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Creek. If it were inevitable, flooding would never have been approved by the Division at the <br />Schwartzwalder Mine. <br />3. The Act Does Not Give Authority to the Defendants to Require <br />Corrective Action No. 2. <br />The record as a whole fails to support that there is any threat from the mine pool, let <br />alone one that would need to be addressed by the extreme measure of Mine Dewatering and <br />Treatment. For example, the Order Findings of Fact 11 indicates that the Division was equivocal <br />about whether the mine pool is contributing to concentrations of uranium in Ralston Creek <br />exceeding stream standards. See AR:00847, Opening Brief at 10 n.5 (quoting statements by the <br />Division regarding the possibility (not threat) of mine pool migration). <br />Contrary to the Defendants' argument, Cotter never "admitted that if the mine pool was <br />not now discharging, the Division had authority to act in a preventive manner if there was a <br />threat of such contamination." Answer Brief at 32. During Cotter lawyer's opening statement, a <br />Board member, Mr. Mike King, asked Cotter's lawyer a question and the following exchange <br />took place: <br />MR. KING: I get that. I'm just trying to get the legal standard that you think <br />applies. Does the division have the authority to act in a preventive manner, or do <br />they have to wait until contamination occurs? <br />MS. NEITZEL: I think that there is -- I would have to look at. So I would <br />reserve judgment. If there was some immediate threat, I assume so, but we don't <br />believe that there is any immediate threat or any threat from the mine pool. <br />MR. KING: Okay. <br />AR:00916:19- 00917:4. This exchange during an opening statement hardly constitutes an <br />admission by Cotter. <br />16 <br />