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Division advised the Board that "the only issue before the Board is whether Cotter has failed to <br />comply with the August 11th Board Order." AR:0124. In its presentation to the Board at the <br />Hearing, the Division claimed a violation had occurred based solely on Cotter's refusal "to <br />comply with all of the conditions of the Board Order issued August 11, 2010," and Cotter's <br />"[refusal] to pay any of the Civil Penalty that was ordered in the Board Order of August 11, <br />2010." AR:0134. The Division's counsel reiterated, "[t]here's one question in this [Hearing], <br />whether Cotter has complied with the board order." AR:0221:21 -22. Based on the Division's <br />own September 2010 Notice and Hearing presentation, it would be disingenuous for the Division <br />or Board to contend the violation alleged was anything other than a failure to comply with the <br />August 2010 Order. <br />b. The record contains no evidence Cotter violated its permit. <br />There is absolutely no evidence in the record that Cotter violated any provision of its <br />permit. This failure of evidence is demonstrated conclusively by a single, irrefutable point: the <br />permit was never offered into evidence and was never reviewed by the Board. The Division, in a <br />last- second effort to cure this deficiency, argued to the Board at the Hearing that the August 10, <br />2010 Order had somehow become part of Cotter's pre- existing permit: <br />AR:0277:11 -20. <br />MR. PAULIN: Does the order also become part of the permit? <br />MS. LINDEN: The order specifies that Cotter was to submit <br />modifications to its permit, which then become part of the permit. <br />MR. PAULIN: So if I went downstairs to look at this permit, that <br />order would be a part of it? <br />MS. LINDEN: It's part of the permit file, yes. <br />13 <br />