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III. Even If This Board Has the Authority to Order Mine Dewatering and Treatment of <br />Mine Pool Water, No Such Corrective Action Should Be Ordered for the <br />Schwartzwalder Mine. <br />(A) The Record as a Whole Does Not Support Mine Dewatering and Mine Pool <br />Treatment. <br />The portions of the Order requiring mine dewatering and mine pool treatment are based <br />on findings of fact that are clearly erroneous and are unsupported by substantial evidence. See <br />Colo. Rev. Stat. § 24-4-106(7) (agency actions are unlawful if based upon findings of fact that <br />are clearly erroneous on the whole record, or unsupported by substantial evidence when the <br />record is considered as a whole). Paragraph 33 of the Order provides several examples: "[t]he <br />Operator is responsible for the increased uranium in Ralston Creek through the ... mine pool," <br />"[t]he mine pool is contributing to the contamination of Ralston Creek and Reservoir," and "[t]he <br />mine pool is affecting the hydrologic balance of the affected land and surrounding area." Aside <br />from Cotter's testimony, the testimony and exhibits of the Division do not support these <br />statements. This evidence is summarized in section L(A), above. <br />Paragraphs 22 and 26 of the Order rely on statements in the Schwartzwalder Mine <br />Environmental Protection Plan, dated April 19, 2010 ("EPP"), but these staterrients are taken out <br />of context. The EPP was clear in stating that, if any minor seepage is occurring, it is occurring to <br />the alluvium. For example, the EPP states on page 8-40 that "[d]rill holes, near-surface <br />fractures, or rock foliation could provide potential conduits for low rates of flow from the mine <br />to the valley floor alluvium." (Emphasis added.) Susan Wyman's testimony at the hearing on <br />behalf of Cotter and her Rationale clearly stated that the treatment system that has already been <br />installed would address any potential conduits. See Tr. of Hearing at 94:22-25 ("We're not <br />saying that water is flowing from the mine pool to the creek, but if it did, it would move through <br />the alluvium and fill and be captured in the treatment system."); Rationale at 2 ("[m]ixing <br />10