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E - September 16, 20 10 Notice of Reason to Believe a Violation Exists at the Schwartzwalder <br />Mine.) The September 16, 2010 Notice set forth that, due to Cotter's failure to commence all <br />required corrective actions from the Final Order and to pay the ordered statutory penalty, the <br />Division was commencing a new enforcement proceeding against Cotter and that a hearing will <br />be held before the Board during its November 17-18, 2010 meeting cycle. (Exh. E, p. 1.) <br />FIRST CLAIM FOR RELIEF <br />(Judicial Review Pursuant to C.R.S. § 24-4-106) <br />(Against Board) <br />53. Cotter incorporates by reference all preceding paragraphs of this Complaint. <br />54. Cotter has been adversely affected and aggrieved by the actions of the Board, <br />including the adoption of the Final Order. <br />55. The Board abused its discretion when it ruled, contrary to the applicable law and <br />against the overwhelming weight of evidence, in issuing its Final Order. <br />56. The Board's findings of fact and conclusions of law in its Final Order, including, <br />but not limited to, its conclusions on whether water from the mine pool has been reaching <br />Ralston Creek, and the relative cost-benefit analysis between the ordered remediation efforts and <br />the status quo, were so unsupported by the record before the Board that its decision rose to the <br />level of being arbitrary and capricious, in excess of statutory jurisdiction, unsupported by <br />substantial evidence when the record is considered as a whole, abusive or clearly unwarranted <br />exercise of discretion, and based on findings of fact and conclusions of law that are clearly <br />erroneous on the whole record. <br />57. The Board also abused its discretion when it failed to rule on material questions, <br />such as whether the mine dewatering plan in Corrective Action No. 2 could be dealt with as a <br />"Technical Revision" under its regulations, that would have been necessary prerequisites to the <br />corrective actions ordered in the Board's Final Order. <br />58. Because it has abused its discretion in reaching its Final Order, the Board's Final <br />Order should be set aside. <br />SECOND CLAIM FOR RELIEF <br />(Judicial Review Pursuant to C.R.C.P. 106(a)(4)) <br />(Against Board) <br />59. Cotter incorporates by reference all preceding paragraphs of this Complaint. <br />60. The Board abused its discretion when it ruled, contrary to the applicable law and <br />against the overwhelming weight of evidence, in issuing its Final Order. <br />11