2011-02-09_ENFORCEMENT - M1977300

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discussion of possibilities and potentialities simply does not provide the substantial evidence required to support the Board's positions. Likewise, the Board's reliance on generalities in the face of contrary site-specific data does not provide the substantial evidence it needs to survive appeal. One example is the Board's effort to discount the underground packer tests that Cotter conducted at the Mine. Those tests establish that the mine pool is contained and is isolated by a low permeability rock mass. AR:00272; 00515-16; 00944:10-24. Rather than acknowledge the compelling force of that data, the Board cites to the Division's general, non-site specific statement that fractured rock "can have" a hydraulic conductivity 100,000 times greater than the packer test results. Order ¶ 25, AR:00849. A second example involves the site-specific data, discussed above, showing no evidence of chemical loading from the mine pool to Ralston Creek via the Schwartz Trend. Without contrary evidence, the Board dismisses such data, contending generally that "future contribution is inevitable because of the direction of the hydraulic gradient." Order ¶ 27, AR:00849. The Board's reliance on such overbroad, conclusory statements does not constitute substantial evidence when the record is considered as a whole. Based on the above, the Board's findings that the mine pool has "contributed uranium to Ralston Creek" and has increased the levels of uranium and other metals in Ralston Creek and Ralston Reservoir are unsupported by substantial evidence and do not support a finding that Cotter violated Colo. Rev. Stat. § 34-32-116(7)(g). The Board also failed to support its third finding that a mine pool uranium concentration of 35.4 mg/L is "a serious adverse impact to the prevailing hydrologic balance (background concentrations 0.0019 mg/L; MW-11, October 2009)." Order ¶ 40, AR:00851-52. MW-11 is 29