2011-08-11_ENFORCEMENT - M1977300

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VI. The Board did not Abuse its Discretion when it Considered Cotter's Defense of Impossibility Cotter's argument regarding its offer of proof is moot. An offer of proof is designed to inform the trier of fact of the nature of the proposed evidence so the court can exercise its discretion or make a ruling on the admissibility of the evidence. Itin v. Ungar, 17 P.3d 129, 136 (Colo. 2000). The record is replete with Cotter's arguments regarding impossibility. The Board considered those arguments and found the defense to be without merit. The task of weighing the evidence and resolving questions of credibility is reserved to the Board's discretion. See McClellan, 900 P.2d at 34; Arlberg, 762 P.2d at 151. The Board provided Cotter extensive opportunity to argue its case and ultimately decided to disallow further evidence on an argument that it found not to be credible. The Board rejected Cotter's impossibility argument because it misrepresented Corrective Action 2. Cotter did not argue that it was impossible to submit the technical revision that the Division requested, or that it was impossible to take any initial steps to reinitiate or implement mine dewatering. Cotter instead argued that it was impossible to draw down the mine pool to 500 feet below the Steve Level by August 31, 2010. R:0261, 19 -22 ( "the bottom line, if you want to get to that, is from the point of starting to the point of ending, it cannot be done in less than a year "). Cotter admitted that it had not engaged in even preliminary discussions with the Colorado Department of Public Health and Environment regarding the approvals necessary for discharge and treatment. R:0210 -11 . The Division testified that Cotter never requested an extension of compliance deadlines. R:0265, 2 -3. Based on this testimony, the Board's chairperson, Ira Paulin, agreed that a discussion of impossibility was an "objectionable hypothetical because Cotter had not taken a single step to comply." R:0215, 11. 1249. 28