2011-02-09_ENFORCEMENT - M1977300

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III. The Findings Upon Which the Board Relied to Order Mine Dewatering and Treatment Are Unsupported by Substantial Evidence; Accordinely the Board Unlawfully Ordered Corrective Action No. 2. The Board's Corrective Action No. 2 - Mine Dewatering and Treatment - is based on findings that Cotter violated three sections of the Act, Colo. Rev. Stat. §§ 34-32-116(7)(c) -116(7)(g), and -116(7)(h). AR:00853. As shown below, the Board did not establish that the mine pool supports a violation of any one those sections. Without such evidence, the Board lacked statutory authority to order Mine Dewatering and Treatment. Moreover, the Board was legally obligated to address the material issues, discussed below, but instead ignored them. Colo. Rev. Stat. § 24-4-105(14)(a); 2 Colo. Code Regs. § 407-1, Rule 2.8.2(3). The Order requiring Mine Dewatering and Treatment is therefore arbitrary, capricious, an abuse of discretion, in excess of statutory authority, and unsupported by substantial evidence. A. No Substantial Evidence Exists That the Mine Pool Supports a Violation of Colo. Rev. Stat. § 34-32-116(7)(91. The Board found that Cotter violated Colo. Rev. Stat. § 34-32-116(7)(g), which provides "[d]isturbances to the prevailing hydrologic balance of the affected land and the surrounding area and to the quality and quantity of water in surface and groundwater systems both during and after the mining operation and during reclamation shall be minimized."10 Order ¶ 40, AR:00851-52. To support its conclusion that Cotter violated subsection 116(7)(g), the Board relied on three findings pertaining to the mine pool: (1) "the contaminated mine pool water has contributed uranium to Ralston Creek;" (2) mine pool water "increased the levels of uranium and other 10 The term "prevailing hydrologic balance" is not defined in the Act or its implementing regulations. See Colo. Rev. Stat. § 34-32-103; 2 Colo. Code Regs. § 407-1, Rule 1.1. Nor has the Board defined that term. 26