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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
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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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remediation and the Court finds that there existed substantial evidence to support the Board's order <br />requiring Cotter to dewater the Mine. That determination must be upheld. <br />The Court also finds no basis under the Act to require that the Board consider economic <br />reasonableness. The plain language of the Act itself is clear and unambiguous. See § 34 -32 -124, C.R.S. <br />(2010). The Board did, however, take economic reasonableness into account and that is clear throughout <br />the record. The Court agrees with the Board that it is not required to undertake an extensive cost - benefit <br />analysis. The General Assembly does not require that. Nonetheless, the Board received and considered an <br />abundance of evidence concerning the difficulties and expense attributable to dewatering as well as the <br />human health and safety issues that would be addressed by dewatering. <br />The Court further finds the Board's order requiring not only corrective action, but the payment of <br />a civil penalty was proper and supported by statutory authority. Cotter quarrels with the Board's <br />interpretation of the words "and other damage" however the Court finds that the interpretation is <br />supported by the language of the applicable rules. Moreover, the Board's interpretation is entitled to great <br />judicial deference given its charge to administer the Act. See, e.g., Lucero v. Climax Molybdenum Co., <br />732 P.2d 642 (Colo. 1987). The civil penalties imposed against Cotter are within the Board's statutory <br />authority and are supported by evidence of record and consistent with the legislative intent of the Act, the <br />objective of the legislation and the desire to avoid construing statutes to reach an absurd result. Rodriguez <br />v. Schutt, 914 P.2d 921 (Colo. 1996). Cotter's articulated statutory construction argument would not be in <br />harmony with other provisions of the Act and would lead to such an absurd result. The Board found <br />Cotter to be in violation of the Act and by violating the Act, Cotter had thereby violated its reclamation <br />permit. The Court gives great deference to the Board's interpretation of § 34 -32 -124 (7), C.R.S. (2010). <br />The Board's interpretation is supported by principles of statutory construction and is consistent with and <br />not antithetical to the overall legislative design. <br />Finally, Cotter's contention that the Board violated its due process rights when the Board heard <br />briefly from a Division member during deliberations is without merit. No objection was lodged nor was <br />there any request for an opportunity to respond and the Board heard such extensive testimony and <br />evidence from Cotter and the Division that any error that may have occurred is harmless. Moreover, it <br />does not appear from the record that the Division member, an environmental specialist who served as a <br />technical advisor to the Board, participated in any fashion in the Board's decision at the hearing. The <br />Board ultimately made the decision. Cotter received due process. <br />3 <br />
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