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TABLE OF CONTENTS <br />INTRODUCTION 1 <br />ARGUMENT 3 <br />The Board Lacked Authority to Impose Civil Penalties Based on an Alleged <br />Violation of the August 2010 Order 3 <br />A. The Act clearly and unambiguously limits imposition of civil penalties to <br />the violation of "any provision of any permit" 3 <br />B. Defendants provide no basis for ignoring the Act's plain language 3 <br />1. The legislature did not include violations of the Act as a basis for <br />imposing civil penalties 4 <br />2. The Board cannot overcome its lack of statutory authority by <br />relying on an inconsistent regulation 5 <br />3. The Division did not prove a violation of Cotter's permit 6 <br />C. Defendants also fail to rebut the constitutional infirmities inherent in the <br />imposition of civil penalties under these circumstances 9 <br />II. The Board Also Exceeded Its Authority by Entering a Cease and Desist Order <br />Based on an Alleged Violation of a Prior Board Order 10 <br />A. The Act does not include the violation of a prior order as grounds for a <br />cease and desist order 10 <br />B. To the extent the December 2010 Order is based on alleged statutory <br />violations, the Board acted contrary to law by relying on the identical facts <br />and alleged violations at issue in the August 2010 Order 11 <br />III. The Order is Contrary to Law Because Neither the August 2010 Order Nor the <br />December 2010 Order Clearly and Precisely Defines the Conduct Required to <br />Comply 12 <br />IV. The December 2010 Order Is Unlawful Because the Board Refused to Consider <br />Cotter's Evidence that Compliance with August 2010 Order Was Impossible . 17 <br />CONCLUSION 19 <br />