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action that is arbitrary, capricious, or unsupported by substantial evidence when the record is <br />considered as a whole). <br />Third, the Board may not rely on the mine pool to support a violation of section 34-32- <br />1 i 6(7)(c) because the record does not show that Cotter has mishandled any acid forming or <br />toxic-producing material. The record is bereft of evidence that Cotter did anything improper in <br />its creation of the mine pool or that it failed to do something that a prudent operator should have <br />done. Indeed, as shown above, Cotter merely implemented the remedial plan that the Division <br />authorized and incorporated into Cotter's reclamation permit. Under these circumstances, the <br />Board should reconsider the portion of the Order finding that the mine pool provides a basis for a <br />violation of Colo. Rev. Stat. § 34-32-116(7)(c). <br />(C) No Violation of Colo. Rev. Stat. § 34-32-116(7)(h). <br />The Board should reconsider the portion of the Order finding that the mine pool supports <br />a violation of Colo. Rev. Stat. § 34-32-116(7)(h), which provides "[a]reas outside of the affected <br />land shall be protected from slides or damage occurring during the mining operation and <br />reclamation." See Order ¶¶ 44-45. To support this finding, the Board first determined that the <br />area which had been adversely affected is Ralston Creek. Order ¶ 45. The Board then <br />determined that Cotter had failed to protect Ralston Creek because "[t]he contaminated alluvial <br />fill and mine pool water significantly increased the uranium levels in Ralston Creek." Id. As <br />explained in section L(A) above, the record does not support a finding that mine pool water has <br />increased uranium levels in Ralston Creek to any degree, and certainly not "significantly." The <br />Division, itself, conceded this precise point at the hearing asserting the mine pool has not made <br />"a contribution anywhere." Tr. of Hearing at 42:3-6. Under these circumstances, a violation of <br />§ 34-32-116(7)(h) based on a finding that the mine pool water has "significantly increased <br />uranium levels in Ralston Creek" should be reconsidered and reversed. <br />8