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JAMES A. BECKWITH <br />LETTER TO JAMES R. STARK, DRMS / COMMENTS TO PROPOSED DECISION ON SNOWCAP REPAIR PLAN / PG. 10 <br />Snowcap has never investigated these conditions: though it has had direct knowledge of <br />their existence. DRMS has never compelled Snowcap to investigate and repair these conditions: <br />though DRMS has had direct and personal knowledge of the sinkholes and depressions having <br />visited these other lands in the company of Mr. Rudy Fontanari. <br />Thus, Fontanari and Carey have not waived any right to make claims upon Snowcap (or <br />DRMS under statutory authority) for repair of their lands. And, the argument that such a waiver <br />existed is facile and spurious. Snowcap and DRMS made the agreement, intending to benefit <br />Fontanari and Carey. Fontanari and Carey are merely seeking enforcement of a new and <br />independent agreement by Snowcap to confer a benefit upon them. <br />Conclusion <br />In the ultimate analysis, Snowcap's Repair Plan is inconclusive, unsupported by the <br />physical evidence and far too small in scope to address the subsidences already caused by room <br />and pillar collapse and which will be caused in the future. For these reasons, DRMS must reject <br />the Snowcap Repair Plan: holding Snowcap to the full extent of its statutory and common law <br />liability to correct and resolve the landowner's loss of ability to irrigate surface crops. In its <br />place, DRMS must accept and apply the alternative Fontanari Repair Plan. <br />DEMAND FOR HEARING <br />In accordance with Rule 2.08.04(6)(b)(iii), Fontanari herewith demands an evidentiary <br />hearing on all factual issues involved in the Snowcap Repair Plan, including the related cost <br />estimate and construction time line plans submitted by Snowcap Coal Company. As described in <br />its Comments above, the issues to be heard and resolved by hearing include, but are not limited <br />to, the following: <br />1. All factual issues raised, discussed and identified by Fontanari in its Comments to <br />Report of Investigation and its Response to Snowcap Repair Plan, and its alternative Fontanari <br />Repair Plan previously filed with and receipted by DRMS. <br />2. Whether the ERT procedures employed by Fugro Consultants in April and <br />August, 2016, produced results that were reliable and consistent as to the presence and location <br />of sub -surface anomalies in Fontanari Tract #71. <br />3. Whether the testing procedures (including dumping of gallons of water) employed <br />by Snowcap Coal in April and August, 2016, established the absence of a hydrologic connection <br />between the ferrel ditch sinkhole, the air ventilation shaft, and horizontal sub -surface anomalies <br />present in Fontanari Tract #71. <br />4. Whether, in August, 2016, Snowcap agents dumped 2,000 gallons of water down <br />the air ventilation shaft or down some other, unrelated hole in the ground on Fontanari Tract #71. <br />