "evidence" or data to meet its burden of proof necessary to obtain an exemption directly from the Board. C.R.S. § 34-32-112.5(2). (Cotter bears the burden of demonstrating applicability of a DMO exemption). The scheduling order -agreed upon by the parties and adopted by the Board -specifically prevents Cotter from introducing any "new factual data" into these proceedings after June 15, 2007. (emphasis in original). Last, the Board has the power to summarily deny Cotter's appeal and require the EPP and other compliance with the DMO provisions that should have been addressed by Cotter in the mid- 1990s when the MLRA was amended to include the DMO provisions. The Board may deny this appeal and hold the permit in abeyance until the DMO-provisions of the 1993 MLRA amendments aze satisfied. Conclusion The central assertions made in Intervenors' previous brief remain unrebutted and provide sufficient basis for the Board to summarily dismiss Cotter's appeal without further consideration and require compliance with the DMO provisions without further delay: Even assuming, arguendo, that a legal basis could exists for reversing the DMO status determination for JD-6, JD-8, and JD-9, Cotter's challenge to the Division's DMO determination must fail where it is based on three months of "factual data" collected from three lysimeters and one monitoring well. Cotter must carry a heavy burden in