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51. On September 16, 2010, the Division sent Cotter a new Notice of Reason to <br />Lelicvc a Violation Exists at the Schwartzwalder 1\41ne ("September 2010 Notice"). The <br />September 2010 Notice set forth that, due to Cotter's failure to commence all required corrective <br />actions from the August 2010 Order and to pay the ordered statutory penalty, the Division was <br />commencing a new enforcement proceeding against Cotter and that a hearing would be held <br />before the Board during its November 17-18, 2010 meeting at which Cotter would be entitled to <br />present evidence. <br />52. On September 24, 2010, Cotter filed a Complaint for Judicial Review, <br />Declaratory and Injunctive Relief in the Denver District Court concerning the August 2010 <br />Order against the same Defendants as in this case. That judicial review process, Cotter Corp. v. <br />Mined Land Reclamation Bd., et al., Case No. 2010CV7609, is still pending in the Denver <br />District Court. Cotter may seek to consolidate the instant case with that proceeding in light of <br />the December 2010 Order in this case relying on the validity of the August 2010 Order. <br />53. On October 4, 2010, Cotter submitted a request for Technical Revision 15 <br />("TR-15") seeking authorization to install additional ground water capture systems and pumping <br />locations within the alluvial fill in order to expand the alluvial ground water capture and <br />treatment capabilities at the Mine as rapidly as possible. The Division approved TR-15 on <br />October 7, 2010. <br />54. On October 15, 2010, Cotter filed a response to the September 2010 Notice <br />("September Notice Response"). Cotter stated in its September Notice Response that it was <br />improper for the Division to file a new notice of reason to believe concerning the August 2010 <br />Order while the August 2010 Order was being appealed. Cotter also set forth in the September <br />Notice Response that the Division's decision to file a new notice of reason to believe predicated <br />solely on Cotter's alleged lack of compliance with the August 2010 Order was improper because <br />the Board lacked the authority to impose civil penalties solely on the basis of alleged violations <br />of an earlier order. <br />55. On October 28, 2010, the Division filed a response to Cotter's September Notice <br />Response, disagreeing with Cotter's argument concerning the Board's power to assess civil <br />penalties for violations of its own order. <br />56. On November 15, 2010, Cotter filed a reply in support of its earlier response to <br />the September 2010 Notice ("September Notice Reply"). In its September Notice Reply, Cotter <br />explained why compliance with Corrective Action No. 2 in the August 2010 Order would have <br />been impossible within the time limits contemplated by that order. Cotter also set forth at greater <br />length both the constitutional problems presented by the Division and Board's actions in <br />assessing civil penalties based on the alleged violation of an order that was already subject to a <br />pending appeal and the Board's lack of authority to assess civil penalties for violations of its own <br />prior orders. <br />57. At the hearing, the Board, upon motion of the Division, excluded all testimony <br />and exhibits Cotter intended to present in its defense on the impossibility of complying with the <br />10