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mine pool and a violation of Colo. Rev. Stat. § 34- 32- 116(7)(c). To support its conclusion that <br />Cotter violated section 34- 32- 116(7)(c), the Board relies on a finding that "As the mine pool <br />attains hydrostatic equilibrium, it poses a serious threat to downgradient water resources." Order <br />IT 43, AR:00852. This "serious threat" is undocumented in Defendants' Answer Brief and the <br />record. <br />In their brief, the Defendants fail to identify the data, modeling, and scientific analysis <br />that support the alleged threat. See Answer Brief at 37 -44. This critical omission is consistent <br />with the statement of the Board's chairwoman, after testimony closed, that "we don't have data <br />that specifically says there is a problem ...." See AR:01034:23 -24. As Cotter explained in its <br />Opening Brief, the lack of data does not substantiate that the mine pool poses a "serious threat." <br />Opening Brief at 31. <br />The alleged "serious threat" is not supported by the Defendants' repeated claim in their <br />Answer Brief that "expecting water in the mine pool to migrate in the direction of the hydraulic <br />gradient toward Ralston Creek is an application of basic ground water hydrology and scientific <br />common sense." Answer Brief at 18, 43, 47. As explained previously, this claim fails to <br />acknowledge that the mine pool was created with the express approval of the Division. See <br />Section II.D.2 of this Reply, above, regarding bulkheading and the reclamation plan. If such <br />"basic" groundwater hydrology and "scientific common sense" dictated that the mine pool would <br />9 In their brief, Defendants misstate the obligations arising from Colo. Rev. Stat. <br />§ 34- 32- 116(7)(c), by asserting "each operator must handle acid and toxic forming material so as <br />to ensure the protection of surface and ground water." Answer Brief at 10 (emphasis added). <br />No such language appears in section 34- 32- 116(7)(c). Instead, that section provides "Acid - <br />forming or toxic - producing material that has been mined shall be handled in a manner that will <br />protect the drainage system from pollution." <br />10 The Defendants do not dispute that the mine pool was created with the express <br />approval of the Division. See Answering Brief at 44 n.13. <br />24 <br />