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2. Should the Board consider Cotter's Reply, the Division responds as follows to <br />certain statement Cotter makes in its Reply. <br />3. Cotter asserts in its Reply that the August 31, 2010 compliance deadline for the <br />mine dewatering corrective action gave Cotter 20 days to implement the action and <br />that such time was not sufficient. Reply at p. 2. First, any assertion by Cotter that the <br />compliance deadline was insufficient has been waived by Cotter. Cotter has never <br />raised the sufficiency of the deadline until now. Cotter had ample opportunity to raise <br />such an allegation prior to or at the July 12, 2010 Board hearing, in its Petition for <br />Reconsideration or prior to or at the Board's September meeting when the Board <br />voted to deny Cotter's Petition for Reconsideration; Cotter failed to do so. Therefore, <br />Cotter has waived any objection to the compliance deadline. <br />Second, Cotter never states why it could not comply with the mine dewatering <br />corrective action in the months since August 31 ". The Board ruled at its July 12`h <br />hearing to require Cotter to implement the mine dewatering. Cotter to date has failed <br />to take any steps to implement this corrective action, to submit the required financial <br />warranty for such action or to pay the imposed civil penalties. <br />4. As it did in its Answer, Cotter again summarizes actions it has taken or intends to <br />take at its mine site. However, none of the actions Cotter has taken or will take <br />include compliance with the Board's August 11th Order regarding the mine <br />dewatering and civil penalties. As it did in its Answer (See e.g, Answer, p. 4; Exhibit <br />A to Answer, p. l; Exhibit B to Answer, p. 2.), Cotter again concedes in its Reply that <br />despite its actions, Cotter continues to violate stream standards. Reply at page l; <br />Exhibit B to Cotter's Reply at page 1. The simple fact is that Cotter has not complied <br />with the Board's Order regarding the mine dewatering and civil penalties, and is, <br />accordingly, in violation of the Mined Land Reclamation Act and regulations. <br />5. Cotter argues that it is somehow unfair to proceed with the enforcement hearing <br />because it has filed a judicial review of the Board's August I I1h Order. Cotter's <br />argument is without merit. The Colorado Legislature made it clear in the <br />Administrative Procedure Act that unless an order is stayed, the agency's action <br />remains in effect. § 24-4-106(5), C.R.S. Accordingly, here, the Board's Order is in <br />effect and Cotter must comply with it. Since it has failed to do so, Cotter is in <br />violation of § 34-32-124 and 2 CCR 407-1, Rule 3.3.2. <br />6. In its Reply, Cotter also asserts that its actions have improved water quality and <br />that it has removed 302 pounds of uranium from ground water. Reply at page 1; <br />Exhibit B, page 1. Yet Cotter concedes it continues to fail to meet water quality <br />standards. Reply at page 1; Exhibit B to Cotter's Reply at page 1. The Division will <br />not comment on Cotter's assertions since future enforcement actions are possible. <br />For the reasons and authorities cited in the Division's October 28`h Response and <br />herein and in the Division's presentation to the Board, the Division requests (1) that