RECEIVED 1r AR 0 9 2016 COWONWEALTH OF KENTUCKY CIRCUIT COURT FRANKLIN CIRCUIT DIVISION NO. It MY CIRCUIT COURT AW CLERK CIVIL ACTION NO. 15-01-01125 CLERK OF KENTUCKY, . . ENERGY AND ENVIRONMENT CABINET vs. STATUS REPORT A a COAL COMPANY, et al. DEFENDANTs Comes now the Plaintiff, Energy and Environment Cabinet (hereinafter ?Cabinet?), by and through counsel, and hereby submits the following Plaintiff?s Status Report, Response to Defendants" Status Report and requested relief: I I. STATUS REPORT The matter of highest concern for the Cabinet is the amount of outstanding unreciaimed highwail that the Defendants have on their permits. Unreclaimed highwall presents severe risk of long term environmental damage and a signi?cant liability for the Cabinet. At this time, the Defendants? permits have approximately forty seven thousand (47,000) feet of unreclaimed highwall or nearly nine (9) miles. See Cabinet?s Exhibit No. 1. However,- highwall elimination was not-the Defendants? onl}r requirement under the Agreed Order. The Defendants have completed only approximately sixty percent of the reclamation obligations which require actual on the ground ?eld work. SeerCabinet?s Exhibit No. 2. This figure - represents a rsheer percentage of obligations and does not take into consideration the complexity of the work required, or the level of environmental harm. Upon analysis of the speci?c nature of the viOlations, it is apparent that the Defendants have essentially Completed the easiest reclamation work ?rst,- with disregard to the priorities given by the Cabinet, and thus the percentage complete is gratuitously in?ated. A perfect example of this is Notice of Non-Compliance No. 23-2388 which resulted in Failure to Abate Cessation Order No. 23-0711 ea Sequoia Energy Permit No. 343?9025. ?The violation of 405 KAR 16:030 (Signs and Markers) which required the Defendants to correct an incorrect permit number'on their access road signs and put up markers identifying the permit boundary on one increment was abated. Howeirer, the violation of 405 KAR 7:040 (Off-Permit Disturbance) -which required the I Defendants to repair multiple off-permit slides has not been completed. Further, at this time, the Cabinet estimates that the Defendants have completed approximately seventy percent of the permitting requirements under the agreement. There are still a number of Outstanding required permitting actions which the Agreed Order specifies the Defendants should be diligently pursuing, and de?nes diligent pursuit as responding to 4 Cabinet rednests within thirty (30) days. Also, the Cabinet notes multiple sites that would be ready for some form of bond release, were the Defendants to complete their paperwork in a timely and sufficient manner. - II. RESPONSE STATUSIREPORT The Cabinet does not dispute the Defendants? assertion that reclamation efforts have I occurred since the parties? December 14, 2015 appearance. However, the Cabinet offers the following Speci?c rebuttals to the information presented by the Defendants in their Status Report ?led on or about February 15, 2.016. Harlan County? The Defendants have claimed that there are two excavators inthis region. However, the Cabinet's inspection .team has noted only one excavator and one rubber tire backhoe. Additionally, there is not a road grader dedicated to this spread, but rather one shared- with a Virginia operation. Knott- 'County- ThejCabinet does not dispute the information the Defendants have presented about the progress on their Knott County reclamation obligations. However, the Cabinet, notes that the Defendants are also employing a CAT 777' rock truck in this region in addition to the equipment listed in the Defendants? Status Report. Pike County- At the Defendants? Bent Mountain operatioanentucky Fuel Corporation Permit Nos. 898?0882 and 893?0884), the Cabinet notes that while it has observed three bulldozers on site, per the Defendants? Status Report, the Cabinet?s inspectors have not observed the bulldozers in operation actively pushing dirt audfor reclaiming highwalls. Additionally, the Cabinet has not observed any measurable progress on highwall reclamation, which would be the case-if three bulldozers- were aetively working. During the life of the agreement between the parties, the Defendants have failed to completely-eliminate any highwall. At the Defendants? Bevins BranCh operation (Kentucky Fuel Corporation Permit No. 898-0883), the Cabinet again has not observed any measurable progress on highwall reclamation that would indicate three bulldozers were actively pushing dirt. I - At the Defendairts? Beech Creek operation (Beech Creek Permit No, 398-0775), the Cabinet understands that mining work is currently suSpended and reclamation only work will be forthcoming. Thus, at this time, the Cabinet cannot comment on the quality or duration of the reclamation work on that permit. I Letcher County? The Defendants have referenced a production and reclamation crew on the site at the Ad: Coal Corporation permit. However, the Cabinet?s inspection team has not observed a dedicated reclamation crew, and has noted there are multiple small violations that a dedicated reclamation crew could quickly abate. Additionally, the Cabinet notes that there are two Notices of Nonnt'lompliance (Nos. 53?3645 and 53-3642j on, this permit that were to be abated by June 1, 2015, but the Defendants have not begun the necessary ?eld work. Eguipment Tim - The Defendants; Status Report claims that the various operations are expending ?approximately 3000 hours per week of equipment time? to meet their obligations lender the Agreed Order. However, the Cabinet notes that the Defendants most recent weekly report submitted to the Cabinet shows equipment hour totals that are far fewer than this ?gure. For the week of February 22-28, the Defendants reported 1,780 hours. See Cabinet?s Exhibit No. 3. I I REQUESTED RELIEF FROM COURT To date, the Defendants remain in breach of the Agreed Order which is the subject of the Cabinet's Complaint. To ensure that the Defendants comply with the terms of the Agreed Order and that the Defendants will continue to comply, the Cabinet respectfully requests that the Court enter its tendered order directing the following: - 1. Asia show of good faith towards compliance with the Agreed Order, the Defendants shall eliminate a minimum of two thousand, five hundred (2,500) feet of highwall on the Beech Creek site (Permit No. 898-0775) by April 10, 2016; 2. The Defendants shall properly apply for six bond releases by April 15, 2016; 3. Going forward, in order to achieve compliance with the Agreed Order, the Defendants shall eliminate .a minimum of two thousand (2,000) feet of highwall every thirty days beginning April to, 2016; and I I 4. In order to ensure continuing compliance with the Agreed Order and this Court?s order the parties shall meet for a'status conference every thirty days, the first of 'which will be April25, 2016 at 9:00 am. and shall continue until further order. of the Court. Respectfully. submitted, ANNA GIRARD FLERSHER LANCE C. HUFFMAN Of?ce of General Counsel 2 Hudson Hollow Road Frankfort, KY 40601 Telephone: 502- 564?2356 FAX 502- 564?9212