02-06 North American Emerald Mine File Pt. 14

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I

STATE OF NORTH
COUNTY OF ALEXANDER
WM. FRED WALKER, JR.,
Petitioner,
V.
N.C. DEPT. OF ENVIRONMENT
AND NATURAL RESOURCES,
Respondent.
RECE D
MAY 2 2QE15
Div of Land R.sourAD
IN THE OFFICE OF
NISTRATIVE HEARINGS
04-EHR-2162
PETITIONER'S RESPONSE TO
RESPONDENT'S SECOND SET OF
DISCOVERY REQUESTS
Petitioner Fred Walker ("Petitioner") objects to Respondent N.C. Dept. of Environment
and Natural Resources' ("Respondent") Second Set of Discovery Requests on the grounds that
Respondent failed to make the requests in a timely fashion, as they were served after the close of
discovery as established by the Court's Order dated March 30, 2005.
Petitioner objects to Respondent's Second Set of Discovery Requests to the extent they
are overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
Petitioner objects to Respondent's Second Set of Discovery Requests to the extent they
seek information protected by the attomey-client privilege and the doctrine preventing disclosure
of attorney -client work product.
Petitioner objects to the scope of Respondent's Second Set of Discovery Requests to the
extent they seek information not properly discoverable under the Federal Rules of Civil
Procedure.
C-93299M 18484.00011

Petitioner objects to the definitions and instructions contained in Respondent's Second
Set of Discovery Requests to the extent they seek to impose obligations other than those set forth
in the Federal Rules of Civil Procedure.
Without waiving these objections, Petitioner responds to the requests as follows:
INTERROGATORIES
1. With regard to your contention that the seismograph is improperly located, explain the
legal and factual basis for your contention (identifying facts, persons and documents as required
by the Definitions preceding this request).
RESPONSE: Mr. Rocky Roberts, a landowner in the community, informs Petitioner that.during
a visit to NAEM's mine, a representative of the company conducting the blasting showed him
the location of the seismograph. Mr. Michael Watkins, an expert in the region's geology,
indicates that at that location, the seismograph is set on a ridge of rock that is softer and more
shock-absorbant than the diorite rock into which the blasts are directed. As a result, the
seismograph reads vibrations significantly lower than those triggered in the diorite ridge that
runs through the adjoining properties. Only by placing the seismograph on the diorite itself will
NAEM achieve an accurate measure of the blasts' effects. Mr. Roberts' address is 1670 Church
Road, Hiddenite, North Carolina 28636. Mr. Watkins' address is 103 Emerald Hollow Mine
Road, Hiddenite, North Carolina 28636.
2. With regard to your contention that the bed of the creek was damaged by NAEM's
mining operations, explain the legal and factual basis for your contention (identifying facts,
persons and documents as required by the Definitions preceding this request).
C-932990V2 18484.00011

RESPONSE: See Petitioner's Response to Interrogatory 10 of Respondent's First Set of
Discovery Requests.
3. With regard to your contention that as a result of NAEM's mining operations, a landmark
is now gone, state the name and location of the landmark and explain the legal and factual basis
for your contention (identifying facts, persons and documents as required by the Definitions
preceding this request).
RESPONSE: See Petitioner's Response to Interrogatory 11 of Respondent's First Set of
Discovery Requests.
4. With regard to your contention that as a result of NAEM's mining operations adversely
affect the waters of the State, explain the legal and factual basis for your contention (identifying
facts, persons and documents as required by the Definitions preceding this request).
RESPONSE: The discovery by Petitioner and Dorothy Watkins of flyrock on the property
owned by Jack B. Wooten & Co. and located across the stream from the land subject to the
Permit leads to the reasonable inference that flyrock is falling into the stream in violation of
section 404 of the Clean Water Act, 33 U.S.C. §1344 and state regulations at 15A N.C.A.C. 2B
section .0200 and 15A N.C.A.C. 2A section .0500. This is a violation of section 3(A) of the
Permit.
C-932990V2 18484.00011

NAEM has constructed a non-public road a mere 27 feet from the stream in violation of
the requirement in Section 3(B) of the Permit that NAEM maintain a minimum 100-foot
undisturbed buffer between the affected land and any adjoining waterway. Furthermore, despite
the provision in Section 4(A) that obligates NAEM to establish ]mechanical barriers against
erosion, NAEM has taken no such precautions. Significant quantities of silt have been
discharged into the stream in violation of both the Permit and the Clean Water Act.
5. With regard to your contention that as a result of NAEM's mining operations have caused
structural damage to a nearby house, explain the legal and factual basis for your contention
(identifying facts, persons and documents as required by the Definitions preceding this request).
RESPONSE: NAEM's blasting under the Permit has caused substantial damage to the home
occupied by Dorothy Watkins and located on the property owned by D&M Emeralds, Inc. that
lies adjacent to the permitted area. The concrete -reinforced cinderblock walls of the home now
have numerous, sizable cracks due to the blasting that began in 2002. N.C.G.S. § 74-51(d)(4)
provides for permit denial where the operation constitutes a direct and substantial physical
hazard to a neighboring dwelling house. Petitioner produced copies of photographs responsive
to this request to Respondent on May 11, 2005. Petitioner is unaware of any additional
responsive documents.
6. With regard to your contention that as a result of NAEM's mining operations have
damaged wells that deliver potable groundwater, state the exact location of each well and explain
C-932990d218484.00011

the legal and factual basis for your contention (identifying facts, persons and documents as
required by the Definitions preceding this request).
RESPONSE: NAEM's blasting under the Permit has damaged at least three potable water wells
in the area. These wells provide the sole source of potable water for their respective owners, and
the damage from the blasting has polluted that water with large quantities of silt. The locations
of these wells are as follows:
(1) Jack B. Wooten & Co. property leased by Petitioner;
(2) D&M Emeralds, Inc. property adjacent to the land subject to the Permit;
(3) Property owned by Mr. Jerry Lackey along the Little South Yadkin River
approximately one-half to three-quarters of a mile from the land subject to the Permit;
Persons with knowledge of the damage to these wells include the following:
Petitioner
173 Riverside Farm Lane
Hiddenite, North Carolina 28636
Ms. Dorothy Watkins
P.O. Box 276
Hiddenite, North Carolina 28636
Mr. Jerry Lackey
760 Riverside Farm Lane
Hiddenite, North Carolina 28636
Mr. Jason Harris
877 Riverside Farm Lane
Hiddenite, North Carolina 28636
Mr. Randy Mitchell
851 Riverside Farm Lane
C-93299W 19484.00011

Hiddenite, North Carolina 28636
others not yet identified.
N.C.G.S. § 74-51(d)(2) provides for permit denial upon a finding that the operation will
have an undue adverse impact upon potable groundwater supplies.
7. With regard to your contention that the Permit sets the blasting levels too high, state the
blasting limits you contend are appropriate and explain the legal and factual basis for your
contention (identifying facts, persons and documents as required by the Definitions preceding
this request).
imspoNm As evidenced by the damage to an occupied residence and at least three potable
wells and the flyrock that is landing outside the boundaries of the Permit area the current
Petitioner does not currently have an opinion as to
blasting levels under the Permit are too high•
what specific lower blasting levels would be appropriate. It is Respondent's statutory
responsibility to investigate and determine the appropriateness of blasting levels before allowing
blasting under the Pert. See N.C. Gen. Stat. §§74-51(d) and (f). It is also Respondent's
statutory responsibility to investigate citizen complaints of serious property damage, flyrock, and
other issues that demonstrate the blasting levels under the Permit are too high prior to modifying
the permit. See N.C. Gen. Stat. §§74-51(d)(7) and 74-52(b). Respondent shouldetermine what
d
blasting levels are appropriate before allowing blasting under the Pemnt to continue.
g• State the exact location of your residence on the Jack B. Wooten & Co. property and
identify all lease agreements and other documents which support and document its location.
C-932990d218484.00011

I�
If
RES_ p_ ONS& See Petitioner's Response to Interrogatory 16 c
e to this request art a e
Documents responsive � �h P
Discovery Requests.
County Register of Deeds. Respondent has access to these documer
and Respondent may obtain these documents as easily as Petitioner..
1 .
9. Describe in detail your responsibilities as caretaker of the Ja
and identify any and all written agreements or other documents between you and Mr. Wooten
which define these responsibilities.
RESPONSE: Petitioner's primary function is to patrol the Jack B. Wooten & Co. and Betty
Wooten land to prevent damage to the land and trespassing by people looking to hunt, dig for
gemstones or cut timber. As Mr. Wooten rarely visits the property, Petitioner is responsible for
protecting the land and preserving the resources on it. Petitioner's agreement with Mr. Wooten
is oral, so there are no documents responsive to this request.
10. With respect to the geologist you or your attorneys expect to call as an expert witness at
the hearing to be held on this matter, please provide the following information:
(a) Identify each such person;
(b) State the person's job title and professional qualifications;
(c) Describe the subject matter of which the geologist is expected to testify;
(d) Describe the substance of the facts to which the geologist is expected to testify;
C-932990V2 18484.00011

(e) Identify any and all documents which contain information pertaining to the
geologist's testimony.
RESPONSE: See Petitioner's Response to Interrogatory 14 of Respondent's First Set of
Discovery Requests.
This j &! day of May, 2005.
111iam W. Toole .
N.C. Bar No. 16862
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: wtoole bh.com
J .'1 1 Revelle
N.C. Bar No. 32896
ROBINSON, BRADSHAW &'-IINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: irevelle- bh com
Attorneys for Petitioner Wm. Fred Walker, Jr.
C-932990W2 19494.00011

CERTIFICATE OF SERVICE
I hereby certify that the foregoing PETITIONER'S RESPONSE TO RESPONDENT'S
SECOND SET OF DISCOVERY REQUESTS has
been served unon each an of the parties to addressed is
action by depositing same in the United States mail, postage
n prepaid,
follows:
Anita LeVeaux
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
[e-mail]
-Fl-
This 16 day of May, 2005.
j&Pijbr F. Revelle
C-932990V2 18484.00011

STATE OF NORTH CAROLINA
COUNTY OF ALEXANDER
Wm Fred Walker, Jr.
Petitioner,
V.
N.C. Department of Environment and
Natural Resources,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04 EHR 2162
PETITIONER'S MEMORANDUM IN
OPPOSITION TO RESPONDENT'S
SECOND
MOTION TO DISMISS
Introduction
Petitioner Fred Walker leases and cares for real properties that have been damaged by
blasting allowed under a mining permit (the "Permit") issued improperly by the N.C. Department
of Environment and Natural Resources ("DENR" or "Respondent") to North American Emerald
Mines, Inc. ("NAEM"). DENR has not chosen to investigate the numerous citizen complaints
about property damage arising out to the Permit, or the numerous serious violations of the Permit
that have been documented. Nor has DENR cared to look into the documented failure to comply
with the mandatory public notice provisions of the enabling statute. Rather, DENR has chosen
to file three motions to dismiss and one motion for summary judgment. Petitioner Walker
hereby responds to the second Motion to Dismiss. If for no other reason than that Petitioner
Walker has a leasehold interest in property damaged under color of the Permit, not to mention
his interest in assuring compliance with statutory notice provisions, Mr. Walker is a "real party
in interest" entitled under N.C.R. Civ. P. 17(a) to maintain this action. DENR's second Motion
to Dismiss must fail.
C-93117M 18484,00011

Summary of the Facts
Petitioner Walker incorporates herein by reference his Memorandum in Opposition to
Respondent's [First] Motion to Dismiss previously filed with the OAH. Mr. Walker brings this
petition on account of excessive blasting levels allowed under the Permit and the failure of
DENR and NAEM to comply with the mandatory public notice provisions set out at N.C. Gen.
Stat. § 74-50(b2). Mr. Walker lives on property he leases from Jack B. Wooten & Co. that lies
adjacent to the land that is the subject of the Permit. As DENR knows from Mr. Walker's
discovery responses, which Respondent has acknowledged receiving, Mr. Walker is the tenant of
the Jack B. Wooten & Co. property. That real property, in which Petitioner has a leasehold
interest, has suffered damage due to blasting permitted by DENR. He is the authorized caretaker
of the Betty Wooten property that also adjoins the permitted area and walks that property
regularly.
Respondent is also a citizen interested in assuring procedural and substantive compliance
with the applicable statute and regulations. DENR issued the amended Permit on October 27,
2004, 11 days before the end of the 30-day notice period established in N.C. Gen. Stat. § 74-
50(b2). DENR issued the amended Permit even though NAEM's notice of proposed permit
amendment failed to meet the statutory obligation to inform citizens of their right to request a
public hearing. See attached copy of NAEM "Sample" notice letter discovered in Respondent's
Raleigh office.
Areument
North Carolina Rule of Civil Procedure 17(a) provides that "[e]very claim shall be
prosecuted in the name of the real party in interest." Under North Carolina law, "[a] real party in
C-931171v2 18484.00011 2

interest is a party who is benefited or injured by the judgment in the case." Choate Rental Co. v,
Justice, 211 N.C. 54, 188 S.E. 609 (1936). A party in interest may include a person in
possession of a mill and operating it who sues a railroad company for polluting the stream
feeding the mill, even though the person does not own the mill. See D.C. Salisbury v. Western
North Carolina Railroad Co., 1884 WL 2019 (N.C. 1884) (copy attached).
In this case, Petitioner seeks redress for serious harms he has suffered as a result of
DENR's improper issuance and subsequent modifications of the Permit. Petitioner leases, lives
and works on land adjacent to the permitted area. NAEM's blasting under the Permit has
damaged the well on which Petitioner relies as his only source of potable water, polluting the
water with silt. The blasting has thrown trespassing flyrock over 100 yards onto lands Petitioner
leases and supervises, thereby infringing on his leasehold rights and putting Petitioner at risk of
serious physical harm or death.
DENR issued the 2004 amendments to the Permit 11 days before the end of the
mandatory public notice period found at N.C. Gen. Stk. § 74-50(b2). DENR prematurely issued
the 2004 amendments to the Permit even though the notice failed to meet the mandatory
statutory requirements informing citizens of their right to request a public hearing. As a citizen,
Mr. Walker has the right to enforce laws that require DENR and NAEM to abide by the
procedural requirements of permit issuance.
A judgment in Mr. Walker's favor would benefit him significantly, protecting his rights
to potable water, a safe environment, and a state agency that abides by legal requirements and
does not act arbitrarily. Respondent's motion, like its previous one, implies that only "third
party" rights are at issue, but Petitioner's interest in the outcome of this case could not be more
personal. Just as Petitioner's action to protect his rights establishes him as an aggrieved person
C-93117M 18484.00011 3

under N.C. Gen. Stat. §15013-23, it also makes him a party in interest entitled to maintain this
challenge to the Permit.
C-931171v2 18484.00011 4

Conclusion
As the Petitioner is a "real party in interest" under N.C.R. Civ. P. 17(a) who seeks redress
for infringement of his legal rights as a result of DENR's issuance of the Permit, Petitioner
respectfully asks the OAH to deny DENR's Second Motion to Dismiss.
This � day of May, 2005.
William W. Toole
N.C. Bar No. 16862
ROBINSON, BRADSHAW & HBQSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: [e-mail]
bh.com
J-J- 4
Jennior F. Aevellb
N.C. Bar No. 32896
ROBINSON, BRADSHAW & HiNsoN, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: jrevellearbh.com
Attorneys for Petitioner Wm. Fred Walker, Jr.
C-931171v2 18484.00011

///'f�� �rize2cr�zrr VrrtF�irz�r/ �'U rrrFl
Producing the Finest Quality Emeralds & Gemstones in North America
October 19, 2004
NC Department of Environmental and Natural Resources
Land Quality Section
Division of Land Resources
1612 Mail Service Center
Raleigh, NC 27699-1612
ATTENTION: Ms. Judith A Wehner
Assistant State Mining Specialist
RE: Permit # 02-06
North American Emerald Mines
Alexander County
Yadkin River Basin
Dear Ms. Wehner:
W1 e a 1�0
CIJA 2I
Please -find enclosed a "sample" letter that was sent to the adjoining land
owners of our intent to increase the permitted acreage in accordance
with your recommendation.
I have also enclosed the "certified mail" receipts.
Please advise on any further actions required by us to secure the mining
modification.
Sincerely,
Ron Summers, President
North American Emerald Mines, Inc.
531 Duncan Lane ♦ Hiddenite, North Carolina 28636
Office: 828-635-8080 ♦ Fax: 828-635-%080

C/{'a�li�caa& I�zed
Producing the Finest Quality Emeralds & Gemstones in North America
Certified Mail
Return Receipt Requested
October 8, 2004
SAMPLE
RE: Permit No. 02-06
North American Emerald Mines, Inc.
Alexander County
Yadkin River Basin
Dear Mr. Brown:
This is to notify you that NAEM, Inc. has formally applied through the
North Carolina Department of Environment and Natural Resources in
Raleigh to increase the company's permitted mining acreage to
94.6 acres.
This is a strategic decision only that will facilitate the approval
process to secure the use of future land for mining purposes. At this
time we do not foresee any change in our current mining plans.
Sincerely,
J. Ronald Summers, President and CEO
North American Emerald Mines, Inc.
531 Duncan Lane 4 Hiddenite, North Carolina 28636

91 N.C.490
91 N.C. 490, 1884 WL 2019 (N.C.)
(Cite as; 1884 WL 2019 (N.C.))
C
Supreme Court of North Carolina.
D. C. SALISBURY
V.
WESTERN NORTH CAROLINA RAILROAD
COMPANY.
October Term, 1884.
West Headnotes
Parties (>�P3
2870 Most Cited Cases
One who is in possession of a mill, and who is
working it, may maintain an action against a railroad
company which so conducts its operations as to wash
mud down the stream to the injury of the mill.
Vendor and Purchaser G�218
400k218 Most Cited Cases
Where a mill is injured by the wrongful act of a
railroad company in constructing its railroad, the fact
that plaintiff was in possession and operating the mill
is prima facie evidence of such personal interest in its
operation as to support action for damages, though
before the injury occurred plaintiff had conveyed the
land, which was the mill site, to a trustee for the
benefit of his wife.
Waters and Water Courses �176
405kl76 Most Cited Cases
The possession and working of a mill by plaintiff,
without interference, after his conveyance of the land
on which was the mill site to a trustee for the benefit
of his wife, shows such a personal interest in its
operations as entitles him to maintain an action for
the damages he has sustained by the act of a railroad
company which has recklessly caused a large
quantity of mud to be washed down by the process of
sluicing, and deposited in the pond, lessening the
volume of water therein and diminishing its power.
*1 CIVIL ACTION for damages tried at Fall Term,
1884, of BURKE Superior Court, before Gilmer, J.
In deference to an intimation of the court that the
action could not be maintained, the plaintiff suffered
a nonsuit and appealed.
Messrs. P. J Sinclair and Batchelor- & Devereux, for
plaintiff.
Page I
Messrs. D. Schenck and Reade, Busbee & Busbee,
for defendant.
SMITH, C. J.
The plaintiff was in possession of a mill for grinding
wheat and corn, and had been since 1877, when it
was rebuilt, operating the same, on Mill creek, the
waters of which, raised by means of a dam, were
used as a motive force in propelling the machinery.
In 1879 he executed a deed conveying the tract of
land whereof the mill site and the area covered by the
pond formed part, to one John T. Reid in trust for his
wife Julia C., during her life and in remainder for
their son, with certain contingent limitations, not
needful to be specified, in the present opinion.
In the year 1882, the defendant company in the
repair of their road -bed, some several miles above, at
a place known as "Mud Cut," by the use of rubber
tubes in the process of sluicing, caused large
quantities of loose mud to be washed down which
passing into the creek were deposited in the pond,
lessening the volume of water therein, diminishing its
power, and obstructing the operations of the mill and
reducing its capacity to grind to a degree affecting its
profits.
The engineer in the service of the defendant
estimated that five acres, making a half million of
cubic yards, had been thus sluiced or carried away by
the current of moving water.
To recover compensation for the damage sustained
in running the mill, by reason of the large
accumulation of mud in the pond, the present action
is brought.
Much evidence was offered to show the necessity of
removing the mud and by the process of sluicing, as
the only available means of making the transit over
that part of the road permanent and safe.
The argument before us entered largely into the
question of the defendant's right under the charter to
do the work and maintain the road in proper repair,
without accountability at the common law for
consequential damages growing out of the exercise of
the right conferred in the charter. The subject is not
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

e .,
91 N.C. 490
91 N.C. 490, 1884 WL 2019 (N.C.)
(Cite as: 1884 WL 2019 (N.C.))
free from difficulty, but it is not presented in the
appeal, and we do not propose to depart from the
settled practice which confines our examination to
such matters of exception as appear in the record.
After the conclusion of the testimony and the
opposing counsel had been heard, the court intimated
that the plaintiff had no such estate or interest in the
land as enabled him to maintain the action, and
thereupon his counsel submitted to a judgment of
nonsuit and appealed.
The only inquiry then before us is as to the
sufficiency of the plaintiffs interest or property upon
the evidence to sustain his claim for damages
resulting from the interruptions in the operations of
the mill which he was running.
*2 The very statement of the ruling in this form
seems to convey convincing proof that it is
erroneous. The possession and working of the mill,
continued over a period of several years by the
plaintiff without interference from any one, in the
same manner after as before his conveyance of the
land, afford prima facie evidence of a personal and
direct interest in its operations, the impediment to
which produces a remedial injury. It is but a
reasonable inference from the plaintiffs possession
and use of the mill, that it was with the assent of the
trustee, and (in the absence of evidence of any
conditions or terms) on his own account and for his
individual benefit. If he was a mere servant or
managing agent for the owner of the property, some
proof of this relation should have been produced, for
it cannot be inferred from the mere fact that the title
was in another. Every person conducting a business is
presumed to do so on his own responsibility and for.
his own advantage.
The ruling of the judge assumes that the testimony
shall be taken in its aspects most favorable to the
plaintiff, and if the jury would be warranted in
finding that the plaintiff was operating the mill for
himself and receiving the profits, and these have been
cut short in consequence of the act of the defendant,
we can see no reason why he may not, if any one else
can, seek, through an action, compensation for the
damages he has himself sustained in conducting his
business.
The plaintiff however has not possession alone of the
mill, but, the jury may find upon the evidence, a
direct and important interest in its successful
operations; and certainly this was sufficient to enable
him, so far as this matter is concerned, to maintain
Page 2
his action.
But the court may have so adjuged on the ground
that compensation is due only to the owner of the
property, so that the result would transfer to the
company the easement or right to make this
disposition of the removed earth. This is a
misconception of the nature and purpose of this
action. It does not rest upon the idea of a right
acquired by the defendant by payment of
compensation to one who thus transfers it, but the
damages claimed are the measure of an injury done --
remuneration for a special wrongful act and
extending no further.
It is not material that the trustee may also sue, for
each may obtain redress for the injury to himsel% the
recovery by the plaintiff for his damages interposing
no obstacle to the recovery of such as may affect the
land as an inheritance. These demands are several
and distinct, and so may be the actions to enforce
them.
Again, the complaint charges that the act of the
defendant was unlawful and wilful, that is, that the
method adopted for the removal of the mud was
unnecessary and injurious, and evidence upon this
allegation was before the jury. We do not understand
the counsel for the defendant to deny, that, if the
power conferred in the charter was exercised
negligently and without a due regard to the interest of
others, and an injury was suffered in consequence,
the company would be exposed to an action for
redress in some form, it being an underlying
condition of the grant, to use the words of
PEARSON, J., in Meares v. Commissioners of
Wilmington. 9 Ired., 73, that "the work is done in a
proper manner." Still more strongly would be the
incurred liability for a wilful and reckless act
committed in the alleged exercise of the power.
*3 The effect of the action of the court is to
withdraw from the consideration of the jury the
evidence of the facts upon which the alleged wilful
conduct or negligence in the attempted use of the
delegated authority, is dependent.
But the pursuit of this inquiry would lead us into a
discussion not germane to the appeal, and we will
only repeat that upon the evidence it does not
affirmatively appear, that the plaintiff has no such
interest in the mill and its working as entitles him to
seek redress by action??
The non -suit must be set aside and a venire de novo
2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

91 N.C. 490
•91 N.C. 490, 1884 WL 2019 (N,C.)
(Cite as: 1884 WL 2019 (N.C.))
awarded, to which end let this be certified.
Error.
Venire de novo.
91 N.C. 490, 1884 WL 2019 (N.C.)
END OF DOCUMENT
CcJ 2005 Thonison/West. No Claim to Orig. U.S. Govt. Works.
Page 3

05/e12/2005 10:47 9197333407 OAH
n
STATE OF NORTH CAROLINA
OFFICE OF ADMINISTRATIVE HEARINGS
VAX COVER SHEET
TO: Anita LeVeaux [phone]
FROM: Christie Ford
DATE: May 2, 2005 TIME 10:35 AM
SUBJECT: Wm. Fred Walker, .Tr. v. NC DENA, 04 EHR 2162
COMMENTS,
Petitioner's Response to Motion to Dismiss
Administration Administrative Law Judges CHI Rights
9191733-2691 919\733-2694 9191733-0431
Fax:9t%733-3479 Fax:91%733-3407 F2x:919X733-4866
PAGE 01/14
Clerk's Olrce Ra1e3
919\7334926 919\733-2678
Fat: 919\733-3479 Fax;119M"462
6714 Mail Service Center. Raleigh, North Carolina 27699-6714
Capehart-Crocker House • 424 North Blount Street • Raleigh, North Carolina 27601-2817
An Equal Employment Opportunity Employer

65M212005 10:47 9197333407 OAH PA3E 02114
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF ALEXANDER ". U EHR 2162
Wm Fred Walker, Jr.
Petitioner,
V.
N.C. Depa><tment of Environment and
Natural Resources,
Respondent.
PETITIONER'S MEMORANDUM IN
OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS
Introduction
Petitioner Fred Walker leases and cares for real properties that bave been Ownaged by
blasting allowed under a mining permit (the "Permit") issued improperly by the N.C. Department
of Environment and Natural. Resources ("DENR" ar "Respondent") to North American Emerald
Mines, Inc. ("NAEM"). Surprisingly, DENR has chosen to address numerous citizen complaints
about the Permit through eftotts at dismissal on procedural grounds, rather than investigating the
substantive property damage and permit violations these complaints describe. As Petitioner
Walker has a leasehold interest in property that is damaged under color of the Permit, Mr.
Walker is an aggrieved person under N.C.G.S. §150B-2(6), for this and other reasons set fortb
herein, DENR s motion to dismiss must fail.
Summary of the Facts .
Fred Walker brings this petitionon account of excessive blasting levels allowed -under the
. Permit. Mr. Walker lives on property he leases from Jack B. Wooten & Co. This property lies
adjacent to the land that is the subject of the Permit. Blasting allowed by the Peu.nit has
damaged Mr. Walker's well, his only source of water, with, large amounts of silt. Blasting has
C-92989tv3 184R4.00K I

05/02/2005 10:47 9197333407 OAH PAGE 03/14
also damaged his neighbor's well and laa9 caused significant cracks to form in the foundation Of
that neighbor's house. As Mr Walker's sole source of income is a meager monthly disability
check from the Veteran's Administration, the damage to his well is a serious matter to him.
Fred Walker is the tenant of Jack B. Wooten & Co. land, and he is also the caretaker of
the Betty Wooten land. Both properties are adjacent to the permitted blasting area. White
performing his caretaking duties and inspecting his leasehold estate, he has discovered
significant quantities of flyrock, some pieces as large as 56 pounds, that the permitted blasting
cast more than 30"00 feet from the Permit boundary and onto the properties he leases and
cares for. This flying rock is not only trespassing and a Violation of § a(G) of the Permit, it is a
danger to M.T. Walker, the owners, tenants, and guests on the Betty Wooten and Jack B. Wooten
& Co. properties.
Notice and is of the permit was statutorily defective. NAEM sent notice of a.
proposed modification to, the Permit on October 8, 2004. DENR issued the permit on October
27, 2004, 11 days before the end of the 30-day notice period provided by N.C. Gen. Stat. § 74-
50(b2). The notice of pen -nit modification also failed to inform recipients of the opportunity to
request a public hearing as required by N.C. Gen. $tat. § 74-50(b2), An example of the defective
notice letter is attached as Exhibit A.
Other substantive issues abound_ NAEM has built a road within 27 feet of the stream in
violations of Pemvt § 3(B), which requires a minimum 100=Foot undisturbed buffer between the
affected land and the adjoining stream. Silt and, flyrock have been discb,arged into the stream in
violation of the Permit, $ 404 of the Clean Water Act, 33 U.S.C. §1344, and state regulations at
15A N.C.A.C. 213 section .0200 and 15A N.C.A.C. 2H section • ,0500, There are no silt fences
between the road and the stream as required by the Permit: A criminal background check
.. C•929991A 19494,00031 2

05/02/2005 10:47 S197333407 OAH PAGE 04/14
documents that the majority shareholder of NAEM has a long history of physical violence and
substance abuse dating from 1989, Indeed, he has offered to sell dynamite to neighbors for cash,
Yet, DENR has shown no concern about having issued this blasting Permit.
Mr, Walker, originally acting pro se, and other pro se petitioners filed petitions claiming
DENR set blasting levels in the Permit too high. These petitions raised serious substantive issues
that cried out for investigation. Instead, Respondent moved methodically to dismiss each
petition on procedural grounds alone, making no effort to investigate the very serious substantive
complaints in each petition of damage caused by the Permit's excessive blasting level.
By letter dated April 18, 2005, attached as Exhibit B, Petitioner Walker identified these
and other serious problems to DENR. Petitioner offered to postpone discovery in order to give
DENR an opportunity to conduct an investigation into these serious matters. Instead of acting to
ensure program integrity, DENR chose to bring this motion to dismiss.
Argument
As DENR knows from Mr. Walker's discovery responses, Mr. Walker is the tenant of the
Jack B. Wooten & Co. property adjoining the permitted area, That real property, in which
Petitioner has a leasehold interest, has suffered damage due to blasting permitted by DENR. He
is the authorized caretaker of the Betty Wooten property that also adjoins the permitted area and
walks that property .regularly. He is also a, citizen interested in assuring procedural and
substantive compliance with the applicable statute and regulations. Each of these circumstances
independently establish Mr. Walker as an "aggrieved person" with the standing to challenge the
Permit.
An aggrieved person is "any person ... directly or indirectly affected substantially in his
[] person, pmperty or employment by an administrative decision," N.C. Gen. Stat. §150B-2(6).
C-929RPTQ 18484.00011 3

05/02(2005 10:47 9197333407 DAH PACE 05/14
Aggrieved persons can include landowners, citizens of a nearby county, and even nonprofit
organizations whose members live near the site of the challenged action, where the claim is that
a petitioner would be adversely affected by "increased levels of water, air and noise pollution,"
"injury to historical sites," or "the disruption of existing communities and social intercourse and
patterns in the area." Orange County v. North Carolina. Dept. of Transportation, 46 N.C. App.
350, 360-61, 265 S.E.2d 890, 895-96 (1980) (challenge to interstate highway extension).
Aggrieved persons include competitors of permit applicants whose sole affected interest is an
"interest in the air resources of the State" and assuring compliance with the procedural
requirement of preparing an environmental impact statement. Empire Power Co. v. North
Carolina .Dept. of Environment. Health and Natural Resources, 112 N.C. App. 566, 571, 436
S.E.2d 594, 598 (1993), rev'd on other grounds, 337 N.C. 569, 590, 447 S.E.2d 768, reh'g
denied, 338 N.C. 314, 451 S.E.2d 634 (1994) (holding third -party `persons aggrieved" entitled to
coTitested case hearing). North Carolina courts .have specifically rejected Respondent's narrow
view that only adjoining landowners can be aggrieved persons, a view that DENR knows
through experience is incorrect_
North Carolina courts recognize that the rights an aggrieved person may seek to protect
are very broad.
The expression `person aggrieved' has no technical meaning- What it means
depends on the circumstances involved. it has been variously defined: [a]dversely
or injuriously affected; damnified, having a grievance, Having suffered a loss or
injury, or injured; [or] having cause for complaint. More specifically the word(a)
may be employed meaning adversely affected in respect of legal rights, or
suffering from an infiingement or denial of legal rights.
In re Halifax .taper Co., 259 N.C. 589, 595, 131 S.E.2d 441, 446 (1963) (internal citation
omitted)_ Without question, the damage to his leasehold rights that Petitioner Walker claims
establish him as an aggrieved person., Indeed, the "proceduraT injury" arising from the defective
C-929991v9 18484.00011 4

05/02/2005 10:47 9137333407 OAH PAGE 06/14
NAEM notice and DENR's premature issuance of the Permit is itself sufficient "injury in fact" to
support standing as an aggrieved party. Since Petitioner Walker has sufficient geographic nexus
to the permitted blasting that he "might be expected to suffer whatever environment
consequences" the Permit might impart, Empire Power, 338 N.C. at 590, 451 S.E.2d at 780.81,
citing Orange County, 45 N.C_ App. 360-362, 265 S.E.2d at 898-99, Petitioner Walker is a
"person aggrieved." See also Tennessee v, Environmental Management Comm,, 78 N.G. App,
763, 766-67, 338 S.E.2d 791, 783 (1986) (aggrieved person is one whose right to be heard has
been impaired by agency).
Respondent's emphasis on whether Petitioner owns the property disturbed by NAEM's
blasting is a distraction. Empire Power, Orange County, Tennessee and Halifax Paper each
make clear that the proper inquiry is whether DENWs actions have infringed upon any of
petitioner's legal rights. The only reasonable response to that inquiry is "yes". Petitioner leases,
lives and works on land adjacent to the permitted area. Be relies on a well located on this land as
his only source of potable water. NAEM's blasting under the Permit has damaged that well,
polluting the water with silt. The blasting has thrown trespassing flyroek onto the lands
Petitioner leases and supervises, thereby infringing on his leasehold rights and putting Petitioner
at risk of serious physical haritl or death. As a citizen, Mr. Walker has the right to enforce laws
prohibiting the filling of the stream with flyrock and sedimentation, and also those laws that
require DENR and NAEM to abide by the procedural requirements of pennit issuance. The
effects of NAa M's permitted blasting on Petitioner's legal rights and interests could hardly lie
more serious or more direct.
Despite Petitioner Walker's express discovery response to the contrary, Respondent
incorrectly claims that Petitioner "has no ... right to title" in the property he leases and on which
C-4P9g41-4118484.00011 - 5

05/02/2005 10:47 91,37333407 04H PAGE 07/14
he lives. Resp't Mot. ¶ 3. Petitioner has the legal status of a lessee. Even so Petitioner's rights
to potable water, a safe environment, and a state agency that abides by legal requirements exist
independently of the real property rights he possesses. Given the numerous legal rights that
Petitioner Walker asserts have been infringed by issuance of the Pemlit, Respondent's
i
implication that only "third.party" rights are at issue is plainly irrelevant. Petitioner's action to
protect rights that are very much his own establishes hi -in as an aggrieved person entitled to
maintain this challenge to the Permit.
Conclusion
As the Petitioner is an aggrieved person under N.C.C.S. §150B-2(6) who has suffered
direct and indirect infringement of his legal rights as a result of DENR's issuance of the Permit,
Petitioner respectfully asks the OAH to deny DENR's Motion to Dismiss.
This ae_tday of April, 2005.
William W. Toole
N.C. Bar No. 16862
ROBINSON, BPADSHAW &HINSON, P.A
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: wtoolc aabli.com
Ji 1/," -
.l ifcr _ Rew le
N.C. Bar No. 32996
1,013INSON, EkADSHAW & HINSON, P.A.
IQ 1 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: irevelleftbh.com
Attorneys for Petitioner Wm. Fred Walker, Jr.
C-924891Q 18484. 0011 6

bV02/2005 10:47 0137333407 OAH
CERTIFICATE OF SERVICE
PAuE 06!14
I hereby certify that the foregoing PETITIONER'S MEMORANDUM IN
OPPOSITION TO RESPONDENT'S MOTION TO DISMISS has been served upoiti each of
the parties to this action by depositing same in the United States mail, postage prepaid, in an
envelope(s) addressed as follows:
Anita LeVeawc
N.C. Deparbuent of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
[e-mail]
This 2g' ''day of April, 2005,
C•9298910 194K00n 11
J f F. Kevelle
7

OAH PAX 09.
..`.05E02/2005' 10:47 S197333407 EICiH1E3
r f'r t i/! ! j.�rr: � rrrY�� fi�r�rr�r✓ . r�l A/�.1
IN'w!1t, itl,,. lllr I ltn...7 (1nrt,�ltt !.Irlf!'a l;ir f 1:!'!lltf017YS 11! ilPt ;A .'lU't7ii'1
Car�tif�gd MLsiV
Rif rn Rn Reaueeted
r ,
pctoee� 8, 2004
Ms. Ctc`-jttie Watkins
D&rs Ern<.+ra�ps �r•r
P.0.6ax276
Hiddenite, NC 28636
RE: 'permit No.02-06
Nortn American Emerald Niinetl Inc.
Alexander County
Yadkin River Basin
Deor Ms. WoNins .
This is to noli`y you that NA:EN', Inc. has formally applied through the
North Carolina Department of Environment and Natural Resources in
Raleigh to increase th , company's permitted mining OMOOe to
9s.6 acres.
This is a strotegic decision only, that will focilitale the approval
Xolcss tc `-z Ur the use of tl_t� Ij� :r�ll(i for mining ntunc>SeS. Al this
time we cio not foresee any change in our current mining plans.
SinCerc!y,
J. Ronald SUrimers, Presir�ent and CEO
North.A.merican Emerald Mines, Inc.
I!:II Aul IM,4 11Mdt'P111' 4tl'!f1i,,rMI'm
r
i
R � '

OAH PAGE 10i14
05/02/2005 10:47 S107333407
kc)BINSON BRADSHAW & HINSION _-a
DIRECT DIAL: 704.377.6373
WILLIAM W. TOOLE DjnECT PAX: 704.373. 3973
CMARLOTrE OFFICE VIYOOLEUROW,COM
April 18, 2005
Via EMAIL
Ms. Anita LeVeaux
N.C. Department of Justice
Enviurounimtal Division
POOI Mail Service Center
Raleigh, NC 27699
RE: WM. 'Prod Walker, Jr. V. N.C. Dept. of Environment and Natural -Resources, Case
No. 04-EHR-2162;
Dear Anita:
Thank you for speaking with Jen Revelle and me last Wednesday. As we conveyed to
you during our conversation, a number of procedural and substantive defects within the North
American Emerald Mines C NAEM") permit require Investigation by DENR. There are also a
of the permit that suggest NAEM has a flagrant disregard fbf
number of serious violations
applicable law in its search for mineral deposits, and these violations would also seem to require
DENR investigation independent of this case. Because the motivation behind this petition is to
prevent further damage to homes and wells caused by blasting, however, we expect that the
parties could settle this case if DENR would modify NAEM's permit to lower the blasting levels
and adjust the position of the seismograph to ensure accurate readings.
procedural Defects
NAEM gave inadequate notice of the 2004 modification. NAEM's letter dated October
8, 2004 purporting to give this notice failed to include any reference to the affected parties'
statutory right to submit comments to DENR regarding the pending application. See attachod
example. DENR then issued the modification on October 27, 2004, a mere 19 days after the date
of NAEM Is notice letter. The 2004 modification was indisputably improper.
NAEM and DENR also failed to give adequate notice in 2002 when the permit was
modtfiM to allow blasting activities. Based upon these past failings and our discussions with
affected parties, we have every reason to believe that our review of DENR's file (which you
have tentatively scheduled for Friday, April 22, 2005) will reveal the original permit and its
subsequent amendments were issued improperly.
C_92R57,10 18484.60011
Artoraeys at Law
Charlotte Office: 101 North TryOh Street, Suite 1900, Charlotte, NC 28246 Ph! 704.377.2536 k'x: 704.379,4000
south Carolina Office: 140 East Main Street, Suite 420, P.O. Drawer 12070, Rock Hill, SC. 29731 Pb: 803.32512900 Tx; 803.325.2929

0502/2005 10:47 9197333407 OAH PAGE 11/14
Ms. Anita LeVesux
April 18, 2005
Page 2
Substantive Defects
NAEM's blasting has damaged at least three potable water wells in the area. These wells
provide the sole source of potable water for their respective owners, and the damage from the
blasting has polluted that water with large quantities of silt. N.C.Q.S. § 74-51(d)(2) provides for
permit denial upon a finding that the operation will have an undue adverse impact upon potable
groundwater supplies.
The blasting has caused substantial damage to the home of Dorothy Watkins, an
adjoining Iandowner. The concrete-reipforeed cinderblock walls now bave numerous, sizable
cracks due to the blasting that began in 2002. N.C.G_$. § 74-51(d)(4) provides for permit denial
where the operation constitutes a direct and substantial physical hazard to a neighboring dwelling
house.
Blasting has thrown flyrock, some pieces as large as 56 pounds, from the permitted area
onto land that is not covered by the permit. Not only is this a violation of the permit (-,Is
described more fully below), but it is a danger to imooent people. Without question, the blasting
levels allowed by the permit are too high and constitute a substantial defect in the permit
Moreover, a criminal background check on James Icing Hill, the majority owner of
NAEM, reveals a long history of violence and alcohol -related charges. Mr. Hill clearly lacks the
ability to use sound judgment in employing explosives under the permit, making issuance of the
permit to NAEM unwise at best.
Permit Vielatimlos
DENR's statutory' mandate requires it to investigate ongoing violations by NAEM.
During our recent visit to the area, we witnessed the presence of extensive flyrock on the Betty
Wooten property adjacent to the permitted area and the Jack B. Wooten & Co. property that lizs
across the stream. This flyrock is more than 300-400 feet from the boundary of the permitted
area. Local residents have documented this problem for some time and have observed pieces of
flyrock as large as 56 pounds. Section S(G) of the permit requires NAEM to take all reasonable
precautions to ensure that the blasting does not throw flyrock beyond guarded areas. The
prevalence of flyrock on unpermitted properties demonstrates that NAEM has taken no such
precautions and that the blasting levels are too high.
Section 8(H) of the Pctxnit requires that NAEM immediately report any flyrock incident
to DENR and cease blasting until DENR has ensured that proper investigation and remedial
actions have been taken. Either NAEM: has violated the permit by failing to report these
incidents to DBNR, or DENR has failed to require the appropriate investigation. Certainly, the
blasting has wntinucd.
C-738573r3 I e484.00011

PAGE 12/14
OAH
05/02/2005 16:47 9197333407
Ms. Anita LeV eattx
April 18, 2005
Page 3
The dacavery of fiyrock an the prapertY awned by Jack B. Wooten & Co. and located
Wooten ro erty also leads to the reasonable inference that
across the stream from the Betty' P
Clean Water Act,
flyrock is falling into the stream in violation of section t104 of the
33 U.S.. C§1344 and state regulations at 15A N. . the p�hetioxt •4200 and 15A N.C.A.C. 2�1
section -0500. This is a violation of seetion 3(A)
eet from
NAEM has also tion
constructed a of tiro permit that NAEMore,maintain a minimum 100he stream in afoot
of the requirement in Section 3(B) adjoining waterway. Furthermore, despite
ers against
undisturbed buffer between the affected land and any J
the provision in 5ectiion'4(A) that obligates NAElv1 to ifieant quantitiest of silt havebeen
erosion, NAEM has taken no such precautions- Sigtu
in violation of both the Pertnit and the Clean Water Act.
discharged into the stream
The serious nature of these violatsor's t has not binitiatedject t'�nenforcement acv on insteese ad of
raise a serious question as to why DEN1t
amending the Permit.
Tro osal
The blasting NABM is currently conducting is disrupting lives in this community e,
at levels outside of its permitted range,
Brous ways- Either NAEM is blasting our disoussions with an
concrete and dang errnit are simply too high. Moreover, 5 blasts is set on
Or the levels established in the P a h measuring NAEM
expert in the.region's geology indicate that the serbantgr F
the diorite mek into which the blasts
a h reads vibrations significantly lower than those
a ridge of rock that is Softer and more shock-absarbant LO erttes Only by placing the
are directed. As a result, the
n molns rough the adjoining properties.
triggered in the diorite ridge
seisrrtog'aph on the diorite itself will NAEM achieve an aCC"'ate measure of the blasts' e "eCts•
Because the NAENl blasting i oa causing
ginm today)substantial faolla nS olution. Mr Walker ewx 1
we proposed on Wednesday ( propose ze that the blasting levels in the permit have allowed
dismiss his petition if DENR wall reeogpi must modify the permit to lower blasting
damage to anarea residenee and potable wells. DENR m
levels and require re to place its seismograph on the diorite ridge.
C-9z857gvt 18484.00011

PAGE 13/14
OAH
•05/021N05 16:47 9197333407
Ms. Anita LeVeaux
April 18,2005
p e4
ag
April 29 if DENR is willing to =wnd the permit. Otherwise, both
v P e that DENR shnuid »vt
Please tet me know by
parties will be Forced to in est substantial resources in a errntt challeng
defend.
Sincerely,
ROBINSON, BRADSHAW & H1NSOl'i� 1' „A.
illiam W- Toole
Mr. William Fred Walker, Jr.
Ms. Dor°tJennifer F.11eva a"'
Ms.
G928571v2 18484.00M 1

pgrE 14/14
�5/F12P:2005 10:47 9197333407
OAH
iH•! the I fill-4 ( W',IV [It No tit At rr) kri
u
` Re1um°Racelat R+et7uesi.�d
October 8, 20CA
Ms, poitie Watkins
b¢P.n �tY±eralns InC
P.0.6ox 276
Hiddenite, NC 28636
RE; Permit No, 02-06
North Amari ran Emerald Minas, Inc.
AleKOnder County
Yadkin River Basin
Dear Ms. Watkins:
This is to notify you that NAEM, Inc. has forlly applied through the
North Carolina Oeporimeni cf Environment and Natural Resources in
Raleigh to. increase the cornpany'S permitted mining acreage to
94.6 acres.
This is a strotegic decision only that will fccilitaie the approval
nrgf, u Iy' )Va.41,e the s_ of f_+t_ rind rc?r mining purposes. At this
r..,rr in ram, r h4 +,_I L` I - I Rpl
flrtie we do not foresee any change in our current mining plans.
1
$inegrely
J. Ronald summers, President and CEO
t,cyrth r3ml�rlccjrj Emerold Minas, Inc.
d
y
1.
33G.'
Ili rt,'Ai11 it ill, 11Ill :it l'iIt, N,Nrl11 on, II".; 7YIL ins
. �. t'llliu'8':Y.ol+-):11!:i F+•;;a H7ri.li i7. `!It'll

STATE OF NORTH CAROLINA
COUNTY OF ALEXANDER
WM. FRED WALKER, JR.,
Petitioner,
V.
N.C. DEPT. OF ENVIRONMENT
AND NATURAL RESOURCES,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04-EHR-2162
PETITIONER'S MOTION TO HAVE
ADMISSIONS DEEMED ADMITTED OR
TO COMPEL RESPONSES TO
REQUESTS FOR ADMISSION
Pursuant to Rules 36 and 37 of the North Carolina Rules of Civil Procedure and Rule
.0112 of the Rules of the Office of Administrative Hearings, Petitioner Fred Walker
("Petitioner") hereby requests that the OAH find Respondent N.C. Department of Environment
and Natural Resources' ("Respondent") responses to Petitioner's Requests for Admission
("Requests") insufficient. At issue is Respondent's refusal to answer those requests directed to
statutory notice defects, permit violations, improper permit terms, and the trustworthiness of the
permit holder's controlling shareholder to have access to explosives. Each of these issues is, at a
minimum, relevant to determining whether Respondent was arbitrary and capricious_ when it
issued the contested permit. Petitioner therefore moves the OAH to deem admitted all Requests
Respondent has not expressly denied or, in the alternative, to compel Respondent to provide full .
and complete responses to all Requests. In support of this motion, Petitioner shows the
following:-
1. Petitioner leases and cares for real properties that have been damaged by blasting allowed
under a mining permit (the "Permit") Respondent issued improperly to North American Emerald
Mines, Inc. ("NAEM"). Most recently, Respondent issued the Permit eleven days before the full
C-931532v3 18484.00011

30 day notice period and without giving notice of the public's right to request a public hearing.
Now, blasting conducted under color of the Permit has polluted Petitioner's water well and
thrown flyrock onto the land he leases and oversees, in direct violation of the Permit.
2. On April 14, 2005, Petitioner served Requests for Admission on Respondent. The
Requests sought admissions with regard to four aspects of this case: (1) procedural defects in the
issuance and subsequent modifications of the Permit (Requests 1-14); (2) substantive defects in
the Permit, namely the excessive level of blasting allowed and the provision ordering improper
placement of the seismograph (Requests 41-46 and 49-55); (3) serious violations of the Permit
by NAEM (Requests 15-40, 46-48); and (4) the criminal record of Jaines King Hill, NAEM's
majority owner, who has a lengthy history of violence and alcohol -related offenses (Requests 56-
67).
3. On May 2, 2005, Petitioner's counsel received Respondent's response to the Requests, a
copy of which is attached as Exhibit A. With respect to 60 of the 67 Requests served,
Respondent made blanket objections and refused to admit or deny the Requests.
4. With regard to the first three categories of Requests described in Paragraph 2 above —
procedural defects in the public notice, an excessive blasting limit resulting in substantial
property damage, and documented flyrock and road building violations of the express terms of
the Permit — Respondent objected on the grounds that the Requests were not reasonably
calculated to lead to the discovery of admissible evidence under Rule 26. Respondent asserted
that the procedural validity of the Permit, the Permit's terms and conditions, and NAEM's
violations of the Permit-ai'e•not relevantlo whether Respondent validly modified the Permit on
October 27, 2004.
5. Discovery on each of these subjects could not be more central to this court's evaluation
of the propriety of the 2004 modification. If Respondent issued the original Permit pursuant to a
C-931532v3 18484.00011

defective notice process in 2000, the Permit was invalid ab initio and no subsequent modification
can be valid. See Atlantic Coast Line R.R. Co. v. Town of Sanford, 188 N.C. 218, 220, 124 S.E.
308, 308 (1924)(city's subsequent assessments were invalid where aldermen failed to give
statutory notice to adjoining landowners; time to file objections does not begin where statutory
notice not given). The same reasoning applies with respect to the 2002 modification. If the
original issuance and 2002 modification were invalid, there was no valid permit for Respondent
to modify in 2004.
6. Respondent's files do in fact demonstrate that neither the original 2000 issuance nor the
2002 modification occurred in accordance with statutory procedure found at N.C. Gen. Stat §74-
50, Adjoining landowner D&M Emeralds, Inc. ("D&M") received no notice from either NAEM
or DENR in either instance. Attached as Exhibit B are the deeds to a portion of the land subject
to the Permit, land now owned by NAEM. Attached as Exhibit C is D&M's January 25, 1999
deed, filed on January 27, 1999, describing D&M's tract as Lot 91 of the Rist Mine. Attached as
Exhibit D is a plat of the Rist Mine showing the common property line of D&M and NAEM.
The property now owned by NAEM is identified as being owned by LKA International, Inc. on
Exhibit D. Exhibits B, C and D are on file with the Alexander County Register of Deeds.
Exhibits B and C may also be found at the official website of the Alexander County Register of
Deeds, www.alexanderrod.com. D&M was entitled to the notice of permit application, permit .
issuance, and permit modifications described in N.C. Gen. Stat §74-51.
7. Respondent's files contain Affidavits of Notification NAEM submitted in conjunction
with both its 2000 and 2002 applications. Neither affidavit lists D&M among t1V parties entitled
to notice. The NAEM affidavits are attached as Exhibit E. Respondent's internal memorandum
states that Notices of Issuance were sent only to the parties listed on NAEM's affidavit in 2000.
The 2000 memorandum is attached as Exhibit F. Respondent's files contain no corresponding
C-9315320 18484.00011

memorandum regarding Notices of Issuance in 2002. D&M in fact reports that it did not receive
any notice of the Permit issuance in 2000 or of the 2002 amendment. Thus, Respondent also.
Because D&M did not receive the mandatory notices in either 2000 or 2002, the Permit was
invalidly issued in 2000 and invalidly modified in 2002.
8. Under Orange County v. North Carolina Dept. of Transportation, 46 N.C. App. 350,
360-61, 265 S.E.2d 890, 895-96 (1980) and Empire Power Co. v. North Carolina Dept. of
Environment, Health and Natural Resources, 112 N.C. App. 566, 571, 436 S.E.2d 594, 598
(1993), rev'd on other grounds, 337 N.C. 569, 590, 447 S.E.2d 768, reh'g denied, 338 N.C. 314,
451 S.E.2d 634 (1994), Petitioner has an interest as a citizen in Respondent's compliance with
the public notice provisions that govern permit issuance. The validity of the 2000 issuance and
2002 modification bear directly on whether a valid permit exists that Respondent could properly
amend in 2004. Thus, Requests 4-14 regarding procedural defects in the 2000 issuance and 2002
modification fall within the scope of discoverable information under Rule 26, information
reasonably calculated to lead to the discovery of admissible evidence.
9. The Requests regarding substantive defects in the Permit terms and Permit violations bear
directly on the validity of the 2004 modification. N.C. Gen. Stat. §§74-5 1 (d)(7) and 74-52(b)
provide that a permittee's failure to be "in substantial compliance" with the Mining Act is
grounds for denying a permit modification. Had Respondent complied with the statutory notice.
provisions for permit issuance and amendment and not cut the period short by 11 days, it would
have heard from the community about homes and water wells physically damaged by NAEM's
blasting, rock flying beyond the permitted area, illegal road construction beside a stream, and
other substantive problems with the Permit terms and NAEM's compliance with the Permit.
Petitioner's Requests pertaining to substantive Permit defects and Permit violations are directly
relevant to whether Respondent acted arbitrarily and capriciously in granting NAEM's 2004
C-931532v3 18484.00011

modification without lowering the blasting level and ensuring NAEM was in compliance with its
obligations under the Permit.
10. Respondent's objections to the Requests regarding James King Hill's documented
charges and criminal judgments for physical violence and substance abuse on the grounds that
they "may be construed as seeking or [doj seek information not within the personal knowledge
of Respondent" do not meet the obligation to make reasonable inquiry. Mr. Hill was until
recently the President of NAEM and, upon information and belief, remains a majority and
controlling shareholder of NAEM. Certainly, he has corresponded with Respondent on many
occasions on behalf of NAEM, and a phone call or letter from Respondent looking into the issues
would not be burdensome. Rule 36 requires that "[ajn answering party may not give lack of
information or knowledge as a reason for failure to admit or deny unless he states that he has
made reasonable inquiry and that the information known or readily available to him is
insufficient to enable him to admit or deny." Respondent does not make any statement about its
inquiry efforts, apparently because it made no effort to investigate these Requests. In fact, the
answers to these requests are a matter of easily obtained public record. Attached as Exhibit G
are the results of the criminal background check Petitioner's counsel performed on Mr. Hill in
the Westlaw database. A brief call to the Dare County clerk's office confirmed the allegation in
request 61 that Mr. Hill was scheduled to face trial on various criminal charges on April 22,
2005. Respondent failed to make any inquiry, much less a reasonable inquiry, into these
requests.
11, petitioner regrets it must impose upon this Court to compel the responses to which
Petitioner Walker is entitled. Upon reviewing Respondent's response to the Requests, Petitioner
tried to resolve this matter informally, sending Respondent's counsel a letter on May 3, 2005,
pointing out the deficiencies in the response and requesting that Respondent provide substantive
C-931532,13 18484.00011

responses. Though the deadline for answering the Requests had passed, Petitioner's counsel
offered to extend Respondent's time to answer until May 9, 2005 if Respondent would agree to
amend its responses. A copy of this letter is attached hereto as Exhibit H. When Petitioner's
counsel received no response to this letter, Petitioner's counsel left a voice -mail message for
Respondent's counsel at approximately 7:20 a.m. on May 5 asking Respondent's counsel to
answer the letter. Upon receiving no response to this voice -mail message, Petitioner proceeded
to file this motion. By objecting to these Requests rather than investigating and answering their
assertions, Respondent continues to treat this case as a procedural exercise rather than an
opportunity to perform its statutory duty.
12. Under Rule 36 of the North Carolina Rules of Civil Procedure, "[i]f the court determines
that an answer does not comply with the requirements of [the] rule, it may order either that the
matter is admitted or that an amended answer be served." The attached evidence demonstrates
that Respondent must admit Petitioner's Requests. In light of this compelling evidence and in
consideration of judicial economy, Petitioner asks that the OAH deem his Requests admitted. In
the alternative, Petitioner asks that the OAH compel Respondent to answer the Requests fully
and completely within 15 days or such other time as the OAH deems reasonable.
WHEREFORE, Petitioner moves the OAH to deem admitted all requests Respondent
has not expressly denied or, in the alternative, to compel Respondent to provide a full and
complete response to all requests. Petitioner also asks that the OAH grant Petitioner such other
relief as the OAH deems just and proper.-
C-931532v3 18484.00011

This day of May, 2005.
C-931532v3 18484.00011
/" ZL-
William . Toole
N.C. Bar No. 16862
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: wtoolena,rbh.com
,/j 4T
jennilfer 11. Revelle
N.C. Bar No. 32896
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: irevelleArbh.com
Attorneys for Petitioner Wm. Fred Walker, Jr.
.zr

CERTIFICATE OF SERVICE
I hereby certify that the foregoing PETITIONER'S MOTION TO HAVE
ADMISSIONS DEEMED ADMITTED OR TO COMPEL RESPONSES TO REQUESTS
FOR AMISSION has been served on each of the parties to thaction by
the Unitised States mail, postage prepaid, p return receipt requested in adepositing same in
n envelope(s) addressed as
follows:
Anita LeVeaux
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
[e-mail]
This , day of May, 2005.
I
4Jef4eF. Revelle
C-931532v3 18484.00011

STATE OF NORTH CAROLINA
COUNTY OF ALEXANDER
WM. FRED WALKER, JR.,
Petitioner,
V.
N.C. DEPT. OF ENVIRONMENT
AND NATURAL RESOURCES,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04-EHR-2162
PETITIONER'S RULE 30(B)(6) NOTICE
TO DEFENDANT
PLEASE TAKE NOTICE that Petitioner William Fred Walker, Jr. ("Petitioner"),
through counsel and pursuant to Rule 30(b)(6) of the North Carolina Rules of Civil Procedure,
will take the deposition upon oral examination of a representative or representatives of
Defendant N.C. Dept. of Environment and Natural Resources ("Defendant"). The deposition
will be taken before an authorized officer at 9:00 a.m. on Wednesday, May 4, 2005 at the offices
of Robinson, Bradshaw & Hinson, P.A., 101 North Tryon Street, Suite 1900, Charlotte, North
Carolina 28246. The deposition will continue from day today until completed.
Pursuant to this Notice, Defendant shall designate one or more officers, directors,
managing agents, or other persons who consent to testify on its behalf as to matters known or
reasonably available to Defendant relating to the following matter:
Defendants' responses to Petitioner's Requests for Admission.
Pursuant to Rules 30(b)(6) and 34of the North Carolina Rules of Civil Procedure, you are
also required to make available for inspection and copying all documents which were reviewed
or relied upon by the 30(b)(6) designee in preparing for this deposition and all documents which
were reviewed in responding to Petitioner's Requests for Admission.

This 14`h day of April, 2005. � �j r-
William W. Toole
N.C. Bar No. 16862
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, NC 28249-1900
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: wtoole bh.com
R
Jeitif& F. Revelle
N.C. Bar No. 32896
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, NC 28249-1900
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: jrevelleArbh.com
Attorneys for Wm. Fred Walker, Jr.

CERTIFICATE OF SERVICE
I hereby certify that the foregoing RULE 30(B)(6) NOTICE TO DEFENDANT has been
served upon each of the parties to this action by email and by depositing same in the United States
mail, postage prepaid, in an envelope(s) addressed as follows:
Anita LeVeaux
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
aleveauxCcr�,nadoj.orQ
This 14th day of April, 2005.
41enrjelvel

STATE OF NORTH CAROLINA
COUNTY OF ALEXANDER
WM. FRED WALKER, JR.,
Petitioner,
V.
N.C. DEPT. OF ENVIRONMENT
AND NATURAL RESOURCES,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04-EHR-2162
PETITIONERS' REQUESTS FOR
ADMISSION
Pursuant to Rule 36 of the North Carolina Rules of Civil Procedure and North Carolina
Administrative Code Title 26, Rules 3.0101 and 3.0112, Petitioner William Fred Walker, Jr.
("Petitioner"), through counsel, requests that the N.C. Dept. of Environmental and Natural
Resources ("DENR") admit the truth of the following statements. Pursuant to N.C. Admin.
Code Rule 3.0112(f), within 15 days of receipt of these requests, the Respondent must (1) move
for relief from the requests; (2) provide the requested responses; or (3) offer a schedule for
reasonable compliance with the requests. Pursuant to North Carolina Rule of Civil Procedure
37(c) and N.C. Admin. Code Rule 3.0112(g), if the truth of any matter denied herein is
established at the hearing in this matter, Petitioner will apply to the Administrative Law Judge
for an order requiring DENR to pay the reasonable expenses incurred in making that proof,
including reasonable attorneys' fees.
DEFINITIONS AND INSTRUCTIONS
"DENR," "You" or "Your" shall mean the North Carolina Department of
Environmental Resources and its officials, employees, agents and representatives.

2. "NAEM" shall mean North American Emerald Mines, Inc. and its employees,
agents and representatives.
3. "Permit" shall mean Mining Permit No. 02-06 held by NAEM.
4. "Mine" shall mean the mining operation permitted by the Permit and located in
Alexander County, North Carolina.
5. "Affected Party" shall mean any record owner of land adjoining that lies within
1,000 feet of the Permit boundaries, any record owner of land that lies directly across and is
contiguous to any highway, creek, stream, river, other watercourse, railroad track, utility or other
public right-of-way that lies within 1,000 feet of the Permit boundaries, and any other persons,
corporations or other entities who are "persons aggrieved" as set forth in N.C.G.S. § 150B-2(6).
Admit:
1. NAEM did not give notice of its application for the modification of the Permit in
2004 as required by N.C.G.S. §74-50(b1).
2. Any notice NAEM gave of its application for modification of the Permit in 2004
as required by N.C.G.S. §74-50(bl) was defective.
3. The modification of the Permit was not properly issued by DENR in 2004.
4. DENR did not give notice to all Affected Parties of NAEM's application for the
Permit in 2002 as required by N.C. G.S. §74-51(b).
5. Any notice DENR gave of NAEM's application for the Permit in 2002 as required
by N.C.G.S. §74-51(b) was defective.
2

6. NAEM did not give notice of its application for modification of the Permit in
2002 as required by N.C.G.S. §74-50(bl).
7. Any notice NAEM gave of its application for modification of the Permit in 2002
as required by N.C.G.S. §74-50(bl) was defective.
8. The modification of the Permit was not properly issued by DENR in 2002.
9. DENR did not give notice to all Affected Parties of NAEM's application for the
Permit in 2000 as required by N.C.G.S. §74-51(b).
10. Any notice DENR gave of NAEM's application for the Permit in 2000 as required
byN.C.G.S. §74-51(b)was defective.
11. NAEM did not give notice of its application for the Permit in 2000 as required by
N.C.G.S.§74-50(bl)-(b2).
12. Any notice NAEM gave of its application for the Permit in 2000 as required by
N.C.G.S. §74-50(bl)-(b2) was defective.
13. The Permit was not properly issued by DENR in 2000.
14. The Pennit is null and void.
15. Section 8(G) of the Permit requires NAEM to take all reasonable precautions to
ensure that flyrock is not thrown beyond areas the access to which is temporarily or permanently
guarded by NAEM.
16. Section 8(G) of the Permit provides that failure to take corrective measures to
nsidered a violation of the Permit.
prevent flyrock and repeated instances of flyrock shall be co
17. Flyrock has been thrown beyond areas the access to which is temporarily or
permanently guarded by NAEM.
LI

18. NAEM has failed to take reasonable precautions to prevent flyrock being thrown
beyond areas the access to which is temporarily or permanently guarded by NAEM.
19. NAEM's failure to take reasonable precautions to prevent flyrock being thrown
beyond areas the access to which is temporarily or permanently guarded by NAEM is a violation
of the Permit.
20. NAEM has failed to take corrective measures to prevent flyrock being thrown
beyond areas the access to which is temporarily or permanently guarded by NAEM.
21. NAEM's failure to take corrective measures to prevent flyrock being thrown
beyond areas the access to which is temporarily or permanently guarded by NAEM is a violation
of the permit.
22. There have been repeated instances of flyrock being thrown beyond areas the
access to which is temporarily or permanently guarded by NAEM.
23. Repeated instances of flyrock being thrown beyond areas the access to which is
temporarily or permanently guarded by NAEM are a violation of the Permit.
24. Section 8(H) of the Permit requires that, should flyrock occur beyond the
permitted and guarded areas, NAEM must immediately report the incident to DENR.
25, Section 8(H) provides that, after NAEM reports flyrock beyond the permitted and
guarded areas to DENR, further use of explosives at the Mine shall be suspended until (1) a
thorough investigation as to the cause(s) of the incident has been conducted and (2) a detailed
report documenting the cause(s) of the incidents and actions to be taken to prevent further
incidents shall have been submitted to and approved by DENR.
26. NAEM has never reported to DENR an instance of flyrock being thrown beyond
the permitted and guarded areas.
4

27. NAEM's failure to report to DENR instances of flyrock beyond the permitted and
guarded areas is a violation of the Permit.
28. The deposition of flyrock into a waters of the state, waters of the U.S. or wetlands
without a permit is a violation of section 404 of the Clean Water Act, 33 U.S.C. §1344.
29. Section 3(A) of the Permit requires that any mining activity affecting waters of
the State, waters of the U.S. or wetlands shall be in accordance with the requirements and
regulations promulgated and enforced by the N.C. Environmental Management Commission.
30. Section 3(B) of the Permit requires that NAEM maintain a minimum 100-foot
undisturbed buffer between any affected land and any adjoining waterway or wetland.
roads.
31. Under N.C.G.S. §74-49(1), the definition of "affected land" includes non-public
32. NAEM has constructed a non-public road within 27 feet of a stream.
33. NAEM's construction of a non-public road within 27 feet of a stream is a
violation of the Permit.
34. Section 4(A) of the permit requires NAEM to construct adequate mechanical
barriers to prevent sediment from discharging into any natural watercourse in proximity to the
affected land.
35. NAEM has failed to construct adequate mechanical barriers to prevent sediment
from discharging into any natural watercourse in proximity to the affected land.
36. As a result of NAEM's failure to construct adequate mechanical barriers,
sediment has discharged into a natural watercourse in proximity to the affected land.
Permit.
37. NAEM's failure to construct adequate mechanical barriers is a violation of the
5

38. Section 4(B) of the Permit requires that NAEM conduct mining activities as
indicated by the Erosion and Sedimentation Control Plan last revised December 22, 1999 and the
supplemental Erosion and Sedimentation Control Narrative and design calculations.
39. NAEM has not conducted mining activities as indicated by the Erosion and
Sedimentation Control Plan last revised December 22, 1999 and the supplemental Erosion and
Sedimentation Control Narrative and design calculations.
40. NAEM's failure to conduct mining activities as indicated by the Erosion and
Sedimentation Control Plan last revised December 22, 1999 and the supplemental Erosion and
Sedimentation Control Narrative and design calculations is a violation of the Permit.
41. Under N.C.G.S. §74-51(d)(2), DENR may deny a permit application upon finding
that the operation will have unduly adverse effects on potable groundwater.
42. DENR has received complaints that blasting by NAEM has damaged wells that
deliver potable groundwater.
43. DENR has not investigated the complaints that blasting by NAEM has damaged
wells that deliver potable groundwater.
44. Where damage to a well that is the sole source of potable water to a dwelling is
due to blasting pursuant to the Permit, such damage is an unduly adverse effect on potable
groundwater.
45. Where damage to multiple wells that are the sole source of potable water to
dwellings is due to blasting pursuant to the Permit, such damage is an unduly adverse effect on
potable groundwater.
E,

46. Section 8 of the Permit requires that the seismograph used to monitor blasts at the
Mine be located at a distance no farther from the blast than the closest off -site, regularly
ied structure not owned or leased by NAEM
occup.
dist
The seismograph used to monitor blasts at the Mine is not located anc
at a e no
farther from the blast than the closest off -site, regularly occupied structure not owned or leased
FWJ
by NAEM.
The fact that the seismograph used to monitor blasts at the Mine is not located at a
48.
distance no farther from the blast than the closest off -site, regularly occupied structure not owned
or leased by NAEM is a violation of the permit.
Regulating the distance of the seismograph from the blast is not the proper means
of ensuring that NAEM is blasting within permitted levels.
50. The proper means of ensuring that NAEM is blasting within permitted levels is to
the same ridge of rock into which NAEM is blasting.
require NAEM to place the seismograph on
51. In order to obtain accurate readings of blasting levels at the Mine, the
seismograph must be placed on the diorite rock into which NAEM is blasting.
52. The permit should require that the seismograph be placed on the diorite rock.
53. DENR should set blasting levels in permits it issues low enough to prevent
structural damage to nearby houses and buildings.
54. Blasting NAEM has conducted pursuant to the Permit has caused structural
damage to a nearby house,
established by the Permit, the Permit sets those
55. If NAEM is blasting within levels
blasting limits too high.
56. James King Hill owns a majority stake in NAEM.

57 James King Hill has a history of drug and alcohol abuse.
58. As a result of his drug and alcohol abuse, James King Hill has been denied a
driver's license by the North Carolina Department of Motor Vehicles.
59. On or about January 31, 2005, James King Hill was charged with assault
involving affliction of serious injury in Alexander County.
60. On or about June 1, 2004, James King Hill was charged with carrying a concealed
weapon, driving while impaired and reckless driving/wanton disregard in Dare County, North
Carolina.
61, James King Hill is scheduled to be tried on the charges filed on June 1, 2004 in
Dare County on or about April 22, 2005.
62, On or about December 19, 2003, James King Hill was charged with assault
involving affliction of serious injury in Alexander County.
On or about February 15, 2000, James King Hill was charged with being
intoxicated and disruptive and causing damage to personal property in Catawba County, North
Carolina.
64. Pursuant to the charges filed February 15, 2000, James King Hill pled guilty or
was found guilty by a judge of injury to personal property on or about June 28, 2000.
65. On or about May 2, 1999, James King Hill was charged with carrying a concealed
weapon, driving while impaired, and causing injury to personal property in Iredell County, North
Carolina.
to the charges filed May 2, 1999, James King Hill pled guilty or was
66. Pursuant
found guilty by a judge of driving while impaired on or about September 9, 1999.
N

67. Issuing a mining permit that allows blasting with explosives to a company whose
majority owner has a history of physical violence, drag and alcohol abuse is a violation of DENR
policy.
This 14th day of April, 2005.
William W. Toole
N.C. Bar No. 16862
RoBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: wtoole(@,,rbh.com
"-2-
jent6ifer F. Re elle
N.C. Bar No. 32896
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: irevell� om
Attorneys for Petitioner Wm. Fred Walker, Jr.
0

CERTIFICATE OF SERVICE
I hereby certify that the foregoing PETITIONER'S FIRST REQUESTS FOR
ADMISSION has been served upon each of the parties to this action by email and by depositing
same in the United States mail, postage prepaid, in an envelope(s) addressed as follows:
Anita LeVeaux
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
[e-mail]
This i day of April, 2005.
4jep, Be
l
lle

STATE OF NORTH CAROLINA
COUNTY OF ALEXANDER
WM. FRED WALKER, JR.,
Petitioner,
V.
N.C. DEPT. OF ENVIRONMENT
AND NATURAL RESOURCES,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
04-EHR-2162
PETITIONER'S NOTICE OF
DEPOSITION TO JAMES D. SIMONS
PLEASE TAKE NOTICE that Petitioner William Fred Walker, Jr., through counsel and
pursuant to Rule 30 of the North Carolina Rules of Civil Procedure, will take the deposition upon
oral examination of James D. Simons of Defendant N.C. Dept. of Environment and Natural
Resources. The deposition will betaken before an authorized officer at 9:00 a.m. on Thursday,
May 5, 2005 at the offices of Robinson, Bradshaw & Hinson, P.A., 101 North Tryon Street,
Suite 1900, Charlotte, North Carolina 28246. The deposition will continue from day to day until
completed.
Pursuant to Rule 34of the North Carolina Rules of Civil Procedure, you are also required
to make available for inspection and copying all documents which were reviewed or relied upon
in preparing for this deposition.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]

This 14th day of April, 2005.`�—
William W. Toole
N.C. Bar No. 16862
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, NC 28249-1900
Direct Dial: [phone]
Direct Facsimile: [phone]
Em '1: wtooleCa�xbh.com
J nnifer F. evelle
N.C. Bar No. 32896
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, NC 28249-1900
Direct Dial: [phone]
Direct Facsimile: [phone]
Email: jrevelleCa)Xbh.com
Attorneys for Wm. Fred Walker, Jr.

CERTIFICATE OF SERVICE
I hereby certify that the foregoing NOTICE OF DEPOSITION TO JAMES D. SIMONS
has been served upon each of the parties to this action by email and by depositing same in the
United States mail, postage prepaid, in an envelope(s) addressed as follows:
Anita I.eVeaux
N.C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699
aleveaux0mcd i.org
This 14th day of April, 2005.
L I Tj -
J fer F. Revelle