2011-02-09_ENFORCEMENT - M1977300

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system by monitoring, AR:01016:6-01017:17, which is not mentioned in the Order and the record does not contain cost information about it or any reasonableness evaluation. Finally, the Board erred by lacking basic information required for any reasonableness evaluation. At the Hearing, in considering the idea of reversing the hydraulic gradient from Ralston Creek alone, instead of from both Ralston Creek and Ralston Reservoir, one Board member asked the Division whether it would be possible to dewater the mine to a level that would be less than 500 feet below the Steve level. AR:00899:12-00900:7. However, the Division did not know why it picked 500 feet below the Steve Level for the depth of dewatering - other than because it "would certainly assure a very steep gradient." AR:00900:8-17. The Board found without substantial evidence that "[d]ewatering the mine pool to the level below Ralston Reservoir will ensure that the hydraulic gradient is again reversed away from Ralston Creek and Reservoir - by creating a cone of depression," implicitly adopting the Division's demand for certainty. Order ¶ 33, AR:00850 (emphasis added). Requiring certainty is inconsistent with evaluating reasonableness.9 Nothing in the record supports the reasonableness of dewatering to 500 feet below the Steve Level. The record does not contain substantial evidence of the reasonableness of Corrective Action No. 2 without which the Board could not make the required reasonableness evaluation, resulting in the Order's being contrary to law and arbitrary and capricious. 9 Moreover, the Board failed to recognize that the proponent of an order (in this case the Division) had the burden of proof by accepting the Division's argument that "there must be certainty in the corrective actions imposed to address the violations," and "[d]ewatering the mine pool provides that certainty." AR:00333; Colo. Rev. Stat. § 24-4-105(7); see AR:00402. 25