2011-09-19_ENFORCEMENT - M1977300

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• Board Member Kraeger -Rovey emphasized she is the Board Member who signed the August 2010 Order, and "I looked at the wording, and it says `reinitiate,' and if you had just done anything like gone to get a permit from the health department, you know, or any little thing, there are lots of first steps that could have been taken. AR:0259:25- 0260:6 (emphasis added). These wildly inconsistent interpretations of the August 2010 Order amply demonstrate the Order does not satisfy the standard established in Shell or Golden Press. Based on the Division's and Board's own statements, the conduct required by Cotter to comply with the deadline in the August 2010 Order ranged from completely dewatering the mine by August 31 to "just doing anything" to begin implementation. As a matter of law, therefore, the operative language of the August 2010 Order does not rise to the requisite level of clarity and precision. Golden Press, 235 P.2d at 594. Nor can Defendants overcome the fatal imprecision of the August 2010 Order by asserting that Cotter failed to take even an initial step to comply with the Order, as such an argument fails legally and factually. As a legal matter, an order that allows at least seven contradictory interpretations is unenforceable as a matter of law. Id. As a factual matter, the record contains undisputed evidence that Cotter, in fact, had taken the first step necessary before a treatment system could be installed.' Thus, if Board Member Kraeger - Rovey's interpretation were accepted, Cotter complied with the Order. 7 Cotter's representative, John Hamrick, testified without contradiction at the Hearing that Cotter had conducted stratified sampling of the mine pool, which is the first step necessary before any treatment system could be installed to treat mine water. AR:0263:12- 0264:2. Cotter took that step before August 31, 2010. AR:0264:4 -7. 16