2011-05-26_ENFORCEMENT - M1977300

Home Browse Search

between the corrective action here in dispute — Mine Dewatering and Treatment — and any alleged statutory violation. Without such causal nexus, the Board is without statutory authority to order Mine Dewatering and Treatment. See Opening Brief at 34 -35. In their Answering Brief, the Defendants do not challenge critical aspects of Cotter's analysis. They do not contest that the Board lacks statutory authority to order a corrective action without a causal nexus between the corrective action and an actual statutory violation. Nor do they contest that the Board lacks statutory authority to order Mine Dewatering and Treatment without a causal nexus between the mine pool and any statutory violation. The Defendants' failure to challenge these points concedes their merit. See Kosak v. Catholic Health Initiatives of Colorado, No. 08- CV- 01505- CMA -MJW, 2009 U.S. Dist. LEXIS 100400, at *17 (D. Colo. Oct. 28, 2009), aff'd, 400 Fed. Appx. 363 (10 Cir. 2010). Under these circumstances, where the record is without substantial evidence that the mine pool supports a violation of Colo. Rev. Stat. §§ 34- 32- 116(7)(c), - 116(7)(g), and - 116(7)(h), the Board's Order requiring Mine Dewatering and Treatment is arbitrary, capricious, an abuse of discretion, in excess of statutory authority, without a reasonable basis in law, and unsupported by substantial evidence, and should be set aside. IV. THE ORDER WAS ARBITRARY AND CAPRICIOUS IN IGNORING COTTER'S ARGUMENT THAT MINE DEWATERING AND TREATMENT DID NOT QUALIFY AS A TECHNICAL REVISION. Before and at the Hearing, Cotter objected to the demand to submit a Technical Revision covering Mine Dewatering and Treatment, and set forth the legal and factual basis for the objection. See AR:00256, 00912:24 - 00913:10. The demand that Cotter use the Technical Revision process, rather than a Permit Amendment process, was set forth in the Inspection 29