2010-09-10_ENFORCEMENT - M1977300

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the Board has already considered). The Board should reject Cotter's attempt since Cotter could have presented this evidence before or at the hearing but failed to do so. Cotter asserts that it heard for the first time at the hearing what the Division's response was to Cotter's assertions and therefore should be allowed to submit additional evidence. Such argument is without merit. Cotter has known all along that the Division's position was that Cotter must address the mine pool and Cotter has had ample time to prepare it case concerning the alleged violations. For a year prior to the hearing, the Division has requested an environmental protection plan from Cotter; the Division's request always included a requirement that Cotter address the mine pool. After the Division found Cotter's first proposed EPP inadequate in October of 2009, in part because Cotter failed to address the mine pool, Cotter submitted an amended proposed EPP in April 2010. The Division denied Cotter's amended proposed EPP based in part on Cotter's failure to address the mine pool. The Division's position has been consistent - Cotter must address the mine pool. Cotter's assertion that it was somehow blindsided by the Division's position at the hearing is without merit. Cotter has known since May 19, 2010 that the Division's specific position was that Cotter must draw down and treat the mine pool. Cotter did not raise at the hearing any of its present claims about being blindsided by the Division's evidence. Rather, Cotter raised these allegations for the first time three weeks after the hearing. The Board should reject Cotter's claims. Prior to the hearing, Cotter filed four pleadings in conjunction with the Board's July 12th hearing: a June 21, 2010, pleading (9 pages with one attachment); a June 25, 2010 pleading (commonly referred to as Cotter's Rationale) (15 pages with nine pages of attachments); a July 1, 2010 pleading (three pages with approximately 35 pages of attachments); and a July 9, 2010 pleading (15 pages). Cotter's July 9th pleading was filed on the last business day before the hearing. The Division filed a July I" pleading responding to Cotter's arguments; the Division felt it unnecessary to respond specifically to Cotter's June 25 "Rationale" since it failed to say anything new. In fact, Cotter's Rationale essentially states the same things Cotter said in. its proposed EPP submitted in April 2010. In the Division's response, the Division again stated its position that the mine pool must be drawn down and treated. At the hearing, Cotter had every opportunity to present its evidence including rebuttal evidence and argument it had to the Division's presentation and to the Division's rebuttal case. After the Division's rebuttal case, Cotter provided its rebuttal to the Division's rebuttal case and answered questions posed by the Board. Transcript at pp. 166-174. Yet, despite the Board Chair asking after the Division's and Cotter's rebuttal cases whether the parties had any other evidence or statements 4