2011-05-26_ENFORCEMENT - M1977300

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and hypothesized that the mine pool "could" contribute at most 8% of the alluvial flow. Answer Brief at 27, 40 -41. These statements about possibilities and hypothetical routes of contamination for purposes of site remediation are not evidence that the mine pool did leak into Ralston Creek, as Cotter's consulting hydrologist explained at the Hearing. See AR:00954:22 -25 ( "We're not saying that water is flowing from the mine pool to the creek, but if it did, it would move through the alluvium and fill and be captured in the treatment system. "). Likewise, no testimony was offered by Denver Water and Arvada Water at the Hearing that mine pool water had exited the mine and entered Ralston Creek. AR:01020 -26. Based on the above, the evidence presented by the Division, Cotter, Denver Water, and Arvada Water does not conflict on the question of whether mine pool water had exited the mine and entered Ralston Creek. No evidence was presented that such discharge had occurred, or was occurring, at the time of the Hearing. The Board was therefore not choosing between conflicting views on that question, as the Division's key witness, Mr. Bird, testified at the Hearing: "Ms. Green: Okay. We don't have any disagreement between the two of you — collective two of you that there is no evidence now of contamination from the mine pool to the creek, right? Mr. Bird: I would say I don't believe there is any direct evidence that there is contamination from the mine pool to the creek." AR:01015:18 -25. Yet, the Board found that "the mine pool is contributing to the contamination of Ralston Creek and Ralston Reservoir," Answer Brief at 41 (emphasis added), and relied on such finding to conclude that Cotter is violating Colo. Rev. Stat. § 34- 32- 116(7)(g); see also Answer Brief at 33 ( "The board ... concluded the mine pool was contributing uranium to Ralston Creek. "). The Board's conclusions on mine pool leakage are therefore an unsupported leap from the testimony 22