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• MASSEY SEMEN~F SCHWARZ Br BAILEY, P. C. <br />Mr. Tom Schreiner <br />December 7, 2001 <br />Page 3 <br />Response <br />As provided in the Lidstone correspondence of December 4, 2001, use of <br />the term "flood control levee" in the restated request above is inaccurate. See <br />December 4, 2001 Lidstone Correspondence at 2. This term implies that the <br />area on the river bank at issue was a structure specifically engineered to manage <br />flood flows. The area that failed on May 5, 2001 was, in fact, a repaired or rebuilt <br />stream bank. It was not engineered when it was installed in the 1972-73 <br />timeframe. <br />MPC has no photographic or eyewitness evidence of the failure <br />mechanism on the river side of the bank in question as events transpired on May <br />5, 2001. The Prehearing Statement and Answer the company caused to be filed <br />with your office on October 15, 2001 indicates that certain participants in a <br />meeting that occurred on June 13, 2001 at the offices of the Urban Drainage and <br />Flood Control District ("UDFCD") claimed to have observed the failure of the river <br />bank on May 5, 2001. Although we understand that these individuals have <br />retracted their earlier statements, MPC will be in position, if required, at the <br />upcoming public hearing to put on witnesses who will testify as to the statements <br />made at the June 13 UDFCD meeting. <br />Item 6 <br />Please provide a discussion of the position Mobile Premix, legal or <br />otherwise, on responsibility for maintenance of the levee. This discussion <br />should address the ownership of the levee, the purpose of the levee, the <br />maintenance easement held by Urban Drainage and Flood Control <br />District, the conservation easement held by Adams County, and in <br />particular whether relocating the Bull Seep into close proximity to the <br />inboard of the levee, in violation of the Mined Land Reclamation Permit, <br />Mobile Premix incurred a de facto responsibility to maintain the levee. <br />Response <br />Again, as provided in the Lidstone correspondence of December 4, 2001, <br />use of the term "flood control levee" in the restated request above is inaccurate. <br />See December 4, 2001 Lidstone Correspondence at 2. This term implies that the <br />area on the river bank at issue was an engineered flood control structure. The <br />term further implies that, as an engineered structure, which it was not, the repair <br />would have been known to a property owner as a feature requiring ongoing <br />maintenance. <br />MPC's first involvement at the property was not until 1977 (see Prehearing <br />Statement at 1), or 4 to 5 years after repairs to the river bank were reportedly <br />