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2011-09-30_ENFORCEMENT - M1977300
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2011-09-30_ENFORCEMENT - M1977300
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Last modified
8/24/2016 4:43:31 PM
Creation date
10/17/2011 12:01:33 PM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
M1977300
IBM Index Class Name
ENFORCEMENT
Doc Date
9/30/2011
Doc Name
Order
From
District Court
To
MLRB and DRMS
Email Name
DB2
Media Type
D
Archive
No
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effect on nearby Ralston Creek and Ralston Reservoir which provides drinking water to the public, as <br />well as the nature and cost of dewatering as a corrective action. The Board issued a lengthy order setting <br />forth extensive findings of fact and conclusions of law. Cotter sought reconsideration of the Board's <br />requirement for mine dewatering. The Board ultimately denied that petition by written order and issued a <br />Notice of Reason to Believe a Violation Exists based on Cotter's non - compliance the Board's Order. This <br />Court has reviewed the extensive record before the Board and finds that the Order requiring Cotter to <br />dewater the Mine and pay civil penalties for its violation of the ACT is supported by statutory authority. <br />. The Administrative Procedure Act, Article 4 of Title 24, C.R.S. ( "APA ") sets forth the standard <br />of review for agency action. Under that standard, a court must affirm agency action unless arbitrary or <br />capricious, a denial of statutory right, unconstitutional in excess of statutory authority, not in accord with <br />the APA, an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are <br />clearly erroneous, unsupported by substantial evidence when the record is considered together as a whole, <br />or otherwise contrary to law. § 24- 4- 106(7), (11)(e), C.R.S.(2010). On appeal, the Court must examine <br />the record in the light most favorable to the agency decision. See § 24- 4- 106(7), C.R.S. (2010); Lawley v. <br />Dep't of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001). Administrative agency actions are <br />presumptively valid. See, e.g., Colo. Div. of Ins. v. Auto - Owner's Ins. Co., 219 P.3d 371 (Colo.App. <br />2009). The party challenging an administrative agency's action bears the burden of overcoming the <br />presumption that the agency's acts were proper. See, e.g., Lieb v. Trimble, 183 P.3d 702 (Colo. App. <br />2008). <br />The record in the instant matter reflects an ample evidentiary basis for the Board's findings, <br />including those that Cotter failed to minimize disturbances to the prevailing hydrologic balance, failed to <br />handle toxic - forming material (uranium) in a protective manner and failed to protect the areas outside the <br />Mine from slides or damage. The Board considered appropriate corrective actions and made the decision <br />to order Cotter to dewater the Mine based upon substantial evidence. This Court cannot reweigh the <br />evidence or substitute its judgment for that of the agency after determining that the agency was supported <br />by competent and substantial evidence. Microsemi Corp. of Colo. V. Broomfield County Bd .of <br />Equalization, 200 P.3d 1099 (Colo. App. 2006). The Court finds that the administrative record supports <br />the Board's decision to order dewatering. The Board adequately considered a variety of substantial <br />evidence concerning mine pool volume, uranium concentrations, conduits between the mine pool and <br />Ralston Creek and whether mine pool water may actually be reaching Ralston Creek. This Court cannot <br />substitute its judgment for that of the agency. The Board also considered evidence of alternative <br />2 <br />
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