Free Proposed Findings of Fact - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' POST-TRIAL PROPOSED FINDINGS OF FACT ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center hereby submit the following Post-Trial Proposed Findings of Fact. SUBJECT MATTER JURISDICTION 1. The parties stipulate that this Court has subject matter jurisdiction over the claims in this case pursuant to 33 U.S.C. § 1365(a) of the CWA and 28 U.S.C. Section 1331. Doc. # 219, p. 3, ¶ a. DEFENDANTS' PROPERTY OWNERSHIP INTERESTS 2. The parties stipulate that the Roosevelt Tunnel is a six-mile long, man-made tunnel that was constructed to drain water from mines in the Cripple Creek-Victor area in Teller County, Colorado. Doc. # 219, p. 3, ¶ d. 3. EPGM admits that today a modest flow of water exits the Roosevelt Tunnel through its portal and flows through a road culvert to Cripple Creek. Ex. 11, p. 2.

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4.

The parties stipulate that the Roosevelt Tunnel portal is located along Shelf Road, County Road 88 in Teller County, Colorado. Doc. # 219, p. 4, ¶ h. The Roosevelt Tunnel portal discharges water into Cripple Creek. 421 F.3d at 1136.

5.

The parties stipulate that a portion of the Roosevelt Tunnel underlies Defendant's property. Doc. # 219, p. 3, ¶ e.

6.

The parties stipulate that a vertical mine shaft known as the El Paso shaft extends from the land surface of El Paso's property vertically to the Roosevelt Tunnel at a point about two and a half miles from the portal. Doc. # 219, p. 3, ¶ f.

7.

The parties stipulate that Defendant owns the El Paso shaft and mineral rights in Teller County, Colorado. Doc. # 219, p. 4, ¶ m.

8.

EPGM owns approximately 100 acres of surface and mineral rights in Teller County, Colorado. Ex. 3, p. 1, ¶3.

9.

The parties stipulate that underground mine workings connect to the El Paso shaft. Doc. # 219, p. 3, ¶ g.

10.

The parties stipulate that Defendant does not have a National Pollutant Discharge Elimination System permit, issued pursuant to the Clean Water Act, to discharge pollutants into, or from, the Roosevelt Tunnel into Cripple Creek. Doc. # 219, p. 4, ¶ j.

11.

The parties stipulate that Defendant has taken no action to reduce pollutant concentrations in the effluent discharge from the Roosevelt Tunnel. Doc. # 219, p. 4, ¶ k.

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12.

The parties stipulate that Defendant does not operate a mechanical treatment system to treat the discharge of effluent from the Roosevelt Tunnel. Doc. # 219, p. 4, ¶ l.

13.

EPGM President Dennis Schoger identified EPGM's property ownership interest along the Roosevelt Tunnel by drawing a yellow line around EPGM's property boundary in Defendant's Exhibit A, Figure 2. See, Ex. 1, p. 1, Response to Request for Admission 1. See also, Ex. A, Figure 2.

14.

EPGM owns approximately 1,000 feet of the Roosevelt Tunnel. Ex. A, Figure 2. Approximately 600 feet of EPGM's ownership of the Roosevelt Tunnel is located immediately down gradient of the intersection of with the El Paso shaft. Ex. A, Figure 2. Approximately 400 feet of EPGM's ownership of the Roosevelt Tunnel is located immediately up gradient of its intersection with the El Paso shaft. Ex. A, Figure 2.

15.

The parties stipulate that Defendant's property is located by agreement within the Amendment 8 mine permit boundary of the Cripple Creek & Victor Gold Mine (also known as the Cresson Project), which is an active gold mine permitted by the Colorado Division of Minerals and Geology, Permit # 80-M-244. Doc. # 219, p. 4, ¶ i.

16.

The parties stipulate that in 2004 El Paso Gold Mines, Inc. changed its name to El Paso Properties, Inc. These companies are one and the same. Only the name has been changed. Doc. # 219, p. 4, ¶ n.

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DEFENDANT'S REQUEST FOR A DISCHARGE PERMIT 17. EPGM admits that on September 4, 2001, Plaintiffs sent a notice letter of their intent to sue EPGM under the federal Clean Water Act for discharging pollutants from the Roosevelt Tunnel to Cripple Creek without a discharge permit. Ex. 11, p. 3 & Ex. 12, p. 2, ¶ 11. 18. In response to Plaintiffs' notice letter, EPGM formed a Colorado company, Roosevelt Tunnel, LLC ("RTLLC") for the purpose of applying for and complying with a discharge permit for the Roosevelt Tunnel. Ex. 12, p. 2, ¶13 & Ex. 11, p. 3. 19. On October 2, 2002 EPGM met with the State of Colorado to discuss details of obtaining a discharge permit for the Roosevelt Tunnel flows to Cripple Creek. Ex. 11, p. 3. 20. On October 12, 2001, El Paso Gold Mines, Inc. voluntarily caused RTLLC to submit an application for a discharge permit to the Colorado Department of Public Health and Environment, Water Quality Control Division ("WQCD"). Ex. 3, p. 3, ¶ 14 & Ex. 11, p. 3 & Ex. 13 & Ex, 12, p. 2, ¶14. 21. EPGM admits that RTLLC's application to the WQCD acknowledged that EPGM's property might contribute to the Roosevelt Tunnel flows. Ex. 11, p. 3. The cover letter to the October 12, 2001 permit application states "EPGM has no reason to believe that its property is the sole source of the Roosevelt Tunnel discharge." Ex. 13, p. 2 and Ex. 34, p. 1. 22. On November 8, 2001, EPGM and RTLLC entered into a Wastewater Treatment and Discharge Agreement in which EPGM agreed to reimburse RTLLC the costs

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associated with applying for and complying with a discharge permit for the Roosevelt Tunnel flows. Ex. 11, p. 3 & Ex. 34. 23. On June 28, 2002 the WQCD denied the discharge permit application and issued a water quality assessment of Cripple Creek and the effects of the Roosevelt Tunnel portal discharge. Ex. 19. The WQCD denied the permit application because "the owner of the major source of flow from the Roosevelt Tunnel [EPGM] did not apply for a permit." Ex. 19, p. 1. The permit denial also states that "[t]he Division and Region 8 of the Environmental Protection Agency have been investigating sources of water that is discharged from the Roosevelt Tunnel and, based upon available information, both agencies have determined that the El Paso shaft, a vertical mine shaft owned by El Paso Gold Mines, Inc. contributes the majority flow in the discharge." Ex. 19, p. 1. 24. On June 26, 2002 EPGM filed a Complaint for Mandamus Relief in Teller County District Court, Colorado against the WQCD arguing that it was "entitled to issuance of a temporary permit for discharge from the Roosevelt Tunnel" and asking the Court to order WQCD to issue a discharge permit to EPGM. Ex. 35. 25. On July 25, 2002, the WQCD issued a Notice of Violation and Cease and Desist Order to El Paso ordering El Paso to apply for a discharge permit and to retain an expert in mine drainage treatment to evaluate options to treat or eliminate the effluent "associated with" defendant's Teller County property. Doc. # 139 at 3 (2003 WL 25265873).

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26.

EPGM has represented to this Court that "EPGM is willing to help resolve Roosevelt Tunnel discharge issues and believes that responsibility for the discharge should be shared by all landowners whose properties are drained by the Roosevelt Tunnel. Ex. 12, p. 2, ¶ 17 & Ex. 13, p. 2.

ADMISSIBILITY OF PLAINTIFFS' EXPERT WITNESSES 27. Dr. Ann Maest is a geochemist specializing in the fate and transport of pollutants at hard rock mine sites. Ex. 21 (resume) and Testimony of Dr. Maest. Dr. Maest is well qualified to render expert opinions regarding the fate and transport of pollutants at this hard rock mine site. 28. Dr. Maest is the only expert witness to offer an expert opinion regarding whether pollutants from the El Paso shaft reach the Roosevelt Tunnel portal and Cripple Creek. 29. Dr. Maest's expert opinion is that flow from the El Paso shaft reaches the portal and Cripple Creek. Dr. Maest reviewed all available inspection reports documenting water flow inside the Roosevelt Tunnel. Dr. Maest and Dr. McCord testified that visual observation of surface flow is a sound scientific methodology to establish the existence of uninterrupted surface flow between two points. Defendant's expert Mr. Brogden agreed that visible observation of surface flow between two points is an acceptable methodology for documenting surface flow. Defendant's expert Arthur O'Hayre testified that the only acceptable methodology to establish flow between two points is use of an artificial tracer, although Dr. O'Hayre admitted that he has never used an artificial tracer to establish surface flow between two points. Instead, Dr.

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O'Hayre has only used visible observation--as did Dr. Maest. Dr. Maest's conclusion that flow from the El Paso shaft reaches the portal was confirmed and corroborated by a review of the water quality characteristics of the two potential sources of the water discharging at the Roosevelt Tunnel portal--namely; 1) the water from the El Paso shaft; and, 2) the seepage from the un-mined granite between the El Paso shaft and the portal. Dr. Maest opined that sulfate is a good natural "tracer" to establish the source of the water discharging at the portal. Sulfate is a good "natural tracer" because sulfate does not participate in any chemical reactions, except dilution. Thus, sulfate will travel with the flow of the water relatively unaffected by any chemical reactions. Defendant's expert witness Arthur O'Hayre agreed with Dr. Maest that sulfate is a good natural tracer. Testimony of Arthur O'Hayre. Plaintiffs' expert witness Dr. James McCord also agreed with Dr. Maest and Dr. O'Hayre that sulfate is a good natural tracer in this case. Testimony of Dr. McCord. 30. All of the methodologies and principles relied upon by Dr. Maest were supported by scientific reference papers and the testimony of other expert witnesses in this case. Ex. 77, p. 1 (precipitation); Ex. 81 (adsorbtion); Ex. 93 (adsorbtion); Ex. 94 (natural tracers); Ex. 95 (water quality sampling) Ex. 96 (precipitation and dissolution); Ex. 97 (adsorbtion); Ex. 98 (geochemistry of acid mine waters); Ex. 99 (oxidation); Ex. 100 (fate and transport); Ex. 102 (porosity, heads & gradients, hydraulic conductivity, functions of ground water systems, velocity); Ex. 103 (permeability of granite); Ex.

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105 (adsorption); Ex. 126 (use of visible observation of flow and water quality sampling as methodologies for fate and transport of visible surface waters). 31. Dr. Jim McCord is a hydrologist. Dr. McCord is well qualified to render expert opinions regarding hydrology and natural tracers. Ex. 119. Dr. McCord testified that the water flow calculations by Defendant's expert Robert Brogden, and found in Exhibit V could not be relied upon. Dr. McCord testified that Mr. Brogden failed to employ the proper methodologies in calculating water flow volumes in Ex. V. See also Ex. 129. Dr. McCord also testified that Mr. Brogden's calculations could not be replicated because he failed to identify which of the many "weir equations" he was using to calculate the flow volumes in Ex. V. Mr. Brogden testified that he did not have any notes or other evidence of the calculations he made or the weir equations he employed in reaching his water flow volumes in Ex. V. Dr. McCord also testified that Dr. Maest used a scientifically sound methodology in relying on sulfate as a conservative natural tracer to determined the source of water flow and pollutants discharging at the Roosevelt Tunnel portal. Dr. McCord's opinions and methodologies were supported by several scientific reference papers. Ex. 103 (permeability of granite); Ex. 122 (use of natural tracers); Ex. 129 (methodologies for calculating flow volume in an open channel). INADMISSIBILITY OF DEFENDANTS' EXPERT WITNESS OPINIONS 32. Defendant's expert witness Robert Brogden opined that a significant amount of water was exfiltrating through the floor of the Roosevelt Tunnel. However, Mr. Brogden was unable to identify any physical evidence supporting this theory. There are no

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photographs, videotapes, or inspection reports documenting any fractures in the floor of the Roosevelt Tunnel that would cause a significant exfiltration of water. Mr. Brogden did not conduct an inspection of the Roosevelt Tunnel. Mr. Brogden did not conduct any testing inside the tunnel to support this theory. Mr. Brogden did not investigate the permeability of the granite in the floor of the Roosevelt Tunnel. Mr. Brogden's theory was not supported by any scientific reference papers. Mr. Brogden admitted at trial that 100 years of sediments in the floor of the Roosevelt Tunnel would reduce exfiltration from the tunnel floor. 33. Dr. McCord testified that the tunnel floor is made up of granite, which is relatively impermeable. Dr. McCord's testimony regarding the impermeable nature of the tunnel floor was supported by a scientific reference paper. Ex. 103, p. 2. Mr. Brogden's opinions regarding the extent of exfiltration from the Roosevelt Tunnel floor are inadmissible under Federal Rule of Evidence 702 because they are not based on reliable data and are not based on a scientifically sound methodology. In the alternative, even assuming that Mr. Brogden's opinions regarding exfiltration from the Roosevelt Tunnel floor are admissible, this Court gives no weight to these opinions because they are not adequately supported by the factual evidence admitted at trial. 34. Mr. Brogden also attempted to calculate the flow volume in various locations of the Roosevelt Tunnel based on the November 16, 2000 videotaped inspection of the tunnel by CC&V. Dr. McCord and Arthur O'Hayre testified that Mr. Brogden's water flow calculations found in Exhibit V could not be relied upon. Dr. McCord

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testified that Mr. Brogden failed to employ the proper methodologies in calculating water flow volumes in Ex. V. The proper methodologies for calculating open channel flow are found in Trial Exhibit 129. There is no evidence that Mr. Brogden applied the roughness coefficient as is required by Exhibit 129. Testimony of Dr. McCord and Exhibit 129. Failure to apply the roughness coefficient would result in a significant overestimate of flow volumes inside the Roosevelt Tunnel. Testimony of Dr. McCord. Dr. McCord also testified that Mr. Brogden's calculations could not be replicated because he failed to identify which of the many "weir equations" he was using to calculate the flow volumes in Ex. V. Mr. Brogden testified that he did not have any notes or other evidence of the calculations he made or the weir equations he employed in reaching his water flow volumes in Ex. V. Finally, the videotape of the November 16, 2000 inspection does not reveal the type of large variations in flow as estimated by Mr. Brogden. Ex. 43. Accordingly, Mr. Brogden's attempt to calculate flow volumes at various locations inside the Roosevelt Tunnel on November 16, 2000 are inadmissible under Federal Rule of Evidence 702 because they are not based on reliable data and are not based on a scientifically sound methodology. In the alternative, even assuming that Mr. Brogden's opinions regarding flow volumes are admissible, this Court gives no weight to these opinions because they are not adequately supported by the factual evidence admitted at trial. 35. Defendant's expert witness Dr. Arthur O'Hayre criticized Dr. Maest for failing to consider 1926 water quality data from inside the Roosevelt Tunnel regarding sulfate concentrations in granite as found in Ex. Z. On cross-examination, Dr. O"Hayre was

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forced to admit that he did not know where the 1926 water quality samples were collected. On re-direct, Dr. Maest established that the water quality samples were not taken from the granite between the El Paso shaft and the Roosevelt Tunnel portal. Instead, the 1926 water quality data relied upon by Dr. O'Hayre appeared to be collected from the highly mineralized area inside the diatreme. Testimony of Dr. Maest. Dr. Maest testified that she would expect these sample results to reveal higher concentrations of sulfate because they were collected in the highly mineralized diatreme area of the Cripple Creek Mining District. Also, Dr. Maest testified that the 1926 data was too old to be reliable to determine current conditions inside the Roosevelt Tunnel. 36. Furthermore, Dr. O'Hayre confirmed that Dr. Maest's methodologies of using a natural tracer to determine the source of flow and pollutants at the portal was a scientifically acceptable methodology. Defendant's expert Arthur O"Hayre testified that the only acceptable methodology to establish flow between two points is use of an artificial tracer, although Dr. O'Hayre admitted that he has never used an artificial tracer to establish surface flow between two points. Instead, Dr. O'Hayre has only used visible observation--as did Dr. Maest. 37. Dr. O'Hayre admitted on cross-examination that he created a conceptual model to determine whether any water from the El Paso shaft was reaching RT-1 (700' from the portal) on November 16, 2000. Dr. O'Hayre admitted that, based on his own conceptual model, approximately 5.6% of the water from the El Paso shaft was reaching RT-1. Dr. O'Hayre's conceptual model also found that based on the sulfate

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concentrations, approximately 10.6% of the water from the El Paso shaft reached RT1. 38. 39. Dr. O'Hayre failed to support any of his opinions with any scientific reference papers. Dr. O'Hayre's trial testimony conflicted with his deposition testimony in several significant respects. 40. For the reasons stated above, Dr. O'Hayre's opinions fail to meet the standards for admissibility under Federal Rule of Evidence 702. Even if Dr. O'Hayre's opinions were admissible, this Court would give his testimony no weight for the reasons stated above. WATER AND POLLUTANTS FROM THE EL PASO SHAFT REACH THE PORTAL a. Water flow from the El Paso shaft reaches the portal and Cripple Creek 41. El Paso admits that, at intermittent times, water flows from the portal of the Roosevelt Tunnel into Cripple Creek. Ex. 3, p. 2, ¶6. 42. El Paso admits that the "Roosevelt Tunnel has a seasonally fluctuating continuous discharge." Ex. 13, Bates 203. 43. The parties have stipulated that the volume of water discharging from the Roosevelt Tunnel portal to Cripple Creek was measured (in gallons per minute) on at least the days listed in Trial Exhibit 5. 44. During winter when the flow from the Roosevelt Tunnel freezes, the water exits both from the black pipe connected to the Roosevelt Tunnel portal as well as through the portal gate. Ex. 6, p. 3, photos. 5 FF and 6 FF.

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45.

Dr. Maest reviewed all available inspection reports documenting flow inside the Roosevelt Tunnel. Ex. B, Attachment B; Ex. 51, and Ex. 62. These inspection reports repeatedly document the existence of continuous water flow from the El Paso shaft to the Roosevelt Tunnel portal. Ex. B, Attachment B ("[b]oth trips encountered water up to about 3 ½ feet deep for most of the stretches between the portal and the El Paso shaft" 10/13/2000 Andy Bordiuk Memo)("there was always significant water flow in the tunnel from the portal to the wooden shaft at the El Paso Mine" Glenn R. Asch 10/10/2000 Memo)("we walked over ice and water from the portal to the damned section below the El Paso shaft" David Vardiman 10/6/2000 memo)("All water emanating from the portal was derived from the El Paso shaft flow" Jeff Pontius 10/10/2000 Memo)("there was significant water all the way back to the El Paso shaft" Tim Harris 10/13/2000 Memo). See also, Ex. 51, p. 3 ("[p]onded and flowing water conditions exist from a point 663 feet east of the El Paso shaft crosscut intersection to the portal of the tunnel"); Ex. 62, p. 4 ("water flow from El Paso shaft to portal"). These flow conditions were confirmed by the testimony of Kenneth Klco who conducted an inspection of the Roosevelt Tunnel on August 21, 2001 in which he observed continuous flow from the El Paso shaft to the Roosevelt Tunnel portal and into Cripple Creek. Testimony of Kenneth Klco. These flow conditions were also confirmed in the videotape of the November 16, 2000 inspection of the Roosevelt Tunnel by employees of CC&V in which the documented continuous flow from the El Paso shaft at least to a location 700' from the portal--at which point a majority of the water was frozen to the portal. Ex. 43.

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46.

Based on her review of this documentation of flow inside the Roosevelt Tunnel, Dr. Maest concluded that there are only two sources of water discharging at the Roosevelt Tunnel portal--water discharged from the El Paso shaft into the Roosevelt Tunnel and water seeping into the Roosevelt Tunnel from the un-mined granite between the portal and the El Paso shaft. Testimony of Dr. Maest. This fact is illustrated on Trial Exhibit 76.

47.

In addition to relying on flow documentation, Dr. Maest also analyzed the water quality data to determine whether the chemistry of the water could confirm whether flow from the El Paso shaft was reaching the portal. Dr. Maest focused on the relative sulfate concentrations at the portal, from the El Paso shaft, and from the granite seepage because sulfate serves as a natural "tracer" due to the fact that it does not participate in any chemical reactions except dilution. Thus, sulfate will travel with the flow of the water relatively unaffected by any chemical reactions. Defendant's expert witness Arthur O'Hayre agreed with Dr. Maest that sulfate is a good natural tracer. Testimony of Arthur O'Hayre. Plaintiffs' expert witness Dr. James McCord also agreed with Dr. Maest and Dr. O'Hayre that sulfate is a good natural tracer in this case. Testimony of Dr. McCord.

48.

Dr. Maest analyzed sulfate water quality data from 3 different occasions taken of water discharging from the El Paso shaft into the Roosevelt Tunnel. Ex. 23 ("RT-El Paso 10/14/1994= 1,300 ppm sulfate"); Ex. 24 ("El Paso 11/16/00 = 1,397 ppm sulfate"); and Ex.60 ("El Paso Shaft 08/07/01= 1,423 ppm sulfate"). Based on this El Paso shaft sulfate data, Dr. Maest was able to characterize the water discharging from

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the El Paso shaft as containing very high concentrations of sulfate (average of 1,373 ppm). Testimony of Dr. Maest. 49. Dr. Maest also analyzed the water quality characteristics of water seeping into the Roosevelt Tunnel from the un-mined granite between the El Paso shaft and the Roosevelt Tunnel. Dr. Maest analyzed a water quality sample taken on October 14, 1994 from water seeping into the Roosevelt Tunnel from the un-mined granite between the El Paso shaft and the Roosevelt Tunnel . Ex. 23 ("RT- EP4000 10/14/1994 = 76 ppm sulfate") and Ex. 16, Bates 291 ("granite" column which is same data as in Ex. 23). Dr. Maest characterized this seepage from the granite as being "clean water" with very low sulfate concentrations. Testimony of Dr. Maest. Dr. Maest also analyzed other background water quality data collected from un-mined areas of the Cripple Creek Mining District. Ex. 61 ("Baseline Water Quality Data, Exhibit 61"). This data also showed that the background water quality was very low in sulfate concentrations--similar to the 10/14/1994 sulfate data from water seeping from the granite. Ex. 23, Ex. 61 and Testimony of Dr. Maest. 50. Dr. Maest's also analyzed sulfate water quality data from the water discharging from the Roosevelt Tunnel portal into Cripple Creek. Ex. 61 ("Roosevelt Tunnel Portal Sulfate Data 6/14/1991 to 5/23/2001"); Ex. 53, p. 11 (U.S. EPA sample on 9/19/01 at the Roosevelt Tunnel portal "RT-1"); Ex. 65 (monthly Roosevelt Tunnel portal water quality data from April 2001-May 2002). There is almost ten years of sulfate water quality data at the portal. The water discharging from the Roosevelt Tunnel portal into Cripple Creek is also high in sulfate (consistently well-exceeding 900 ppm

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sulfate)--although lower in concentrations than the water being discharged from the El Paso shaft. Ex. 87. The concentrations of sulfate from the El Paso shaft and at the portal have been plotted and are illustrated on Trial Exhibits 87 and 109. 51. Based on this data, Dr. Maest determined that the El Paso shaft is the source of at least some of the water discharging at the portal because the sulfate data fingerprints the El Paso shaft as a source of flow at the portal. The high concentrations of sulfate at the portal cannot be explained by seepage from the granite because sulfate concentrations are in the water seeping from the granite are very low (less than 100 ppm sulfate) while concentrations of sulfate in the El Paso shaft are much higher (approximately 1,200 ppm). Instead, the sulfate data shows that the high concentrations of sulfate from the El Paso shaft were being diluted by the cleaner seepage from the granite. However, the high sulfate concentrations at the portal proves that at least some of the water discharging at the Roosevelt Tunnel portal comes from the El Paso shaft. These facts are illustrated in Trial Exhibits 78 (page 2) which shows the sulfate concentrations along the length of the Roosevelt Tunnel between the El Paso shaft and RT-1 (700' before the portal) on November 16, 2000 and sulfate concentrations at the portal on October 30, 2000 (the closest date of sampling at the portal to the 11/16/00 date). See also, Ex. 109. 52. Defendant submitted evidence of additional background sulfate levels in the granite in an attempt to demonstrate that Dr. Maest failed to consider all data in rendering her opinion that El Paso Shaft sulfate is discharging at the Roosevelt Tunnel portal. Ex. Z and Ex. A-1. However, this 1926 data taken from and near mined out portions of

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the Portland Mine (Ex. Z), even if accepted as accurate of current conditions of the un-mined rock between the El Paso Shaft and Roosevelt Tunnel portal, shows possible sulfate levels only in the range of 341 ppm to 913 ppm. These sulfate levels are not high enough to account for the consistently higher sulfate concentrations measured at the Roosevelt Tunnel Portal. Ex. 87. Therefore, even using Defendant's background granite sulfate data, at least some of the sulfate discharging from the Roosevelt Tunnel portal originates at the El Paso Shaft. 53. Dr. Maest also evaluated whether a significant quantity of water could exit the tunnel by exfiltration from the floor of the Roosevelt Tunnel. Dr. Maest discovered that the granite of the tunnel floor is relatively impermeable and was only expected to infiltrate about 1 inch of water per year. Ex. 91, 5 pages from the back ("hydraulic conductivity of granite= 0.1 ft/yr"). See also, Ex. 90, Bates 1703 ("The granitic rock is known to be of low hydraulic conductivity...The transit time required for this flow to move from the ground surface to the Carlton Tunnel is expected to be hundreds to thousands of years".) Dr. Maest's opinions regarding the relative impermeability of the granite in the floor of the Roosevelt Tunnel was supported by the testimony of Dr. McCord. See also, Exhibit 103 (2nd page of exhibit). This conclusion is supported by the repeated reports of water depth in portions of the tunnel up to 31/2 feet deep, thus indicating that the tunnel floor was capable of ponding water and thus relatively impermeable. Ex. B (last 10 pages of exhibit). Moreover, Kenneth Klco testified that he did not observe any fractures in the floor of the tunnel that would result in a significant loss of water through exfiltration. Testimony of Kenneth Klco.

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54.

Based on its numerous inspections of the Roosevelt Tunnel over a period of nearly ten years, CC&V concluded "the flows observed at the Roosevelt Tunnel portal are emanating from the El Paso Shaft." Ex. 16, p. 1.

55.

On July 19, 2001, the WQCD issued a Memorandum concluding that "the primary source contributing base flow to the tunnel's discharge comes from the El Paso shaft which drains the underground mine workings of the El Paso and connecting mines, and the water produced from factures in the tunnel". Ex. 63, p. 2. Testimony of David Akers.

56.

The WQCD's June 28, 2002 permit denial to RTLLC states "[t]he Division and Region 8 of the Environmental Protection Agency have been investigating sources of water that is discharged from the Roosevelt Tunnel and, based upon available information, both agencies have determined that the El Paso shaft, a vertical mine shaft owned by El Paso Gold Mines, Inc. contributes the majority flow in the discharge." Ex. 19, p. 1. Testimony of David Akers. b. Pollutants from the El Paso shaft reach the portal and Cripple Creek

57.

El Paso admits that representatives of AngloGold (Colorado) Corporation have collected water quality samples of the flow of the Roosevelt Tunnel portal into Cripple Creek. Ex. 3, p. 2, ¶6.

58.

El Paso also admits that flows from the Roosevelt Tunnel portal to Cripple Creek contain zinc and manganese. Ex. 3, p. 2, ¶6.

59.

EPGM's October 12, 2001 discharge permit application to the WQCD contains water quality sampling results from the Roosevelt Tunnel portal ("RT") which were

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collected and analyzed by the Cripple Creek and Victor Gold Mining Co. ("CC&V"). Ex. 13, Bates 213-233. 60. On May 13, 1994 the CC&V conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed a sample of water from the El Paso Shaft ("RT-El Paso") flowing into the Roosevelt Tunnel, the results of which are found at Trial Exhibit 23. 61. On October 23, 1996 the CC&V conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed a sample of water approximately half way between the Roosevelt Tunnel portal and the El Paso Shaft ("RT-Cave in"), the results of which are found at Trial Exhibit 23. 62. On November 16, 2000 the CC&V conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water from the floor of the Tunnel at the following locations: 1) approximately 700 feet in from the portal ("RT-1"); 2) approximately 6000-8000 feet in from the portal ("RT-2"); and at the El Paso shaft ("El Paso"), the results of which are found at Trial Exhibit 24. CC&V also took videotape of the November 16, 2000 Roosevelt Tunnel interior inspection which is found as Trial Exhibit 43. 63. On August 7, 2001 the CC&V conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water samples from the Tunnel at the following locations: 1) from the El Paso shaft ("El Paso Shaft") and 2) at Roosevelt Tunnel portal from the El Paso shaft ("RT"). The water quality analytical results of this event are found at Trial Exhibit 60.

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64.

Dr. Maest testified that precipitation comes in contact with water rock at the El Paso mine which causes a chemical reaction in which metals in the rock are oxidized causing high concentrations of dissolved metals, low pH, and high sulfate concentrations. Testimony of Dr. Maest. The process which results in the production of acid mine drainage is found at Trial Exhibits 76 and 107. Dr. Maest's testimony regarding the formation of acid mine drainage is supported by scientific reference papers at Trial Exhibit 98.

65.

Dr. Maest reviewed water quality sampling results from 4 different occasions taken of water discharging from the El Paso shaft into the Roosevelt Tunnel. Ex. 23 ("RT-El Paso 5/13/1994") & ("RT-El Paso 10/14/1994"); Ex. 24 ("El Paso 11/16/00"); Ex.60 ("El Paso Shaft 08/07/01). Based on this sampling results, Dr. Maest was able to characterize the water discharging from the El Paso shaft as acid mine drainage-- acidic water containing high concentrations of dissolved metals (zinc, manganese, and aluminum) and high sulfate concentrations. Testimony of Dr. Maest.

66.

Dr. Maest also analyzed the water quality characteristics of water seeping into the Roosevelt Tunnel from the un-mined granite between the El Paso shaft and the Roosevelt Tunnel. For example, Dr. Maest analyzed a water quality sample taken on October 14, 1994 from water seeping into the Roosevelt Tunnel from the un-mined granite between the El Paso shaft and the Roosevelt Tunnel. Ex. 23 ("RT- EP4000 10/14/1994") and Ex. 16, Bates 291 ("granite" column which is same data as in Ex. 23). Dr. Maest characterized this seepage from the granite as being "clean water" neutral in pH, low in dissolved metals and low in sulfate. Testimony of Dr. Maest.

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Dr. Maest also analyzed other background water quality data collected from un-mined areas of the Cripple Creek Mining District. Ex. 61 ("Baseline Water Quality Data, Exhibit 61"). This data also showed that the background water quality was neutral in pH, low in dissolved metals, and low in sulfate. 67. Finally, Dr. Maest's also reviewed water quality data from the water discharging from the Roosevelt Tunnel portal into Cripple Creek. Ex. 13, Bates 213-233; Ex. 61 ("Roosevelt Tunnel Portal Sulfate Data 6/14/1991 to 5/23/2001"); Ex. 53, p. 11 (U.S. EPA sample on 9/19/01 at the Roosevelt Tunnel portal "RT-1"); Ex. 65 (monthly Roosevelt Tunnel portal water quality data from April 2001-May 2002). There is approximately six years of monthly water quality data from the Roosevelt Tunnel portal (Ex. 13, Bates 213-233 and Ex. 65) and almost ten years of sulfate water quality data (Ex. 61 ("Roosevelt Tunnel Portal Sulfate Data 6/14/91 to 5/23/2001"). 68. Dr. Maest concluded that there are only two sources of water discharging at the Roosevelt Tunnel portal--water discharged from the El Paso shaft into the Roosevelt Tunnel and water seeping into the Roosevelt Tunnel from the un-mined granite between the portal and the El Paso shaft. Testimony of Dr. Maest. Dr. Maest concluded that the chemical signature of the water discharging from the portal is at least in part from the water discharging into the Roosevelt Tunnel from the El Paso shaft. Testimony of Dr. Maest & Ex. 16, Bates 291. The pollutants found in the water seeping into the tunnel from the un-mined granite does not contain high enough concentrations of zinc, manganese, aluminum, or sulfate to account for the concentrations of these pollutants found at the Roosevelt Tunnel portal discharge to

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Cripple Creek. Testimony of Dr. Maest. Ex. 113 (illustrating that zinc and manganese concentrations at RT-1 on 11/16/00 are above the expected concentration of these metals from the granite). See also, Ex. 16, Bates 291. 69. Dr. Maest opined that at least some of the pollutants discharged from the El Paso shaft into the Roosevelt Tunnel reach the Roosevelt Tunnel portal and Cripple Creek. Sulfate is a pollutant. Testimony of Dr. Maest. Testimony of David Akers. The State of Colorado Water Quality Control Division ("WQCD") regulates sulfate as a pollutant. Testimony of David Akers. The State of Colorado has a water quality stream standard for sulfate which is 200 ppm. Testimony of David Akers. As noted above, Dr. Maest testified that at least some of the sulfate discharged at the Roosevelt Tunnel portal into Cripple Creek is from the El Paso shaft. Ex. 78 (page 2) and Ex. 87. 70. Dr. Maest also testified that zinc, manganese, pH, and aluminum discharged from the El Paso shaft into the Roosevelt Tunnel reaches the Roosevelt Tunnel portal and Cripple Creek. Again, the El Paso shaft delivers acidic water with high concentrations of dissolved zinc, manganese, and aluminum into the Roosevelt Tunnel. The concentrations of these dissolved metals are much lower in the water seeping into the Tunnel from the un-mined granite between the El Paso shaft and the Roosevelt Tunnel portal. The occasional high concentrations of these dissolved metals at the Roosevelt Tunnel portal cannot be explained by the relatively clean water seeping into the tunnel from the un-mined granite. Dissolved metals will tend to stay in solution and travel with the water flow down the tunnel from the El Paso

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shaft to the portal. Testimony of Dr. Maest. While the high concentrations of dissolved metals from the El Paso shaft are diluted by the relatively clean seepage from the granite, these metals are not completely eliminated as they flow from the El Paso shaft to the Roosevelt Tunnel portal. During periods of high flow, the majority of the flow will be coming from highly fractured rock, such as the El Paso mine as opposed to the relatively impermeable granite. Testimony of Dr. Maest. During periods of high flow, zinc concentrations increase with flow suggesting that the El Paso mine contributes high concentrations of dissolved zinc and other metals to the Roosevelt Tunnel and some of these dissolved metals discharge at the portal into Cripple Creek. The fact that increased flow at the portal is associated with a corresponding increase in zinc concentrations is illustrated in Trial Exhibit 86. 71. The concentrations of some of the metals and pollutants discharged from the El Paso shaft into the Roosevelt Tunnel are reduced by a combination of dilution, adsorbtion, and precipitation as these metals move with the water flow down the Roosevelt Tunnel. The reduction in concentration of some metals and pollutants is illustrated in Trial Exhibits 77, page 2 (neutralization of pH and increased alkalinity from El Paso shaft to portal); Exhibit 78 page 2 (dilution of sulfate from El Paso shaft to portal); Exhibit 108 (showing processes of adsorbtion and precipitation); Exhibit 109 showing reductions in concentrations of sulfate, zinc, and manganese between the El Paso shaft and the portal); Exhibit 113 (showing reduction of zinc and manganese between the El Paso shaft and RT-1 but concentrations at RT-1 still above the concentrations expected from the granite). Dr. Maest's opinions regarding the reduction of

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concentrations of metals and pollutants by the combination of dilution, adsorbtion, and precipitation are supported and explained by scientific reference papers. Ex. 100 and Ex. 105. 72. The WQCD completed a water quality assessment to determine the effluent limitations that would be imposed for the discharge from the Roosevelt Tunnel in order to protect water quality standards in Cripple Creek. Ex. 19, p. 1. The WQCD concluded that the discharge from the Roosevelt Tunnel , if untreated, would cause exceedences of water quality standards in Cripple Creek. Ex. 19, p. 1. For example, the WQCD concluded that the concentrations of zinc in the discharge from the Roosevelt Tunnel have frequently, and significantly, exceeded the limits that would be imposed in a permit to protect the water quality standard for zinc. Ex. 19. p. 1. The WQCD also concluded that there were cases where the discharge from the Roosevelt Tunnel was exceeding the limit to be imposed in a permit for manganese. Ex. 19, p. 2.

Dated: February 26, 2007

Respectfully submitted by, s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738

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John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE I do hereby certify that on this 26nd day of February, 2007 a true and accurate copy of PLAINTIFFS' PROPOSED POST-TRIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ Jeffrey Parsons __________________________ Jeffrey Parsons

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