=Pillersdorf, DeRossett 8' Lane 3mm Ned PiileIsdoi-f Gerald Mos-5w ttorn at aw Joseph R. Lane A e'y Ryan Allison mem_w John Rosenberg (or Caunsel) - 124 West Cum Street 10 Court Street . Mt. Sterling, Kenneky 40353 Kentucky 41653 (606} 886-6090 Facsimile: (606) 83643148 (859) 498-1283 Facsmn? ?lo: (859) 498-1395 May 7, 2012 Thomas D. Shops-- Regional Director Appalachian Regional Of?ce 3 Parkway Center: Pittsburgh, 15220 Dear Mr. Shope: Please consider this correspondence to be our response and appeal to the noti?cation that we received dated April 19, 2012, as to our concerns that the recent ?ooding events in Harless Creek community involving Apex Mine Permits 8980618 and 8980614 were caused by mining activities. ere is reference to the fact that there was a ?significant intense rain fall during the storm event.? In fact the analysis of the rainfall indicated there was ?ve inches of rain during the time frame. However, what has been ignored by all of those investigating these cases is that all of the residents report that most of the rainfall occurred after the damage was done. Indeed, the video evidence indicates that following the destruction of homes on Harless Creek- in which homes were exploded and ?oated away-there was a signi?cant amount of rainfall that fell on the residents as they watched their homes ?oat away. In other words, most of the property damage occurred prior to the ?ve inches of rainfall that fell during the time frame. Indeed, the residents report standing on the hillsides during heavy rains, looking at the property damage that had already occurred. I notice in your correspondence th The correspondence we received concluded that the mining violations did not contribute to the horri?c ?ooding. Please be advised that we believe there is substantial evidence to suggest otherwise. It is important to point out that in the last two years there has been four major ?ooding events in Eastern Kentucky (Harless Creek, Pike County, Quick Sand Creek, Breathitt County, Middlesboro, Bell County, Kay ay, Knox County). All of the communities that received ?ood damages were located directly below nil?reclaimed surface mining operations. We do not think this is a coincidence. In all four matters, I have been the attorney of record and in all four incidences there appears to be a total lack of enforcement of the mining laws. The most stunning incident occurred in the Harless Creek case. In that case, Mine Inspector Greg Stapleton indicated in his deposition testimony that the mining permit that Cambrian was operating on had actually expired for a year and half prior to the ?ood event. In the enclosed deposition of Inspector Stapleton you will notice that he acknowledges that perhaps it 35 percent of the lands directly above the community which were ?ooding were tin?reclaimed. Interestingly, this is in direct contrast to the engineer?s report of Clyde DeRosse?tt, who seemed to be under the misunderstanding that there was full reclamation and vegetation. The photos that were attached to the Jack Spadaro deposition in this matter reveal a vast waste land of un- reclaimed property. Inspector Stapleton?s explanation as to why there was so much tin-reclaimed land was to point out that there was still mining activities going on. Of course, there should not have been active mining occurring on that permit because Kentucky regulations mandate that once a permit expires the Kentucky Department for Natural Resources shall immediately issue an order of cessation. Here, they did not do this and the mining activities continued unabated. Following the ?ooding, citations were issued for failing to reclaim and mining without a permit. We have served notice with the Kentucky Department for Natural Resources that we intend to ?le suit against Inspector Stapleton in Pike Circuit Court for his failure to enforce the mining laws. We don?t think that the failure to enforce the mining laws is limited to Inspector Stapleton. Similar testimony was received from Inspector Gay in the Breathitt County action. In that action, during his deposition Inspector Gay refused to acknowledge that failing to reclaim large areas directly above communities does not pose a public safety threat to the community. We believe the shameful failure to enforce the mining laws has already caused massive destructions, severaI deaths, and will continue to go unabated as long as there is culture of not enforcing the mining reclamation laws. Please advise if you need any further information as to this matter, and I will be happy to supplement it to you. Needless to say there is signi?cant amounts of legal pleadings and deposition that have been taken, all of which I would be happy to forward to you. I look forward to hearing from you as to this appeal. Sincerely, Ned Pillersdorf NP/vjp Enclosure Beam ADKINS . OF KENTUCKY PIKE CIRCUIT COURT DIVISION NO. I CIVIL ACTION NO. ET AL: PLAINTIFFS VIDEO DEPOSITION OF VS GREG STAPLETON. WITNESS CAMBRIAN COAL CORPORATION, ET AL, DEFENDANTS Pursuant to notice, the video deposition of the Witness, GREG STAPLETON, was taken before Rose M. Lovely, Notary Public, on February 1, 2012, at 10:00 at the office of Pillersdorf, DeRossett 5: Lane, 124 West Court Street, Prestonsburg, Kentucky. Said Deposition taken for the purpose of discovery, and any and all purposes permitted by the Kentucky Rules of Civil Procedure. EAST KENTUCKY COURT REPORTING SERVICE no. sox 476 ALLEN. KENTUCKY 41601 1 600-649-9052 behalf of the Plaintiffs: Hon. Ned Pillersdorf PILLERSDORF, DEROSSETT LANE 124 West Court Street Prestonsburg, Kentucky 41653 On behalf of the Defendant, Cambrian Coal Corporation: Hon. Susan L. Maines CASEY, BAILEY MAINES, PLLC . 3151 Beaumont Centre Circle, Suite 200 Lexington, Kentucky 40513 On behalf of the Department for Natural Resources.r Commonwealth of Kentucky: Hon. S. Bradford Smock (Via Speakerphone) 2 Hudson Hollow Road Frankfort, Kentucky 40601 Mr. Sam Billiter Also present: Ms . Stephanie Tyree EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 2 1 ace-5499052 . INDEX Pages Caption 1 - 1 Appearances 2 2 Index 3 - 3 Opening statements 4 - 5 Witness: GREG Direct Examination 5 ?'56 Cross Examination . 57 83 Re-Direct 83 - 95 Re-Cross Examination 95 98 Re-Direct Examination 98 101 Certification 102 - 102 EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 3. 1 soc-5499052 VIDEOGRAPHER: On the record. The time the date is Wednesday, February the let, The is 10:02 2012. This is the deposition of Greg Stapleton. location is Pillersdorf, DeRossett a Lane Law Offices, Prestonsburg, Kentucky. Commonwealth of Kentucky, Pike circuit Court, Division Number I, Civil Action.Number 10- Bertha Adkins, et a1, Plaintiffs versus Cambrian Coal Corporation, et a1, Defendants. My name is William J. Ward, I'm the videographer. The court reporter is Rose Lovely. The attorneys will please introduce themselves, who they represent, and the court reporter will swear the witness. Susan Maines for the Defendant, Cambrian Coal Corporation. I'm Ned Pillersdorf. I'm the attorney for the Plaintiffs. COURT REPORTER: Raise your right hand, please. Do you swear or affirm to tell the truth and nothing but the truth so help you God? WITNESS: I do. COURT REPORTER: .Thank you. MR. PILLERSDORF: I guess we should indicate.Brad Smock is here by speakerphone. Is that right, Brad? MR. SMOCK: Yeah, I?m on the phone. I represent the Department for Natural Resources, EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 4. 1 ~800-649-9052 Commonwealth of Kentucky. GREG STAPLETON, having been first placed under oath, was examined and testified as follows: DIRECT EXAMINATION Would you mind to go ahead and state your full name for the record, please? A Robert Gregory Stapleton. Okay. And, Mr. Stapleton, I understand you are currently retired, is that right? A Yes. Okay. And what job are you retired from? A Mine inspector with the Department. Okay. And how long were on-- now when you say with the Department, you're talking about the Department that oversees all the coal mining companies in Kentucky, correct? A Yes. All right. And how long were you a mine inspector? A. Twenty?two years. Twenty-two years. What does it mean to be a mine inspector? What are your job responsibilities? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 5. Lsoos4ssosa enforce the Kentucky statutes, you answer citizen's complaints, enforce the law, make sure that everything is reclaimed, they?re mining as the permit describes. Okay. And were you in that position as a mine inspector for twenty-two years? A Yes. Okay. As a mine inspector, were you assigned to a particular area to oversee or a particular number of mines to oversee? A Yes. Okay. Did that change somewhat over those twenty?two years? A- Yes. Okay. Considering that you have been or were a mine inspector with the Cabinet enforcing Kentucky's mining laws for twenty-two years, would it be fair to say that you are familiar with Kentucky statutes and regulations regarding surface coal mining? A Yes. Okay. And you'd have to_be in order to do your job, wouldn't you? A Yes. Okay. The mines that you were responsible for, did you also have some familiarity with EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 -the permit terms and conditions for those mines. YES . I assume you'd have to be, in order to do A your job as well? Correct. A There are several permits at issue Okay. in this litigation. For Cambrian Coal, there are permits 898?0619, 898?0819, 898?0618. And for AEP Coal, forgive it?s 898-? well, let's start with?? with Cambrian for me. Are you familiar the moment and I'll find the AEP numbers. with those permits of Cambrian Coal? A Yes. Okay. Back in July of 2010 were you the inspector assigned to be responsible for those permits? A Yes. Okay. How long were you assigned to 'these particular permits? I really don't remember. A Okay. More than a couple of months? A Yes. Okay. More than a couple of years? A Somewhere in that neighborhood. Okay. Now these three permits are all roughly contiguous to each other, correct? A Correct. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 7 . And they are in and around Harless Okay. Creek? A Yes. Okay. Are you familiar with.where Harless Creek is? A Yes. Okay. And this litigation that we?re here about today involves flooding on Harless Creek on July Are you familiar with that occurrence? 17th, 2010. A Yes. Okay. Now aS'a mine inspector, how often would you inspect a given permit that you had responsibility for? A We were required, active permits, for?? to inspect them Okay. And how often were you required to make sure you inspected every increment within a given permit? A Could you say that again, please? Yes, sir. When you would go out there to each mine, you wouldn't necessarily get around to each and every increment of that mine, is that right? A You're supposed to. Supposed to? A On a large job sometimes it's, it's very EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 8. 1 seems-9052 hard to, to make the whole thing. Is there a requirement that you make sure you have inspected every increment on a given permit every so often? A Yes. And what is that? A Well, I mean it's?? I don't know exactly what you're asking. Okay. Are you familiar with Gene Blackburn? A Yes. Okay. He was your supervisor before you retired, is that right? A Correct. He testified that at least on a quarterly basis-- A Yes. ?-you had to make sure you see every increment of every permit? A Correct. Okay. So you make an attempt to do that on a basis? A Yes. Okay. Would you then have inspected these three Cambrian permits?? and instead of having to EAST KENTUCKY COURT REPORTING SERVICE ao.sox476 9. 1 scams-9052 state all three each time, can we just agree those are the three I'm talking about? A Yes, that would be fine. Would you have inspected these Cambrian permits then on a basis during the time you were the assigned inspector? A Yes. Okay. Now the Cambrian permits were all on one side of the valley or hollow known as Harless Creek, correct? A Correct. And there was a mining company on the other side as well, is that right? A Correct. Okay. And that was AEP Kentucky Coal? A Yes. Okay. I show permit 898?0649, was that a permit that you were responsible for as well? A No. It was not? Do you know who had the responsibility for that permit? A The best I remember, Eddie Kelly. Okay. Is Mr. Kelly still with the Department to your knowledge? A No, I don?t think so. EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 ALLEN.KENTUCKY44001 10. 1-300-649-9052 retired as well? A I believe so, yes. Okay. Now what is the purpose of the inspections of the permits as a mine inspector? A Well, to ensure that the mining is progressing as, as outlined in the permit, to make sure that the environment is being protected. Okay. And the permits, before a permit is issued it goes through a fairly rigorous application process, is that fair? A Yes. Okay. So the terms of the permit or the permit conditions have been approved by the state before a mining company begins to mine? A Correct. Okay. And then your job is to ensure that the mine conducts itself in accordance with the permit conditions? A Yes. And with Kentucky laws? A Right. Okay. Now if on any given day you were to inspect one of the mines you had responsibility for and saw a violation either of the permit terms or Kentucky regulations, what would you do? EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 Iixmsnasnn 11. You write a Notice of Non-Compliance. A Okay. And what is a Notice of None Compliance? A Well, it's it?s a violation of the law that you outline the conditions and give them remedial measures for to?- to correct the situation. Okay. You tell the mining company how they need to fix the problem, correct? A Not necessarily how fixed. But it has to be fixed? Okay. So not necessarily the means they must go by to do it-- A Right. -?but what they need to take care of? A Right. Okay. So during your twenty?two years as a mine inspector were you in the habit of ignoring or not writing up violations that you saw when you inspected your permits? A No. Okay. Probably wouldn't have kept your job for twenty?two years if you had done that, would you? A No. All right. Now you also mentioned that as a mine inspector you're responsible or have EAST KENTUCKY COURT REPORTING SERVICE ao.sox475 12. 1 eon-5499052 responsibility for addressing citizen complaints, is that right? A Yes. Okay. And as I understand citizen complaints, if a citizen calls in or writes in or somehow makes the complaint known, the Cabinet takes steps to investigate that complaint? A Correct. Okay. And are those complaints assigned to the inspector who is responsible for the mine in question? A Yes. I mean the majority of the time, yes. Okay. You're going to start the process anyway? A Yes. Okay. If you need additional technical assistance from other departments, you can ask for that? A Correct. Okay. If necessary, would that include making an additional inspection upon a mine site, other than your normal inspection? A Yes, it could. Okay. The same question, if you went out there on?- to a given mine based on a citizen's complaint EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 ALLEN.KENTUCKY41601 13. 1 600?649-9052 and found any violations of the permit terms or Kentucky law, you'd issue a violation as well, would you not? A Yes . Okay. When citizens complaints are made, did you provide any information back to the complainant about your findings? A Yes. Okay. Whether they were?? whether they were in their favor or not in their favor? A Correct. Okay. And you would advise the mining company as well, isn't that right? A Yes. Okay. Regardless of what your determination might be, whether you issue a violation or notify the citizen you're not going to issue a violation, either side has the ability, meaning the citizen or the mining company, to seek administrative hearings regarding your decision-- A Yes . ??is that right? A Yes. It's kind of the first step in the process if somebody wants to pursue it further? A Yes . EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 14. 1-800-649-9052 Okay. Now some Non-Compliances are 1e and others are non?correctable. I know what correctab go ahead and explain that means, but if you could just that. How you would explain that to a jury, the difference? A Some, some violations are correctable in that they can be corrected and it does away with the violation. Other violations are non?correctable due to that things have been done that cannot be changed and, therefore, it might require permitting action or some other type of action like that, that it's not actually on ground work. Okay. Either way, whether a violation is noted to be correctable or non?correctable, the mining company is going to be instructed to take some kind of action? A Correct. Okay. And generally on Non?Compliances, there's a, there?s a box for a description of the violation and then there's a box where you indicate what remedial measures are to be performed, correct? A. Correct. And it's the inspector who decides what remedial measures are to be performed, correct? A Correct. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 15. 1 soc-6499052 It's not the mining company? A No. Okay. If the mining company doesn't like what you said, they can contest that, I guess? A Correct. Okay. And the same thing, if a citizen doesn't like what you might have said, they can contest that as well? A Correct. Okay. When you're investigating a citizen's complaint as a mine inspector, are you supposed to be biased one way or the other, toward the citizen or the mining company, or are you supposed to make your own independent determination? A Make your own independent determination. And is that what you always tried to do in your twenty?two years? A. Yes, it is. I want to talk real briefly about certain types of violations. Are you familiar with the water replacement requirement in the Kentucky regulations? A I really don't remember a whole lot about it, no. Okay. Are you familiar with the concept that there is a provision for that? EAST KENTUCKY COURT REPORTING SERVICE ao.soxa7s ALLEN.KENTUCKY41601 16. 16006499052 It's not the mining company? A No. Okay. If the mining company doesn't like what you said, they can contest that, I guess? A Correct. Okay. And the same thing, if a Citizen doesn?t like what you might have said, they can.contest that as well? A Correct. Okay. When you're investigating a citizen's complaint as a mine inspector, are you supposed to be biased one way or the other, toward the citizen or the mining company, or are you supposed to make your own independent determination? A Make your own independent determination. And is that what you always tried to do in your years? A Yes, it is. I want to talk real briefly about certain types of violations. Are you familiar with the water replacement requirement in the Kentucky regulations? A I really don't remember a whole lot about it, no. Okay. Are you familiar with the concept that there is a provision for that? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 16. Laoos4ssosa Yes. You might have to look up the Okay. nitty gritty details of it? A Correct. Okay. Would you agree that if an inspector or the Department finds that a natural water supply has been contaminated, diminished, or interrupted, water replacement can be ordered? A Yes. Okay. And there is a difference between a temporary contamination, diminished. and a permanent one, isn't that right? A Yes. Okay; And requirements are different depending on whether it's a temporary or permanent condition? A Correct. Okay. If it's a temporary impact to the water supply, the mining company only has to provide a temporary supply of water, isn't that right? In most cases, yes. A. Okay. There's always exceptions to every rule? A Yes. All right. And if it's a permanent EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 17. 1-300-649-9052 adverse effect, then they're supposed to provide some kind of permanent supply? A Yes. Okay. And there are time frames on how long they have to provide a temporary supply and how long they have to provide a permanent supply-~ A Yes. ??is that right? In a case where someone is?- a citizen has a concern or the Department has a concern about the natural water supply, who makes the decision if there is an adverse effect, the citizen, the Cabinet, or the mining company? A It would be the Cabinet. Okay. And who makes the decision if that effect is temporary or permanent? A It would also be the Cabinet. And again, if somebody doesn't agree with you, they can move on?- A Yes. ?-to some kind of administrative proceeding? The nature of the replacement that is required, be it providing filters, drilling a new well, hooking up to city water, who makes that determination? Is that also the Cabinet? A Also the Cabinet, yes. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 1s The regulations involving groundwater iron, talk a great deal about mineral content, do they not, sulfate?~ A Yes. ??manganese, conductivity, pH, those types of things? A Correct. Okay. And those are characteristics of water that are regulated and are part of what the enforcement laws and regulations want?? want you to keep check on and make sure there's no adverse changes to those? A Yes. That's a really badly worded question, but you understand what I?m asking? Okay. Is coliform bacteria one of the parameters in water condition that the Cabinet regulates? And if you don't know, that's fine. I really don?t know. Okay. I've forgot a lot of this. The joy of being retired, right? Yes. Okay. As part of the permitting process, Drowns mining companies have to collect and provide some background water quality data, isn't that right? A Correct. EAST KENTUCKY COURT REPORTING SERVICE ao.sox476 19. ?An And during the mining process they are monitoring laws to determine what the water quality is, isn't that right? A Yes. Okay. Immediately after the flooding on Harless Creek in July of 2010 while you were still an inspector, are you aware of any complaints filed alleging that the natural water supply had been damaged by the mining? A I really don't remember any. Okay. When did you retire? What's the date of your retirement? A September 1. 2010? A 2010, I believe it is. Okay. It was about six weeks after this flooding event, isn't that right? A Yes. Okay. So if the flooding occurred in 2010, you retired in 2010? A Yes. Okay. We have in this case discussed numerous Non?Compliances, both before, immediately after, and well after the mining, some of which were issued by you, some by other people. We haven't really discussed any EAST KENTUCKY COURT REPORTING SERVICE ao.sox475 20. DHEO Non?Compliances though that were unabated at the time of the flooding on Harless Creek. To your recollection, were any unabated Non-Compliances on these Cambrian permits just before the flooding? A I really don't remember any, no. Okay. I'd like to show you what was attached to Mr. Blackburn's deposition as exhibit one, and it's Non?Compliance 53-1161, based on an inspection of July 11, 2008 and I believe you were the inspector on this. It?s kind of hard to see, but is that you down there? A Yes. Okay. This is a violation that was issued back in July of 2008 regarding a diversion ditch. To your knowledge, was this Non?Compliance of approximately two years before the flooding had been abated before July 17th, 2010? A Yes, I think so. Okay. Is there a date on that Non- Compliance by which time remedial measures were to be completed? A 8/11/2008. And this is a correctable violation, correct? A Yes. I'll go on and show you this page. The EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 21, 1 sec-6499052 Mammy-mu my down here at the bottom, this second page of exhibit one, essment for a fine on this Non?Compliance under is the ass the, let's see, I'm.looking, good faith points that can be sessed a fine. awarded to a mine company when they're as What does it indicate? It indicates that it was abated by the that. A initial deadline and there was five points given for So if it was abated by the initial Okay. deadline, it was abated by August 11th, 2008? A Yes. Okay. Would this Non-Compliance issued back in July of 2008, which was abated in August of 2008, have had anything to do with the events of July 17th, 2010? A Not to my knowledge. Do you even know if this property or SS- 27A was within the Harless Creek watershed? A I really don't remember right now. Fair enough. Now based on what we just looked at as part of exhibit?- page two, exhibit one, to Mr. Blackburn's deposition, was that a violation that Cambrian acknowledged and took care of and paid? A Yes. Okay. Acknowledged it there and they took care of it in the initial time frame? A Yes. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 ALLEN.KENTUCKY44601 22, 14mx>s4ssosz Okay. And paid their fine? A Correct. Approximately how many permits would you have been responsible for in July of 2010? In the thirties. A In the thirties? A Yes. Okay. Were some of them like Cambrian in that they had multiple permits in one location? A Yes. Okay. Were they all within Pike County? A Yes. Okay. Now I believe you've already indicated that you're familiar with the flooding on Harless Creek of July 17th, 2010. Are you also familiar with the storm event that occurred on the same date? A Yes . Okay. Did you live in Pike County at the time-- A No. ??of this flooding? And where did you?- what county did you live in? A Floyd. In Floyd? Okay. Do you have any family that lived in Pike County? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 23. 1 600-649-9052 No. Okay. Do you have a clear recollection of the rain event and the flooding that took place in July of 2010? I understand that you weren't actually probably physically present for it, but the aftermath of it? A Yes. And the fact that it happened? A Yes. Would you agree that in certain areas of Pike County there was a substantial storm event on July 17th, 2010? A Yes, I would. Okay. If I told you July 17th, 2010 was a Saturday, would you agree with that? A Yes. Okay. Beginning Monday, July 19th, 2010 did you, in your role as a mine inspector, have a lot of work to do because of the flood event? A Yes, I did. Okay. What action did you take following this storm event? A We, we started checking areas where we had complaints. We went to the mine sites. Did you check all your permits after this rain event EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 24. Lexmmsenn Okay. Just ones in certain areas? Just ones in certain areas at this time, yes. Okay. The ones that had the most rain? A The ones that had the most rain. Okay. Were you looking just because of complaints or also to see how some of those mine Sites stood up to this storm event? Both, yes. A Would that be typical in an event Both? where there was an unusually heavy storm event, that you would want to go check on the permits in that area? A Yes. Okay. And what is the purpose of Checking on those permits that were in an area where there was a large storm event? A well, to ensure that the permit had withstood the rain and had not caused any potential hazards to areas below the permit. Okay. Under the mining regulations is there a particular type of storm event that a surface mine is supposed to be designed to withstand? A Yes. There's different parameters for different, different areas of the mine, such as sediment EAST KENTUCKY COURT REPORTING SERVICE PO. Box in: ponds and so forth. Okay. What is the maximum storm event they're designed to withstand? A A hundred year, I believe on some areas. Okay. And what are sediment ponds to be designed for? A I really don't remember. Okay. But a hundred years is the outside we?re looking at? A That's-? as far as I know, that's the biggest storm event I can remember. Okay. All right. And that hundred year storm event is based on a twenty?four hour length.storm, correct? A Yes. Okay. Do you recall in Pike County roughly what a hundred year, twenty?four hour storm, how inches of rain that would be on average? many A No, I don't. Okay. To your recollection, based on what you saw after the fact and what information you were provided by, whether it be citizens or mining companies within those permits that you were responsible for, was this a significant rain event? A Yes, it was. EAST KENTUCKY COURT REPORTING SERVICE R0.BQX476 26. ALLEN. KENTUCKY 41601 1 6006499052 PJr'ern- Okay. Greater than the ordinary rain event? A Yes. Was it, to your understanding, greater than a hundred year storm event? A I really don?t remember. Okay. Okay. The plaintiffs in this case have recently disclosed a mining engineer by the name of Scott Simonton. Are you familiar with-w A No. -?Scott Simonton at all? A No. Okay. He issued a report that talked about four Non-Compliances for Cambrian, and I want to talk a little bit more about those four Non-Compliances that were an issue for him. MR. SMOCK: Susan, what was the engineer's last name? MS. MAINES: Simonton. MR. SMOCK: Can you spell that? MS. MAINES: S?i?m?o-n?t?o-n, Scott. MR . SMOCK: Okay. What I want to ask you about is Non? Compliance 53-1828, which was attached as exhibit six to EAST KENTUCKY COURT REPORTING SERVICE eo.sox47e 27. Gene Blackburn's deposition, and it regards an inspection dated 9/13/2010. Now on 9/13/2010 you would have been retired, correct? A Yes. Okay. I guess my question would be?? and I'll go ahead and read the violation to you. ?Material originating from the spillway of sediment structure thirty? five has been deposited beyond a permitted and bonded area." After the flooding and prior to your retirement, had you conducted a thorough inspection of the Cambrian permit? A Yes. Okay. And if you had noted material originating from.the spillway of sediment thirty?five that was deposited beyond the permitted and bonded area, would you have written a violation for that? A During that time frame we did several inspections and there were areas that were going to require Non-Compliances. Some of those we waited to combine and do a final investigation on. Okay. A It's possible. This, this sediment pond, I do remember that sediment pond and the material from the spillway had been-? been washed out of that spillway. Washed out? So did it go off permit? EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 23. 1 soc-15499052 the best of my knowledge, I think it did, yes. And what watershed was this in? A It would have been in Harless Creek. Okay. Did, did the material that had washed off from it go down to, into main Harless Creek, into the head of Harless Creek? A I really don't remember that. Okay. The material coming from?- would that have been something that occurred as a result of the .heavy rainfall and water-? A Yes. --flowing through the sediment structure? A Yes. Okay. That's not a condition that, to the best of your knowledge, existed prior to the rain, storm event of July 17th, 2010? A No, it did not. Okay. All right. Violation, or Non? Compliance 53?1556 on permit 898?0619. This Non?Compliance and I'll go ahead, and read you the description before I hand it to you. "The sediment level and sediment structure 83?39 has exceeded the approved elevation as set forth in the permit plan below hollow fill number nine on increment twenty?two. The inspection was conducted on July 29, 2010. EAST KENTUCKY COURT REPORTING SERVICE so.sox47s 29. 1 600-649-9052 Now Mr. Blackburn is the individual that signed this. But do you recall yourself inspecting that particular sediment structure and having knowledge of this Non?Compliance? A Yes. Okay. Did you personally witness the condition of 33?39 after the rain event? A Yes. Okay. Did 83?39, to your recollection, breach? A No. Did 55-39 overtop? A No. Was the berm at the front of 33?39 intact after the rain event? A Yes. Okay. If you could please, just so there's no misunderstanding about what I or you are referring to, what's the purpose and function of a sediment structure such as 88?39? A It's to catch the, the drainage from a given area and allow the sediment to settle before it enters the waters of the Commonwealth. Okay. So it's not intended to prevent water from passing through? A No. EAST KENTUCKY COURT REPORTING SERVICE 30 1 soc-6499052 . It?s intended to prevent sediment from passing through? A Sediment. Okay. This Non-Compliance obviously indicates that after this storm event on July 17th, 2010, 83?39 had exceeded its approved capacity level and needed to be cleaned out, correct? A Correct . Based upon your knowledge and inspection of this permit, was that sediment structure 39 in that condition prior to the flooding of July 17th of 2010? A No, it was not. Okay. WOuld it have filled with sediment during the storm event? A Yes. Is that what those sediment structures are designed to do? A Yes, they are. Okay. Do you have an opinion as to whether or not 38?39 operated as designed or not in the storm event of July 17, 2010? A Yes, I believe it did. Okay. And I may have asked you this and if I did I apologize. These sediment structures, are they to withstand a twenty?five year storm event or a hundred EAST KENTUCKY COURT REPORTING SERVICE so.sox47s 31. 1 soc-6499052 year? I really don't remember. A Okay, fair enough. I think I asked you that. A Yeah. Were there any sediment structures that you're aware of on these Cambrian permits within the Harless Creek watershed that breached? A NO. Okay. Were there any that did not appear to function as they were or should have been designed for this type of rain event? A No. They all functioned just as they were designed for. Okay. In terms of the sediment structures on the Cambrian permits within the Harless Creek watershed, overall were you pleased, displeased, happy, disgusted, what, with how those sediment structures performed in this rain event? A I thought they, they held up extremely well for the amount of rain that they had. Okay. To your knowledge was 33?39 constructed according to its permit? A Yes. When the permit application was EAST KENTUCKY COURT REPORTING SERVICE ao.sox475 32 Lseoe4eeosz submitted, would 38?39 have been part of that permit application? A Yes. And would the design and proposed construction of 33-39 have been included in the permit application? A Yes. Okay. As the permit was approved, the proposed design and construction of 88?39 was obviously approved by the state as well? A Yes. Okay. The specific locations of these sediment structures, is that also included on the permit where they're to be located? A Yes. Is that also part of what's approved as part of the permit application process? A Yes, it is. Was 83-39 in its approved location? A Yes. This Non-Compliance, 53?1556, was it issued to indicate that 88?39 had any causal relation to what occurred on Harless Creek and caused the flooding? A No, I don't think so. Okay. I want to show you, and this goes EAST KENTUCKY COURT REPORTING SERVICE ao.sox476 33_ 1soaenmx52 with Non-Compliance 53-1556 which is a mine inspection report for the same permit and ask you what-? what these mine?? what types of information these mine inspection reports include? What type of information they include? A Yes, sir. A Well, it includes?? Let me ask you this. Does it indicate anywhere, how many acres are permitted on this permit? A Yes. Okay. And how many acres were approved in permit 898?0619? A Five hundred and sixty-seven point four six. Okay. Does it also indicate how many acres are estimated to have been disturbed as of this date? A Yes. And how many acres is that? A Three hundred and twenty?five. Okay. Does it also estimate how many acres have been reclaimed as of the date of the inspection report? A Yeah. And how many acres is that? A A hundred. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47e 34, 1-300-649-9052 Okay. Would you agree that permit 898- 0619 is partially in Harless Creek's watershed, but partially in other watersheds as well? A Yes, it is. Okay. And this inspection report, while it tells us how many acres are on the permit and how many acres have been disturbed, it doesn't tell you how many acres are in each watershed, does it? A 'No. Okay. That would be the total permit acreage? A Right. Okay. And according to this inspection report, approximately a hundred acres of permit 898?0619 of the three hundred twenty-five that had been disturbed had been reclaimed as of the date of this inspection, correct? A. Yes. Are you familiar with a gentleman named Jack Spadaro? A Yes. Okay. Mr. Spadaro has testified on multiple occasions within his deposition that there was zero reclamation done whatsoever on permit 898?0619 as of July 17th, 2010. Would you agree or disagree with his characterization? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 35. Disagree. Okay. And you were on that permit on a basis? A Yes . So you would have personal knowledge of what reclamation was occurring on that permit? A Yes . Okay. The next one I want to ask you about is Non?Compliance 53?2478. This one is on permit 898~0819, and the description of violation-- well, it has three parts to it. And part number one deals with diversions and SB. Part two deals with 38-9 and actually mentions the Powells Creek watershed. And part three deals with increment three and the Powells Creek watershed. Who was the inspector who issued these? A Myself. Yourself? Were all of these within?- all three violations on this Non~Compliance within the Powells Creek watershed? A Yes, I believe they were. Okay. And if they were in the Powells Creek watershed, they wouldn't have anything to do with flooding on the Harless Creek watershed, isn?t that right? A Correct. Okay. If the three violations were in EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 36. LBOOEAQQOSZ Powells Creek, would you agree that Non-Compliance 53-2478 has no causal relation to what occurred on Harless Creek? A Yes. Okay. I'm going to show you Non? Compliance 53?2425 on permit 898?0619 stemming from an inspection on July 26th, 2007, which specifically refers to sediment structure twenty-seven and the property of Michael Thacker, who is not a plaintiff. Who is the inspector on this Non?Compliance? A It's myself again. Okay. To your knowledge, did this involve property within the Harless Creek watershed? A I really don't remember. Okay. Would SS-27 be marked on a permit map? A Yes, it would. Okay. And you could tell from that what watershed it would be in? A Yes . Okay. I think there's been other testimony it was in Biggs Branch. Does that ring true to you or not? A It sounds correct, but I really don't remember exactly where it was?? was. If in fact this was in Biggs Branch, EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 37_ 1 coo-6499052 would it have any relation to what occurred on Harless Creek? A No. Okay. That leaves Non?Compliance 53?2479 on permit 898-0619 stemming from an inspection dated 8/3/2010. There are two portions to this Non?Compliance. The first is "permittee has allowed the expiration of the permit, and engaged in coal removal on a surface mining operation." And part two is "permittee has failed to achieve required reclamation within the specified time frame of five hundred and forty days on increments that are listed." Who was the inspector on this particular Non? Compliance? A I was. Okay. I want to start with the first violation there which is the expiration of the permit. There's been suggestion or characterization that Cambrian Coal operated without a permit. This Non?Compliance was issued in regard to a specific permit number, correct? A Yes. That being 898-0619? A Yes . So Cambrian was issued that permit after going through a permit application process and was given permission to mine here? EAST KENTUCKY COURT REPORTING SERVICE 33_ Lsooe4ssosz Correct. Okay. The surface mining done by Cambrian on 898-0619 was pursuant to a permit issued by the state? A Yes. All right. At some point in time this permit, for some reason, was not timely renewed. Is that a fair characterization? A Yes. Okay. Do you have knowledge of what happened with that or why it didn't renew when it should have? A I really don't remember. Okay. To your knowledge, did Cambrian apply for renewal and get turned down? A I can't remember that either. Okay. If a permit had applied for non?- I'm sorry, applied for renewal and been refused, is that something as the inspector on that permit you would expect to have known? A Yes. Okay. Do you recall ever learning that? A NO. Okay. According to the Non?Compliance, I?m not sure if it?s on that page or this page, when did EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 39. 1 soc-6499052 the permit expire? A 1/22/2009. Okay. And between 1/22 of 2009 and July 17 of 2010, you would have inspected that mine, roughly, at least eighteen.times? A Yes. Okay. Was this Non?Compliance ever issued at any other time between January of ?09 and July of 2010? A NO. Okay. Did you shut them, this permit down for any reason between January '09 and July 2010 for a permit having expired? A NO. Okay. Did you realize the permit had expired before this inspection on August 3rd of 2010? A No. Okay. To your knowledge, did Cambrian realize it had expired? A No. Okay. The Non-Compliance, portion one of the violation for mining when a permit had expired. There's only two increments included in that, isn't that right? A Yes. EAST KENTUCKY COURT REPORTING SERVICE R0.EOX476 40_ b8006499052 And what increments are there? A Eighteen and nineteen. Do you know how many increments there were on permit 898-0619? I don't recall on them, ma'am. A Okay. At least nineteen, I guess? A Yeah, there were a bunch. Okay. Do you know, as we've said today there were three Cambrian permits up in this area all contiguous to one another, correct? A Yes. Do you know whether any portions of any one permit were transferred to any other permits? A Yes, there were some increments transferred. Okay. Do you know whether portions or increments of 0619 were transferred to 0319? A I believe there were, yes. Okay. Any increments that were transferred to another permit would then be governed by that other permit, correct? A Yes. Okay. And whatever the terms and conditions of that other permit would have been? A Correct. EAST KENTUCKY COURT REPORTING SERVICE R0.BOX47B 41. Lsoos4ssosz Okay. When it was realized this 0619 had expired, the state had no choice but to, to order Cambrian to stop doing anything on the permit until it was fixed, correct? A reclamation? A Correct. Does that include active mining and I don't think it includes reclamation. Okay. What were the remedial measures that you instructed Cambrian to take? A To cease all mining operations and bring the area mined after permit expiration under permit. permit renewed? A another permit? .A guess apply for a .A (3 C) Okay. That means they could get the Right. They could transfer these increments to Correct. Okay. Is there any other option? I new permit? Apply for a new permit, yeah. Okay. Renewal. Is this a correctable violation? Yes. EAST KENTUCKY COURT REPORTING SERVICE R0.EOX476 ALLEN.KENTUCKY41BO1 42. 1 BOO-6499052 Okay. During the time frame that the permit was expired, did you say you continued to inspect this permit, correct? A Yes. Okay. If Cambrian, during that time, had not been conducting its mining operations pursuant to the terms of 0619, you would have issued a NoneCompliance for that, wouldn't you? A Yes. Okay. This Non?Compliance indicated that the permit expired. That doesn?t mean that during that eighteen month, roughly, time frame, Cambrian was mining willy?hilly, however it pleased-- A No. -?contrary to its permit terms? A No. Okay. Everything, unless there was a Non~Compliance for it, everything they did during that time was pursuant to their permit? A Yes. Okay. And the fact that this permit had technically expired or for some reason was not renewed, the fact of that expiration alone, that didn?t cause the flooding on Harless Creek, did it? A No. EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 43, 1 soc-5499052 Okay. Are you aware of any Non- Compliances that were issued or did you issue-- issue any Non-Compliances against Cambrian after the flooding for failure to comply with permit terms or conditions? A Not to my knowledge. Okay. So no mining contrary to what was outlined in their permit? A No. Okay. Now typically when a permit runs out and is not renewed, it means bond has been released, all the reclamation is done and there's no need to renew it, right? A Right. Okay. When you allow your permit to expire and you don't intend to renew it, all the reclamation work better be done and your bond better be released, is that right? A Correct. Okay. When a permit expires?? well, let me ask you this first. You don't have any?? aware of any intent on the part of Cambrian to allow its permit to run out, not intend to renew it and yet continue to mine, are you? A No. Okay. For whatever reason the 1A permit EAST KENTUCKY COURT REPORTING SERVICE RO.BDX476 ALLEN.KENTUCKY41601 44, 1 soc-5499052 technically expired, also technically all reclamation should be complete? A Yes . Okay. So technically because Cambrian did not renew this permit, technically the reclamation should have been completed? A Yes. Okay. Let's then talk about part two of this Non?Compliance, and if you want to take a look at it you can. We-? we've had a lot of discussion about what that means in this litigation.' For example, it's been suggested that that second violation on this Non?Compliance means that Cambrian.failed to do any reclamation whatsoever on this permit. Is that what you meant? A No. Okay. Mr. Spadaro has testified on page one thirty-six of his deposition this Non?Compliance means Cambrian went outside its permit area, did no contemporaneous reclamation, and this failure to do reclamation existed for quite some time and that this was to indicate that they had mined outside the permit area. Is that what you meant? A No. Okay. Does this Non?Compliance mean Cambrian hadn?t done any reclamation at all on these EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 45, 1 -soo-e49-eosa increments on this permit? A No. All right. It's your Non?Compliance, you wrote it. Why don't you tell us what that means? A It means that they had not completed reclamation on, on some areas to the?? to the point where they could apply for bond release. Okay. So that's connected to the fact that the permit expired? A Yes. Okay. So if the permit had not technically expired, would that Non?Compliance have been issued? A On some areas it's possible it could have been. Okay. A 1 Due to the time frame. Okay. A Exactly, I don't remember exactly where or what areas it would be, but it's possible. It?s possible? A Yes. Okay. But the Non?Compliance or this violation really is linked to the fact that the permit itself had expired and yet these increments weren't at EAST KENTUCKY COURT SERVICE eo.sox476 45. namesaseosz phase one? A Yes. Okay. Is that somewhat of a technical violation? A Yes. Okay. Was this meant to suggest in any way whatsoever that Cambrian was failing to do contemporaneous reclamation, failing to reclaim their mine site or ignoring their reclamation obligations? A No. Okay. The second part of this Non? Compliance, did that have any causal factor to the flooding on Harless Creek? A I don't think so, no. Okay. Were all of those increments mentioned in Harless Creek? If, if you don't recall, that?s fine. A I don't really remember. No, I don't. Okay. Are you also familiar with Cambrian permit 898-0620? A 0620? Right now I can't remember which one it is. That?s not a problem. Okay. Let me ask you this. Any Cambrian permits, because we've had discussion about a lot of them, any Cambrian permits that EAST KENTUCKY COURT REPORTING SERVICE ao.sox47a ALLEN.KENTUCKY41501 47_ 1 800-649-9052 were not within the Harless Creek watershed, would the mining on any of those permits have had anything to do with the flooding on Harless Creek? A No. Okay. You've also testified you?re aware of where Harless Creek is. Are you aware of where Jimmies Creek is? A Yes . Is that in the Harless Creek watershed? A NO . Could that have been impacted by the Cambrian mines that are at issue here? A Could Jimmies Creek been, been?? Impacted by the mining? well, let me ask you this way. The Cambrian permits, were any of them in the Jimmies Creek watershed? A I don't recall any of it being in Jimmies Creek. Okay. You have Cambrian, you have Harless Creek, go up the mountain you have AEP, come down and you have Jimmies Creek, correct? A Yes. Okay. We also had some discussion about Non?Compliances that were issued to Cambrian on these permits, on other permits in?- for conditions found in late EAST KENTUCKY COURT REPORTING SERVICE ao.soxa7s 48. 2010 or 2007. Would those Non?Compliances have anything to do with the flooding of July 2010? A Not to the best of my knowledge. Okay. Conditions that arose or occurred -months later wouldn't have anything-- A NO. ?-to do with the flooding, would they? All right. The opinion has been offered by Mr. Spadaro and proposed by the plaintiffs, that Cambrian's clear practice with its mines is to never do any reclamation or take any steps toward proper reclamation. 'As an inspector assigned to multiple Cambrian permits would you agree with that characterization? A No. Would the Cabinet or you as an inspector allow an operator or permittee to keep mining if it never took any steps toward reclamation? A No. Okay. That?s part of what enforcement action would be? A Correct. Okay. There's also been suggestion raised that either under the?? the mining laws in Kentucky or the terms of these Cambrian permits, it would be improper to mine on more than one increment at a time. Is EAST KENTUCKY COURT REPORTING SERVICE so.sox47s . 49_ 1 ?800-649-9052 that accurate? A No. Okay. Is there any requirement that you complete mining and reclamation of one increment before moving on to the next increment? A NO. Okay. The breaking down of a surface mine into increment has more to do with the bond than anything, doesn?t it? A Correct. And you can obtain bond release on individual increments as you move along, correct? A Yes. There has also been an allegation that the Non?Compliances issued by you and/or by the state are evidence of intent or a plan by Cambrian to circumvent mining laws and regulations and completely disregard those laws. Did you ever find that to be the case when you were inspecting Cambrian? A NO. Okay. The Non?Compliances that you issued, were they intended to provide evidence of that? A No. Permit 0619 and permit 0819 were active permits at the time of the flooding, correct? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 50, 1 soc-5499052 Correct. Okay. But permit 898?0618, that was actually pretty far into reclamation, was it not? A Yes, it was. Was it being actively mined at the time of the flooding? A I don?t think there?s anyplace on it that was actively mining. Okay. After this storm event, did you issue?? issue any Non?Compliances on these Cambrian permits within the Harless Creek watershed for doing improper reclamation or not doing the reclamation required by the Department? A I don't think so. I understand that you were not the inspector assigned to the AEP mine across the way. Did you ever have opportunity or reason to go up on the AEP mine site after this flooding event? A I don?t think I went on it after the flooding event, no. Okay. In what other areas in Pike County did you have permits that really needed to be looked at after this storm event in July of 2010? A I had areas in, I can't remember what that hollow?s name is. I had a Cambrian permit on Road Creek. EAST KENTUCKY COURT REPORTING SERVECE RO.BOX47S ALLEN.KENTUCKY44601 51, 1 600-649-9052 Okay. A Was that Road Creek? That wasn't Road Creek. If you can remember. He can't answer for you. Okay. A I can't remember. That's fine. Fair enough. A I'm getting old and I've been away from it for a long time, but I did have other areas that needed to be looked at, yes. Okay. All right. Are you familiar with where Raccoon Creek is? A - Yes. Okay. Are you familiar with the flooding that occurred over on Raccoon Creek? A. I have?? have some knowledge. Okay. And there was a lot of damage over there as well? A Yes. Are there?? were there any active surface mining permits in Raccoon Creek to your knowledge? A I think there was, but I really don?t know. Don't know? Okay. You weren?t assigned to that? EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 52. 1 soc-5499052 was not assigned to anything on Raccoon Creek. Okay. All right. After the flooding there were several public meetings held at a church down at, at the mouth of Jimmies Creek to which the plaintiffs were invited and Mr. Spadaro was there and a hydrologist was there, the press was there. Were you or, to your knowledge, anyone from the state invited to come to these public meetings and talk to the residents about Harless Creek, what had occurred or whether the mining had any role in that? A I don't remember anything. Mr. Spadaro was one of a group that took a tour, conducted an inspection of the Cambrian mine site in August of 2010 and you were on that, part of that group, were you not? A Yes. Okay. There Were officials from, or employees of Cambrian that were there, various officials from the state, I believe Freddie Coleman and Mr. Spadaro, is that correct? A Yes . Okay. Were you with Mr. Spadaro, or was the whole group staying together during that whole course of that inspection? EAST KENTUCKY COURT REPORTING SERVICE 53_ 1 soc-5499052 Pretty much, yeah. 0 Okay. So whatever he saw you would have seen as well? A Yes. Okay. Mr. Spadaro has offered the testimony that there was a massive slip failure above ss- 39, massive debris flow and earth movement below 83?39 into Harless Creek, with evidence of 83?39 clearly having overtopped and sediment overflowing Is that something you observed. A I don't remember to that extent, no. Okay. You already testified that 58?39 did not overtop? A It did not overtop. Okay. You didn?t see any signs of sediment overflowing the top of 38-39? A No. If you didn't see signs of sediment overflowing the berm of 88?39, you wouldn't have seen sediment flowing down from the berm towards Harless Creek then, right? .A Correct. Okay. He also testified that at the time all of you were there on that group inspection heavy equipment was removing the sediment material that had EAST KENTUCKY COURT REPORTING SERVICE PD. BOX 476 .. . EH wan-n mk'v 41601 54. overtopped 58?39 from the top of the berm. Did you witness anything like that? A No. Okay. Do you recall whether anyone, while on that inspection with Mr. Spadaro and the others down around 33?39, whether anyone from Cambrian made statements or admissions that the pond had overtopped? A No. During your inspection of the Cambrian permit after the flooding, did you find evidence within the Harless Creek watershed of multiple diversion breaches and slides going all the way through the woods down towards the creek or into the creek? A I don't remember any, no. Mr. Spadaro also testified there was no vegetation on the Cambrian site, or no vegetation to Speak of, a very poorly reclaimed area, much of it hadn?t been reclaimed at all, no attempt to grade, seed, or mulch the mining area. Would you agree that was the condition of permit 0619? A No. Did Cambrian at anytime mine, mine outside its approved and permitted area on these jobs in relation to the flooding of Harless Creek, in that time frame? EAST KENTUCKY COURT REPORTING SERVICE so.sox47s 55, 1-500-549-9052 don't think there was any off permit mining in that area. Okay. Did you cite Cambrian after the flooding of July of 2010 for mining outside the permit area without approval? A No. Is it your opinion, as a mine inspector assigned to this mine, that immediately following the rain event of July 17, 2010 that the vast majority of the Cambrian sites were not in compliance with the law? A No. I asked you earlier whether you were pleased, displeased, happy, disgusted, what have you, with how the sediment structure withstood this storm event, but let me ask you the same question about the permits in Harless Creek in general. Were you pleased, displeased, surprised, disgusted, what have you, what was your overall opinion of how these permits withstood this significant rain event of July 2010? A I thought the permits held up exceptionally well for the amount of rain that we had. MS. MAINES: I think for the moment that's all I have. I may have more after Mr. Pillersdorf, but for the moment that's all I have. Thank you very much. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 ALLEN.KENTUCKY44501 55_ 1 soo-s49-sosz CROSS EXAMINATION BY MR. PILLERSDORF: Mr. Stapleton, do you have a copy of the citations you wrote with effect to again, 898?0619? Susan, do you have an extra copy so he can look at it? MS. MAINES: What's the Non? Compliance number? MR. PILLERSDORF: It's the one about failing to reclaim and without a permit. Do you have a copy of that in front of you? W: Is it 53-2479? MR. PILLERSDORF: Let me just?* go make a copy of all this. Okay. MR. PILLERSDORF: Make sure he?s got a complete copy of all that. MS. MAINES: This is Mr. Simonton's copy. MR. PILLERSDORF: You don't have a copy of that? I don't believe I do. While she's doing that, Mr. Stapleton, why did you resign? A I had enough time in and I was burnt out. .Okay. Did your resignation have anything EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 57_ 1 600-649-9052 with the events on Harless Creek? A Maybe to a small degree. Okaysmall degree? A From January the of 2010 until the flood in July, the area I had, I had a very active area and I had over I can?t remember the exact number, forty~some complaints, citizen complaints on coal companies during that time. After the flood I got forty-some more and I got tired of writing letters. When you say you got tired of writing letters, what do you mean by that? A Letters to the citizens as part of the, the process of investigating the citizen's complaint. Okay. What was irritating about that? A The amount of time it took in regards to my other duties. Let the record reflect I'm showing him a copy of-? well, you tell us what exactly that's a copy of. A It's a copy of my notice of Non? Compliance 53?2479. Okay. Is that for?? is that permit number 898?0619? A. Yes. Okay. As I understand it, on this set of documents on page two there's an area indicated acres EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 53, permitted, acres bonded, acres disturbed, and acres reclaimed. Do you see that? A Yes. Okay. Just for the record, was it-? do you fill in those numbers? A Yes . Okay. How many acres were, were permitted? A The total permitted is five hundred and sixty?seven point four six. Okay. And how many acres were disturbed? A Five ninety?two eighty?six. Explain to me why there are more acres disturbed than acres permitted? A I really don't know. It could be a typo. Ms. MAINES: I'm not sure what you're looking at, but I see acres permitted, acres bonded as five ninety-six, and acres disturbed is something different. Explain the difference between acres permitted and acres bonded. A It was acres bonded, I'm sorry. Acres disturbed is three twenty?five. Okay. Now on acres disturbed, do you have an independent recollection why you indicated three EAST KENTUCKY COURT REPORTING SERVICE RD.BOX476 59. 1 -soo-s4s-sosz twenty?five? Was it because sort of the mining operation, they were reclaiming it or what was going on? A I don't really understand what you asked. Why did you write three hundred and twenty-five for estimated acres disturbed? A That's what we estimated that was disturbed on that permit. Okay, what's your definition of disturbed? A A disturbance different from original ground. Okay. And how many acres did you indicate were reclaimed? A A hundred. And the hundred acres that were reclaimed, tell me exactly where those hundred acres were, sir, on this permit. A I can't tell you that. Now you indicated earlier in response to Ms. Maines' question you weren't sure if this was in Harless Creek or perhaps another area. Isn't it true that the hundred acres that were reclaimed were not in the Harless Creek watershed, sir? A I really don't remember. Have you ever looked at the video of the EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 60, 1 soc-5499052 area? A No, I have not. There's helicopter footage showing this entire area, sir. I would represent to you most of the video indicates there are vast areas of barren land. Is it your testimony that this area was reclaimed or not reclaimed, sir? A In what area are you speaking of? Well, this permit right here. A Is there some reason that, that you are aggressively attacking me? Let me ask you a question. Do you think, were these people cited for failing to simultaneously reclaim? Did you cite them for that? A Did I cite them for what? Specifically did you cite them for failure?- well, let me ask you, did you cite them for failure to meet the required reclamation within the specified time of five hundred and forty days? A Yes. Did they do that? A Did they fail to do that? Yes, sir. A Yes. A few minutes ago you were praising their EAST KENTUCKY COURT REPORTING SERVICE eo.sox47e 61 reclamation effort, correct, sir? A Yes. What is contemporaneous reclamation? A Pardon? What is contemporaneous reclamation? Have you ever heard of that phrase? A Yes, I have. What do you understand it to be? A I understand it to be to reclaim in a contemporaneous manner. And you were out there inspecting once a month these, these increments? A Yes. And what percentage of this area would you say was reclaimed in the Harless Creek watershed? In the Harless, in the Harless Creek A area? Yes, sir. A In that area there were no final- reclamation. Well, what percentage was reclaimed or not reclaimed? A Fifteen to twenty percent maybe. Was reclaimed or not reclaimed? A Was reclaimed. RO.BOX476 52, 1 wa(no?cavueece2 eighty percent was not reclaimed, correct, sir? It was part of an active mining A Yes. operation. Okay. Was it all active mining? A In the Harless Creek area? Yes, sir. A It facil-~ some of it facilitated active mining, yes. What do you mean facilitated active mining? A Well, there was, there was roads and sediment ponds, diversion ditches. Do you?- did you view your job just philosophically in terms of'contemporaneous reclamation, as protecting the public? Was that part of your job? A Yes. Do you agree with me if a coal company does not do contemporaneous reclamation in close proximity to human beings, that creates a danger to the citizens below? A It could, yes. It could? Do you agree with the concept if you don't reclaim, when a heavy rain comes it endangers the citizens below? EAST KENTUCKY COURT REPORTING SERVICE eo.sox4?5 63. 1 ?800-649-9052 Pardon now? A Do you agree that one reason we have the contemporaneous reclamation regulation is for public safety and that if you don't reclaim and a heavy rain comes, it the citizens and their properties below? endangers A Not necessarily. You don?t believe in that concept? A Not necessarily, no. Do you view any of your duties in terms of making sure this area above where my clients lived was reclaimed as protecting them? A Yes. Or do you view your role as maybe protecting the coal companies? A No. Let's go back to why you left your employment. Were you asked to leave? A No, I was not. Were you reprimanded in any way? A Not at all. If I were to look at your personnel record, what would it show? A It would show nothing. Okay. So you just decided to resign six, seven weeks after this flood event, correct, sir? EAST KENTUCKY COURT REPORTING SERVICE Ro,sox47s 64. 600-649-9052 Yes. I had been debating it before that. Okay. Let's talk about this failing-? the?? let's look at, let's go back to that exhibit. Permitting expiration of the permit engaged in coal removal on a surface mining operation does not have a valid permit. How long did they not have a valid permit? A I don't really recall. But it had been expired for more than a year? A Somewhere in that area, yes. Okay. Is it your job, part of your duty to determine if a coal company has a valid permit? A Yes. Okay. And on eighteen and nineteen it did not have a valid permit? A Correct. And do you happen to know if the Cabinet notifies people when the permit expires? A Yes, they do, sir. Do you know if such, such a letter went from the Cabinet? A I don't recall. Did you-- would you have received a copy of that? A I think we got notification when they EAST KENTUCKY COURT REPORTING SERVICE ao.eoX4vs 65. 1-300-649-9052 10 11 12 sent those. I believe, I'm not sure. See, I don't understand that, Mr. Stapleton. As I understand from Mr. Blackburn's deposition, Cambrian was notified that their permit had expired. MS. MAINES: I'm going to object to the characterization of Mr. Blackburn's testimony, but go ahead. Well, he testified that there was actually a notification letter sent. Would you have gotten a copy of that? A I believe we did, but I'm not sure. I can?t, I can?t recall. Okay. Would you have gotten that letter before or after the flooding? It would have been before. A Specifically, do you know why the permit expired? A I think it was just an oversight on my part and Cambrian's. Okay. Did it have anything to do with the reclamation or failing to reclaim? A No. Okay. If you fail to reclaim an increment, is that a violation of your permit? . ?pun-u Inn/u Okay. Did that happen in this case? A Yes. Okay. How many increments did Cambrian fail to reclaim on the Harless Creek watershed? A I don?t remember. Why don?t you take a look at your document? Is it six? A This does not show me whether it's in Harless Creek or not. Okay. Well, do you happen to know? A No, I don't. Why don't you take a look at?? there's some pictures attached to your report, correct? Look at the first set of pictures. It indicates the inspector is Greg Stapleton. Is that you? A Yes. Okay. Tell me what, what that picture depicts? Looking at the top picture. A The photo depicts the area from left center of ridge where mining occurred after expiration of permit. Do you know if that picture was taken in the Harless Creek watershed? A I think part of it is and part of it's EAST KENTUCKY COURT RD. BOX 4?6 ALLEN. KENTUCKY 41601 NG SERVICE not. Okay. Well, it says it abuts?- permit 898-0619 abuts 898-0819. Do you know if that's in the Harless Creek watershed there? A I think it was. Part of it, yes. What does that picture depict, an active mine site or just some barren land? A This is-- this was actually an active mine site if I'm not mistaken. Okay. How about the picture down below, what does that show? The same page. A That depicts an area where mining has occurred after expiration on increment nineteen that abuts permit 898-0618. Okay. Is there any evidence of reclamation in those two pictures? A No. This one they had just finished mining on. Okay. And let?s go to the third page. There?s two pictures dated, photo date 8/3/2010, it says "photo depicting increments nineteen and twenty." Do you see that? A Yes. Okay. What does that picture depict, the top one? EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 1-800-549-9052 6 8 . You want-m you asked me to read the A description? Yes, sir. A "Photo depicts increments nineteen and twenty and the failure to complete reclamation within required time frame." Okay. Is that an active mine site, sir? A I really don't know where this one's at. I can?t remember. Does it look like it's been fully reclaimed? A No. I think you indicated earlier you thought that Cambrian had reclaimed maybe fifteen or twenty percent of the area? A I'm just guessing. I don't remember. Okay. Would you put this picture in the fifteen percent they reclaimed or the eighty percent or eighty?five percent they didn't reclaim? A Well, this, this part here, it had no reclamation on it, but I don't know where it lies, therefore I can't make a judgment. Then why did you take the picture? A I don't know that I actually take?? took these pictures. EAST KENTUCKY COURT REPORTING SERVICE Okay. It indicates with the pictures, it says inspector Greg Stapleton. Did you have something to do with it? A I was probably on, on-- I mean I was on the inspection, but Gene was also with me and he could have take?? taken these pictures. And what's the picture down below? Do you recognize where that is? A I can guess, yes. Okay. Take a guess. A I think this is out on the, the end of the top section. Okay. What's going on in that picture? A Failure to complete reclamation on this permit. Did you issue a citation for that? A Yes. To your knowledge, what's the status of the citations you issued? A I have no idea. Okay. As we sit here today do you know if increment eighteen has ever been reclaimed?- A No, I don't. Okay. You, you have been asked a lot of questions about what?s in the Harless Creek watershed, EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 1-800-649-9052 7 . what's not in the Harless Creek watershed. Is increment fifteen in the Harless Creek watershed? I have no idea. Increment sixteen? I have no idea. Eighteen? I don't recall. Nineteen? K) E) K) I think eighteen and nineteen might be in Harless Creek, but I really don't know. Do you remember where Jimmy and Wilma Oney lived? A No, I don't. Did you go up Harless Creek after the flood? A I actually never went up Harless Creek after the flood. Do you know how close the closest residents were to this mining operation? A I don't remember, no. Fairly close to human beings? Was the mining operation fairly close to where people lived? MS. MAINES: Objection to form. Go ahead. I A Some, some?- some areas, yeah. EAST KENTUCKY COURT SERVICE RO.BOX476 71. 1 600-649-9052 And how close was these permits to where people live, do you know? A I couldn't tell you exactly, no. Specifically, have you ever been up Harless Creek? Yes, I have. Have you ever been to the head of it? Yes, I have. were there some homes there? In the head? Yes, sir. No, there were not. (3 [3 K) E) 5 Okay. Have you ever been up the hollow called Harless Creek? A Yes, I have. Okay. Were there some homes the top of?_ Harless, of the hollow where?- ever been to the top of Harless Creek where the last homes are? A. Yes. Do you have any estimate how close that those homes were to the mining activities? A In that area, two thousand feet, I'm guessing. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 72, 1 Two thousand feet. That would be less than a mile? A Yes. Do you know what happened to those homes that were close? I know that they were flooded and-- A Yes . They flooded? How about washed away? A I don't know. Do you know as we sit here today, what was the status of the reclamation closest to these homes that were two thousand feet away? Were they fully reclaimed or were they not reclaimed at all, sir? A I can't recall. You can't? You were the inspector, correct? A Yes. As we sit here today, can you give us any idea in terms of the area closest to where my clients lived, you indicated you thought maybe they had reclaimed fifteen or twenty percent, was that part of the fifteen or twenty percent they reclaimed or were the areas closest to where my clients lived not reclaimed at all? A I, I really don't recall. As part of your inspection afterwards, did you get a look at an aerial View? EAST KENTUCKY COURT REPORTING SERVICE R0.BOX476 73, 1 -soo-s49-sosz did not. To this day have you ever looked at any of the aerial footage? A No, I have not. Why did you make the decision to cite them for failing to reclaim fifteen, sixteen, eighteen, nineteen, twenty, and twenty-two? MS. MAINES: I'm going to object. It doesn't say failing to reclaim. Well, why did you write permittee shall reclaim areas? Why did you cite them for that? A This was a, a joint effort and Mr. Blackburn instructed me to write this. Were you opposed to writing it or was it?? A No. Blackburn's idea? A No. You think they needed to reclaim those areas? A Some areas did need to be reclaimed, yes. Did you ever have any discussion with Mr. Blackburn about this, the fact that this permit had expired more than a year ago? A NO. EAST KENTUCKY COURT REPORTING SERVICE ao.eox476 74, 1 -soo-649-sosz Was there ever any discussion about how did this?- how did we allow this to happen? 5 K) K) [3 9 Cambrian. A After the fact, yes. Okay. What was the discussion? That, how did this happen and-? Yes, sir. ??it was just an oversight. Okay. An oversight by who? By myself, by Mr. Blackburn, and by What did Cambrian do wrong? They didn't renew it. Okay. Did you ever have any training on contemporaneous reclamation? A purpose of that? A A frame. Yes. Okay. What do you understand is the Contempor-? contemporaneous reclamation? Yes, sir. To reclaim within a, a certain time Do you have any philosophical views as to whether that should or should not be the law? A Philosophical views? Yes, sir. EAST KENTUCKY COURT REPORTING SERVICE so.sz476 ALLEN.KENTUCKY44601 75. 1 soc-649.9052 mean yes, it does need to be reclaimed in a, in a certain time frame. Do you think it needs to be reclaimed because it's just a technical requirement or is there?? or is there a public safety reason? A If you want to go into fine details, yeah, it could go into public safety. Why could it go into public safety? A. Well, I don't know. You're asking me to, to guess. Do you think that failing to reclaim increases water flow after a rain event? A Yes, but you also have sediment structures and diversions to handle that water. So do you think it's acceptable not to reclaim if you have sediment structures? A I didn't say that. Let me ask you about-? explain the difference to me between permit number 0619 and 0819. They're, they're both Cambrian, correct? A Correct. Okay. Do you know and I-- they, they go through different areas of land, correct? A Correct. Do you know which is closer to the EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 75, 1-500-649-9052 Harless Creek watershed? A 0619. Okay. Now 0619, that?s the one we talked about and I think you said they reclaimed, I don't want to put words in your mouth, fifteen, twenty percent, is that what you said earlier? A Yes. I guessed at that, yes. Okay. In 0819, what was the?- how much was reclaimed there, do you know? A 0819? Yes, sir. A That was a new permit. I don't think there was anything reclaimed. Okay. When you say new, was there anything disturbed on 08? A Yes. Okay. What was disturbed? A It was, it was a small amount. I really don't recall exactly what it was. Okay. In looking at 0819~? do you have that in front of you, sir? MS. MAINES: Have what in front of him? MR . PILLERSDORF The 08 19 . MS. MAINES: 0819 is the permit. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 16006499052 7 7 Well, did you write a violation to 0819 on 8/3/2010? MS. MAINES: What's the Non- Compliance number? MR. PILLERSDORF: Non?Compliance number. MS. MAINES: 2478? Yeah. 53?2478, have you got that in front of you? A No, I don't. MR. PILLERSDORF: DO you have a copy for him? Do you have an extra copy? MS. MAINES: He can look at mine as long as I get it back. Did you write that Non?Compliance? A Yes. And what's that Non?Compliance about? A Permittee/operator has failed to pass all surface drains through approved sediment control. Breaches within the berm of and allowed water to leave permitted area without passing through approved sediment control. Okay. MS. MAINES: I just want to note that he's already testified this was not in the Harless EAST KENTUCKY COURT REPORTING SERVICE H0.BOX476 73, 1-800-649-9052 Creek watershed. Now I want to ask you about the pictures. Where, where was this area? A This is on the back side of 0819 if my memory serves me right. This one adjoins 0619, doesn?t it? A Yes, it does. Okay. If I understand, in this permit there were zero areas, zero amount reclaimed, correct, zero acres? A Yes. The best that I remember. Let me see if I understand this. Cambrian had three permits near Harless Creek, correct? A Yes. Okay. And the area most proximate or closest to where the flood damage occurred on Harless Creek was permit 0619? A Yes. Okay. And as we sit here today, can you tell me which increment is closest to Harless Creek where my clients lived? A No, I cannot. And the last inspection you made prior to the Harless Creek flood event was when? Was it a day before, a week before, a year before? EAST KENTUCKY COURT REPORTING SERVICE eo.sz476 79 have no idea. Well, would it have been months or years? A It would have been months, I mean a month What's a pro?enforcement notice? A A pre-enforcement? I have no idea. The normal procedure when a permit expires, do you get-? does a coal company get a notice before it expires or after it expires or both? A Before. Before it expires? A I think now. I'm not sure exactly what you're asking. I may be mistaken, but I think Mr. Blackburn told us they actually got a notice after it expired as well. MS. MAINES: I object. Are you aware of any of those notices before, during, or after the permit expires? A I really don't-- I really don't know what kind of-- what the pro-enforcement notice is. Okay. And as I understand it, the reason the permit expires is, you have an agreement that you must reclaim within five hundred and forty days, is that correct? EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 30. 1 soc-5499052 Yes. Okay. And they didn't reclaim within the five hundred and forty days, did they? A. No. Is that the reason the permit expired? A No. Okay. All right. Then explain to me why, is there a different violation for not reclaiming within the five hundred and forty days? Well, if you don't reclaim it within five hundred and forty days, what do you cite them for? A Failure to, to renew the permit. To?? mining without a permit, if you're not?? you don't renew it. Now listen. You may have misunderstood my question. If you don't release?- was Cambrian under an obligation on these permits to reclaim within five hundred and forty days, sir? A Yes, they was. Okay. Did they do that? A No. Okay. On how many different permits did they fail to reclaim within five hundred and forty days? On how many different increments did they fail to reclaim within five hundred and forty days? EAST KENTUCKY COURT REPORTING RO.BOX476 ALLEN.KENTUCKY44601 31. memmeeoma Whatever is listed here. Six? I think that's what it was. (3 (3 Okay. And the mechanism, if you fail to reclaim within five hundred and forty days, does that result in you being cited for failing to reclaim or does that result in you actually losing your permit? A I don't remember. Okay. Isn't it true you actually also lose your permit? You also lose your permit if you don't reclaim within the time period, isn't that true, sir? A I think so. Well, you?ve been doing this for twenty years, right? A I've been out of it for two, yeah. Okay. Do you recall why you would cite someone for mining without a permit? A Do I recall why? Yes, sir. A It's part of the law. Okay. In this particular case, isn't it true the reason they lost their permit was they failed to reclaim within the five hundred and forty days, correct, sir? A They had let their permit expire, yes. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 32. 1-300-549-9052 And actually their permit expired what, a year and a half before this flood event? A Yes. And your testimony is on the day you heard about the Harless Creek flood, you were not aware that?e that they had these issues about their permit expiring? A Correct. MR. PILLERSDORF: Okay. That's all. RE-DIRECT EXAMINATION 33 MS. MAINES: When a permit is issued, it has an expiration date, correct? A Correct. And that expiration date is a date by which, excuse me, you need to renew if you're planning to renew, correct? A Correct. The expiration date on this permit was January 22nd, 2009, correct? A Yes. EAST KENTUCKY COURT REPORTING SERVICE HO, BOX 476 ALLEN. KENTUCKY 41601 no That's the date that would have been set at the time this permit was granted? A Yes. Okay. So if you, I'm not and I don't want to suggest that this is what occurred, but if you fail to comply with some portion of your permit and you get a Non-Compliance for that, that does not automatically result in you losing your permit, does it? A No. Okay. Before a coal company is going to lose its permit, there has to be some significant enforcement action? A Correct. Okay. Even if there is some sort of imminent danger order posed or, or issued, the mine might get shut down temporarily, but the permit is not pulled because of just the IDCO, correct? A Correct. - It takes a lot more before a permit would actually be pulled or removed, correct? A Yes. In this instance, the Non?Compliance for the permit having expired, didn't that just relate to the fact that the permit's given original expiration date had come and gone? EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 34, 1 -aoo-64s-9052 Yes. Okay. So it wasn't that Cambrian forcibly had its permit removed or triggered some kind of statutory provision removing a statute because you listed the Non-Compliance on the reclamation? A Right . Okay. Now a couple of times it?s been said about having to reclaim within five hundred and forty days, and I just want to be clear on the record because it's never been said, reclaim within five hundred and forty days of what? I mean what starts the five hundred and forty days? A Initial disturbance in that area. Initial disturbance? Okay. And that is, that five hundred and forty days that was granted Cambrian under 0619 permit, that was a variance from the statutory provision, correct? A Correct. Okay. And variances on the time frame are frequently given based on any number of things? A Yes. Okay. And it's the state that makes the decision whether or not that variance is going to be given, correct? A Correct. EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 35, 143006499052 10 11 12 13 14 ?15Okay. When the permit technically expires because it's reached its original expiration date, are all the variances eliminated, and does the original law as written of why? A Could you say that one more time? I'm sorry. Yes. You're given some kind of variance on a permit-- A Yes. -?on a time frame. The permit expires like it did in this case because for some reason it just wasn?t renewed. A Right. Does that eradicate those variances such as the original time frame and the law required, if you know? A I, I really don?t remember. Okay. The?? in this particular instance in those increments, what?? what type of mining was going on in that area? What was the disturbance? What type of mining was there? On the increments that were cited? A Yes, sir. A On those, those increments, to the best I recall, eighteen and nineteen, they were?? they had an EAST KENTUCKY COURT REPORTING SERVICE ao.sox47s 35_ 1?a}m??m52 active road. Okay. A And of course, there were sediment ponds. And is there anything else in those two increments? A Eighteen or nineteen one, might have-- might have been just one area. Let's see if I can?? this area right here. Which is hard to see, the photograph you're looking at there. A Yes . All right. Let me ask you this. If the permit?- and we discussed this earlier, when one's permit expires such that it's not intended to be renewed, reclamation is supposed to be completed? A Yes. Okay. Because this permit had expired and because reclamation had not been completed, they got the second part of the Non-Compliance, correct? A Right. If?~ was 0619 in compliance with contemporaneous reclamation had the permit not expired? A Yes. Okay. You were asked a lot of questions about whether any portion of 0619 was reclaimed and why it EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 37, 1soosnnx52 might not have been. It would have to be anticipated during the period of active mining that there are going to be areas of unreclaimed land, correct? A Correct. During the active phase, while you're still removing the coal, it's not going to be going through reclamation, correct? A Correct. Which is anticipated, provided for, and allowed for in the regulations? A Correct. Okay. Now some of the photographs that you looked at on Non~Compliance 2479, the first photograph that says "photo depicts the area from left center of ridge where mining occurred after expiration of permit," in the photo below that we see a road in these pictures, don't we? A Yes. Okay. So that was the mine road that they were using to get around portions of the permit? A Correct. So they're not going to be reclaiming that road while they?re still using it to get around the permit? A Right. And that's appropriate? EAST KENTUCKY COURT REPORTING SERVICE RD.BOX476 as. 1 eon-549.9052 Yes. Considering the stage of mining that 0619 was in, was it inappropriate or wrong or in violation of the law for only twenty percent of it to be in a reclaimed state? A No. When I said fifteen to twenty percent, part of that is-? has been reclaimed, but not final reclamation. Okay. And, and that's how the process goes, is that right? A Correct. Let me ask you, if 0619 had been timely renewed, would anything have?- have changed in terms of what was allowed under the permit in terms of the mode or manner Of-- of mining? A No, I don't think so. Okay. And so if the permit had been renewed, Cambrian would have gone on and did exactly what apparently it did do when it didn't realize the permit expired? A Correct. Okay. So there was no difference in, in what took place on that mine, just that the permit technically had hit its expiration date? A Correct. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 89. 1-800?649-9052 All right. The Non-Compliance relating to that where it says "failed to achieve required reclamation within time frame," it's been suggested that that means one, Cambrian failed to do any reclamation at all. Is that what you meant? A No. Okay. Is that time frame in that citation linked to the fact that the permit had hit its original expiration date? A Yes . Okay. You were asked some questions about knowing where various increments and such things were. Would it be fair to say that you would be more familiar with where4? and I obviously understanding you've been retired now almost two years, more familiar with where given sediment structures and hollow fills were and those numbers as opposed to increment numbers? A Yes. Okay. The structures on a given surface mine are identified by like 38-39 that we've been talking about, correct? A Correct. So structures are not identified on a mine site by increments? A No. EAST KENTUCKY COURT REPORTING SERVICE EO.EOX476 90, Okay. Those increments refer to how the mine has been divided up for purposes of bond release, or obtaining bond and then bond release? A Correct. All right. Part of the reclamation process obviously involves mulching, seeding, those types of things? A Yes . Okay. In a rain event such as the one on July 17th, 2b10, is it possible that type of beginning reclamation is washed away and has to be redone? A Yes. It-? I mean it could happen, yes- Okay. The fact that some of that may not have been-- early stages of reclamation may not have seen post flooding, doesn't mean they weren't there when the rain came down, does it? A Correct. Okay. You mentioned a minute ago that during the active phase of mining, because of the bare land, that?s why sediment structures and diversions are required to be put in place to handle the water, is that correct? A Yes. All right. In your opinion as a mine inspector with twenty?two years experience and based on EAST KENTUCKY COURT REPORTING SERVICE ao.sox47e 91. 1 Boo-6499052 your inspection of these Cambrian permits in the Harless Creek watershed after the July 17th, 2010 flood, did the sediment structures and diversions handle this rain event? A Yes. For the most part they did. And again, considering the amount of rain, were you pleased or displeased with how this permit held up? A I was pleased. Okay. Did it hold up better or worse than other permits you looked at? A It held up better than some. MS. MAINES: Okay. I tell you what, if we can I'd like to take a break for just a moment. Go off the record. VIDEOGRAPHER: Off the record, eleven forty-four a.m. Back on the record, eleven fifty? five a.m. Mr. Stapleton, I want to again look very quickly at some of these pictures that were attached to your Non?Compliance 53~2479 on permit 0619. There was some discussion about backfill and such shown in these photographs. And there is some backfill in these photographs, correct? A Yes. Where we see the backfill in these eo.eox47s 92. photographs, those areas were intended to store the backfill actually for the purposes of putting this area back the way it used to be, isn't that right? A Correct . Okay. So you would expect and intend for backfill to be put in those areas as placed in order to put the area back the way it used to be? A Correct. Okay. A That's, that's what I meant when I said it was partially reclaimed, but not final reclamation. Okay. So the mere fact that we don't see vegetation and trees, or what have you, growing on the mining area does not mean that the reclamation process has not begun? A Correct. Okay. Part of the reclamation process is putting the contours back as best as possible to their original contour, correct? A Correct. And to do that you're going to have to put material and backfill material in to recreate those contours, aren't you? A Yes. And that is part of the reclamation EAST KENTUCKY COURT REPORTING SERVICE eo.sz47e 93, Lsoos4esosz process? A Yes, it is. Okay. And that has to occur and be stabilized before you can begin the vegetation process? A Yes. Okay. And so, therefore, it would not?? I guess what I want to ask, is you would not expect, at any given time during active mining, to go to a surface mine and see a whole lot of vegetation, would you? A If, if?- 0n the active part. A On the active parts, no. No? And once the active is completed, you're going to begin restoring the contour, correct? A Correct. And then you're going to vegetate it? A Right. Okay. And along this area, obviously we see a road in all those photographs, that's going to be one of the last areas that's restored, is it not? A Correct. Okay. Otherwise they wouldn't have access to the other areas, would they? A Right. Okay. And during this part of the EAST KENTUCKY COURT REPORTING SERVICE RO.BDX476 94, 1 soo-sas-sosz 4. fit-T reclamation process where you have these it is backfill and the contours being recreated, because have bare land or nonvegetated land,r that 5 why you of diversions and sediment structures to control the flow water? A Correct. Okay. So even during the period of time where there is bare land or backfill areas, steps are and '3 have to be taken to control how the water flows. A Correct . Okay. And was that done on this permit? A Yes . MS. MAINES: Okay. Sir, I think that's all the questions I have. Thank you. RE - CROSS EXAMINATION BY MR. PILLERSDORF: Just very briefly, Mr. Stapleton. I asked you a little while ago about some testimony given by Mr. Blackburn about whether or not Cambrian had prior notice that the permit had expired. I think on pages a hundred and a hundred and one of Mr. Blackburn's deposition, let me read this to you and I will have a EAST KENTUCKY COURT REPORTING SERVICE P.O. Box 476 ALLEN, KENTUCKY 41601 1 600-649-9052 95. follow?up question. "Okay; And apparently, for whatever reason, the state hadn't caught that the permit had expired prior to the time?" Mr. Blackburn said "no, they hadn?t been given a PP statement. And what is a FP statement? A preventative enforcement statement." What is an FP statement, sir? A It is a notice that, that you need to do something. Okay. The way the bureaucracy of the Cabinet works, would you have been given a copy of that as the inspector? A Would I have been? Provided a copy of that FP statement? A No. You would, you would not have been notified? A No. So your testimony is that you're the inspector on the job, according to Mr. Blackburn they're sent a preventative enforcement statement and they don?t notify the inspector? A Preventative enforcement statement is something that the inspector does. Okay. Do you know what Mr. Blackburn's talking about when he said they had been given a FP EAST KENTUCKY COURT REPORTING SERVICE PO. BOX 476 ALLEN. KENTUCKY 41501 or: statement? He's talking about the, the mining without a permit that you eventually cited them for? A Yes. It's?? to my recollection, recollection, the notice that they send when a permit is about to expire is not called a preventative enforcement statement. Okay. What is the notice they get when their permit is about to expire? A I don't remember exactly what it's called. So is it your testimony they actually get that before the permit expires? A Yes. I think it's practice that they, they get that. Okay. Do you get a copy? A I think so, but I can't remember for sure. Sometimes I think we did and sometimes I think we didn't. Okay. You were just asked a number of questions by Ms. Maines suggesting that perhaps they did reclamation, but the flood waters concealed the fact that reclamation was done. Was that just your testimony? A No. it was not. I said it could have. She asked if they had seeded and top soiled, could the rain have washed evidence of that away. Yes, it could have I EAST KENTUCKY COURT REPORTING SERVICE FLO. BOX 476 said. Do you know? A Do I know if it did? No, I don't know. They had it seed?- I know they had seeded one hollow fill and they had to rework it and, and reseed it, yes. What was the status of the reclamation the last time you were up there, if you remember? A What was the status? Yes, sir. A They were-- it was ongoing reclamation work, but it was not final reclamation. You were asked the question if you attended any of these public meetings. Do you have any knowledge of what was said at those public meetings? A No, I don?t. I was not there. Do you recall anything in the media, what was said about the way you did your job? A No, I do not. MR. PILLERSDORF: That all . RE-DIRECT EXAMINATION BY MS. MAINES: Mr. Stapleton, just very quickly. The notices that are supposed to be sent to a mining company EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 9 8 1 soc-5499052 reminding them that their expiration date or notifying them of their expiration date, are those sent from the Division of Permits or the Division of Enforcement? If you know. A I really don't know. Okay. The inspector does not send them? A The inspector does not send those, no. Do you have any knowledge, one way or the other, of whether or not such letter on 0619 was actually issued to Cambrian or whether Cambrian actually received it? A I do not know, no. Okay. Have you ever seen such a letter that you can recall? A Not that I can recall. Okay. Are you aware of any other permits you have overseen or been responsible for where the permit has also expired because it just failed to get renewed for some reason? A Yes. Typically what happens when that occurs? How are those handled? A A notice of Non?Compliance is issued. And as soon as they get the permit up and running again or renewed, they?re good to go? A Yes. EAST KENTUCKY COURT REPORTING SERVICE eo.sz4rs ALLEN.KENTUCKY44601 99 1 accede-9052 Okay. So just what, exactly what happened here? You left? I left. I really don't know. A Okay. So it?s not unheard of for this to have occurred? A Right. Okay. A There have been other instances, is what I'm trying to say. Instances?- A That's what I was trying to say. Okay. During the twenty-two years that you were a mining inspector charged with enforcing the mining laws of the state, did you take your job seriously? A Yes, I did. And did you try to enforce the laws upon the permits that you inspected to the best of your ability? A Yes, I did. Okay. Did you make a practice or habit of allowing mining companies to slide and get away with things? A No, I did not. Do you feel that the inspections that you conducted after the flooding of July 17, 2010, that you employed your normal practices of trying to do your job to EAST KENTUCKY COURT REPORTING SERVICE eo.sox47e 1 800-649-9052 1 0 0 the beat of Your ability as it's outlined in the mining laws and regulations? A Yes. MS. MAINES: Okay. That's all the questions I have. MR. PILLERSDORF: We're done. VIDEOGRAPHER: End of deposition, twelve oh four p.m. WHEREUPON, the Deposition of Greg Stapleton was concluded. EAST KENTUCKY COURT REPORTING SERVICE RO.BOX476 - ?25_ COMMONWEALTH OF KENTUCKY COUNTY OF FLOYD I, ROSE M. LOVELY, a Notary Public within and for the state at large, do hereby certify that the foregoing deposition of Greg Stapleton was taken at the time and place and for the purpose in the caption stated; that the witness was first placed under oath; that the deposition was reduced to shorthand writing and at the same time electronically recorded; that the foregoing is a full, true and correct transcript of the said deposition so given; that there was no request that the witness read and sign the deposition; that the appearances were as stated in the caption. I further certify that my commission as Notary Public will expire October 12, 2013. Given under my hand, this 5th day of February, 2012. aim, 519,119,; LOVELY NOTARY PUBLIC EAST KENTUCKY COURT REPORTING SERVICE no.30x475 102. Lsooe49eosz