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September Notice Response that the Division's decision to file a new notice of reason to believe <br />predicated on Cotter's alleged lack of compliance with the August 2010 Order was improper <br />because the Board lacked the authority to impose civil penalties solely on the basis of alleged <br />violations of an earlier order. AR:0060. <br />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. AR:0090 -0100. On November 15, 2010, Cotter filed a <br />reply in support of its September Notice Response ( "September Notice Reply "). AR:0104 -23. <br />In its September Notice Reply, Cotter explained why compliance with Corrective Action No. 2 <br />in the August 2010 Order would have been impossible within the time limits contemplated by <br />that order. AR:0105. Cotter also set forth at greater length both the constitutional problems <br />presented by the Board's assessing civil penalties based on the alleged violation of an order that <br />was already subject to a pending appeal and the Board's lack of authority to assess civil penalties <br />for violations of its own prior orders. AR:0105 -07. <br />At the Hearing, the Board, upon motion of the Division, excluded all testimony and <br />exhibits Cotter intended to present in its defense on the impossibility of complying with the <br />August 31, 2010 deadline for dewatering the Mine pursuant to Corrective Action No. 2 in the <br />August 2010 Order, and also barred Cotter's attorney from making an offer of proof for the <br />record on this evidence. AR:0265:3 -4; AR:0269:23 -25; AR:0270:6 -9, 11 -13. Cotter was <br />order. <br />4 The last seven pages of the reply in the administrative record, AR:0117 -0123, are out of <br />5 <br />