2011-02-09_ENFORCEMENT - M1977300

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completed above the Mine, not in the ore zone, and is therefore not representative of uranium concentrations in the ore zone. AR:00126. Test results from MW-11 do not, therefore, reflect the prevailing hydrologic balance in the Mine. Id. Further, no "serious adverse impact" to the "prevailing hydrological balance" in the mine pool has occurred because uranium concentrations in the mine pool have for years exceeded background. AR:00265-66. The Division approved the creation of the mine pool by approving the bulkheading of the Steve Level adits, and therefore approved the inevitable increase in metals concentrations (including uranium) within the mine pool. AR:00259; 00540; 00945:4-5; 00977:2-6; 01011:17-20. As the Mine initially filled, uranium concentrations in the mine pool peaked at 60.2 mg/L. AR:00265-66. The uranium concentrations in the mine pool have been declining over the past seven years, AR:00265-66; 00956:21-00957:1, and the Division does not dispute this fact. Order ¶ 20, AR:00848 ("The Division does not agree that it is certain that the reducing trend will continue." (emphasis added)). A uranium concentration of 35.4 mg/L is well below the mine pool's peak uranium concentration and is continuing to decline. See AR:00265-66. Accordingly, it is not a "serious adverse impact" to the "prevailing hydrologic balance." The Order is also contrary to law in applying an incorrect legal standard. The Order states that Cotter violated section 34-32-116(7)(8) "for failing to protect the prevailing hydrologic balance." Order ¶ 40, AR:00852. Cotter had no such obligation under section 34-32-116(7)(g), which provides "Disturbances to the prevailing hydrologic balance ... shall be minimized." "Failing to protect" is a higher standard than "minimizing." Since the Board applied an erroneous legal standard, its conclusion that Cotter violated subsection 116(7)(g) should be set aside. See Citizens for Clean Air & Water v. CDPHE, 181 P.3d 393, 396 30