1993-10-28_GENERAL DOCUMENTS - C1981017

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winter (1 Tr. Stevens, 54). Significant snow clearing, up to 7 to 8 feet in depth (3 Tr. Jones, 42; see MCR Exhibit 17 -A, photo of pond access road, witness Jones circled), was required to gain access to the ponds because the road to the ponds was not kept open in winter (Tr. Stevens, 56; 3 Tr. Jones, 41). Snow removal from the access road and dewintering the dragline (3 Tr. Jones, 50) began Friday, February 3, 1989 (id. 49). The roadway was cleared of snow using a 980 - Caterpillar loader with a 10 -yard bucket (id. 50). The magnitude of snowfall and opening of this road caused runoff; water from melting snow is apparent in the photograph depicting MCR witness Jones. AVALANCHE An avalanche occurred and ran into the uppermost pond of Outfall No. 016. The avalanche also contributed to the adverse discharge from the ponds. The fact of an avalanche was disputed by WQCD. However, WQCD's strongest evidence was that none of its witnesses noticed or saw evidence of the avalanche (1 Tr. Vann, 242). There is no evidence that any of these witnesses were looking for an avalanche, although MLRD witness Anthony Waldron observed Mid - Continent personnel shooting avalanches for 40 minutes to an hour in the 1, 2 [mine] portal area (1 Tr. Waldron, 64 -65). On February 23, 1989 when WQCD witness Jess Vann was at the Outfall No. 016 ponds for the second time, the uppermost pond (Pond No. 1) was being cleaned 14 The roadway that was opened is depicted on Brief Exhibit -1. It is labeled "Access Road" and begins at the "Haul Road" and runs along the north side of the "Rock Tunnels Refuse Pile" and the Outfall No. 016 Ponds. The Outfall No. 016 ponds are identified by a call -out and each is identified, respectively, as "Pond #1 ", the uppermost pond, "Pond #2 ", the middle pond, and "Pond #3 ", the lowest pond. is MCR Exhibit 17 -A; 3 Tr. Jones, 41-42. Mid - Continent Answer Brief 9 Appeal No. 93 CA 297