Free Trial Brief - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. _____________________________________________________________________________ EL PASO'S POST TRIAL BRIEF _____________________________________________________________________________ El Paso Properties, Inc. ("El Paso"), by counsel, respectfully submits this Post Trial Brief pursuant to the Court's February 9, 2007 Minute Order (Doc. # 240) and bench order. FED. R. EVID. 702, which governs the admission of expert testimony, requires that (1) the expert be qualified to provide the testimony; (2) the expert's testimony be based on sufficient facts or data; (3) the testimony be the product of reliable principles and methods; and (4) the expert apply the principles and methods reliably to the facts of the case. The proponent of the testimony bears the burden of proving that the expert's opinions satisfy the criteria set forth in Rule 702. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 978 n. 4 (10th Cir. 2001). The sole issue presented in this case is whether pollutants entering the Roosevelt Tunnel from the El Paso shaft are transported to the tunnel portal and discharged into Cripple Creek. In

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support of their claim, Plaintiffs relied on the testimony of a single expert witness, Dr. Ann Maest, admitted as an expert in the fields of geochemistry and pollutant fate and transport.1 The evidence at trial proved that Dr. Maest did not reliably apply scientifically accepted methodologies to the limited facts and data related to the source of pollutants exiting the Roosevelt Tunnel portal. At trial, Dr. Maest admitted that she spent approximately five hours of time spread over three days on her fate and transport analysis that formed the basis for her June 2002 expert report. In response to questioning from the Court, Dr. Maest testified that she performed her work without generating a single diagram, note, graph or table, explaining that she did the analysis in her head. Dr. Maest also testified that she read thousands of pages of documents before signing her report, including eight three-ring binders of technical material that comprise the Amendment 8 application submitted to Colorado by the Cripple Creek & Victor Gold Mining Company ("CC&V"). Dr. Maest admitted that Mr. Barth prepared the initial draft of her report, which she characterized as simply a "summary" of her fate and transport analysis, and that Mr. Barth provided her with all of the documents upon which she relied in reaching her conclusions. Dr. Maest did not perform any field investigation or even review the video of CC&V's November 16, 2000 Roosevelt Tunnel entry prior to reaching her conclusions. Asked whether she would offer her report in this case for peer review, Dr. Maest responded: "Certainly not." Four and a half years after the initial expert disclosures were originally due in this case, Dr. Maest produced
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Plaintiffs initially endorsed three experts, but withdrew Kenneth Klco and Robert Burm as expert witnesses after District Court Judge Marcia Krieger excluded opinion testimony from them in the CC&V case.
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some eighteen new charts, graphs and diagrams, including three drawings that she identified at trial as the basis of her conceptual model. Plaintiffs tried to justify Dr. Maest's lack of time spent and work product by arguing that the issue presented in this case was so simple and straightforward that no additional work was necessary. However, the evidence adduced at trial conflicts with Dr. Maest's claim that the Roosevelt Tunnel's hydrogeological setting is "simple." The Roosevelt Tunnel is a more than 14,000-foot mine drainage tunnel drilled through fractured rock roughly one hundred years ago. Dr. Maest admitted on cross examination that her conceptual model shows only a portion of the larger geologic and hydrologic setting in which the Roosevelt Tunnel is situated, that geologic units other than those shown may be present in the study area, and that the geologic units are not uniform and contain varying levels of mineralization. Dr. Maest acknowledged that the Roosevelt Tunnel lies below or along surface water sources of contamination including Arequa Gulch and Cripple Creek, that water can both infiltrate into and exfiltrate from the Roosevelt Tunnel along its length, and that the extent of fractures causing inflows and outflows is unknown. There is no question that water is flowing out of the tunnel's floor, in large part due to the hydraulic influence of the Carlton Tunnel, a mine drainage tunnel excavated below the Roosevelt Tunnel in the 1940s. In addition, rockfall and other debris causes ponding of water and contributes to fluctuations in flow along the length of the tunnel. Dr. Maest's failure to acknowledge the hydrogeological complexity of the Roosevelt Tunnel undermines the reliability of her opinions and conclusions.

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Regarding the "hydrologic connection" between the El Paso shaft and Roosevelt Tunnel portal, Dr. Maest's primary methodology was to assume that such a connection must exist through the tunnel itself. In support of her assumption, Dr. Maest relied on the one-time observations of Kenneth Klco, who entered the tunnel on August 21, 2001, and a series of memoranda prepared by CC&V employees in anticipation of litigation describing inspections that took place years earlier. Those reports of observations are unreliable. Mr. Klco's objective in entering the tunnel was not to study the portal to El Paso shaft reach but rather to traverse into the tunnel as far beyond the El Paso shaft as possible. The entry team did not stop on the way in between portal and the El Paso shaft, did not take any photos, samples or measurements, and did not conduct any tests. Observation conditions within the tunnel were poor: the only light sources were the headlamps of the entry team and Mr. Klco could not even identify the individuals who were in front of or behind him inside the tunnel. The entry party churned up the water, sometimes waist deep, through which it passed, and it was often impossible to see the floor of the tunnel itself. Confirming the hazards of relying on visual observations, Robert Brogden and Dr. O'Hayre opined that visual observation of water flows is not a reliable method of quantifying such flows and is not acceptable to scientists. Dr. Maest stated that there is "no evidence of all flows exiting the tunnel" and claimed that exfiltration is somehow "minimized" through precipitation (although she admitted that she has never studied or measured exfiltration in the Roosevelt Tunnel). In response to a question from the Court, however, Dr. Maest admitted that the extent of fractures within the Roosevelt Tunnel causing exfiltration is "unknown."

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It is undisputed that there have been no reliable flow measurements taken inside the Roosevelt Tunnel by scientifically accepted methods such as recording weirs or pygmy meters. Dr. Maest apparently disregarded the 1995 Inspection Report prepared by Colorado state inspector Tom Boyce, which is attached twice to her report. That report contains a graphic description of Roosevelt Tunnel water flows fluctuating "in dozens of locations" between fifteen gallons per minute and two gallons per minute in the reach between the El Paso shaft and the portal. Dr. O'Hayre and Mr. Brogden both testified that accurate flow measurements would be essential to explain reports of fluctuating flows in the Roosevelt Tunnel. The water measurements shown in Plaintiffs' Exhibit 43 illustrate Mr. Brogden's testimony that flows within the Roosevelt Tunnel fluctuate. Mr. Brogden used the admittedly rough and limited flow measurement data shown in the video to evaluate water flows in the tunnel interior, unlike Dr. Maest who did not even review the video prior to reaching her conclusion. Despite Plaintiffs' vigorous cross-examination and rebuttal of Defendant's Exhibit V, that single page document (even with disclaimers of reliability from Mr. Brogden) reflects more quantitative analysis and application of scientific methods than the entirety of Dr. Maest's report. Plaintiffs offered eleven scientific articles into evidence at trial as post-hoc principles and methodologies supporting Dr. Maest's conclusions. However Dr. Maest presented no analysis actually applying these principles and methods to the facts and data of this case in a manner helpful to the Court. Dr. Maest testified that she analyzed the "chemical signature" of El Paso shaft water, portal water and granite inflows and used sulfate as a natural tracer in drawing her

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conclusions. Notably, neither the phrase "chemical signature" nor "natural tracer" appear anywhere in Dr. Maest's June 2002 expert report. Dr. Maest testified that El Paso shaft water is "dirty" and carries the chemical signature of acid mine drainage, that water flowing into the Roosevelt Tunnel from seeps in the surrounding granite is naturally "clean" and free of pollutants, and that water flowing from the tunnel portal appears to be a mixture of these two sources of water. However, Dr. Maest stated in her report that El Paso shaft water "joins other contaminated water" and admitted that the pollutants at issue in this case are naturally occurring. Dr. Maest used only one sampling result to characterize the so-called "clean" water taken from granite seeps, a data point for a sample taken by CC&V on October 14, 1994 and reported as "RT-EP-4000." Dr. Maest used this lone sampling point to indicate on her graphs and charts that the natural background level of sulfates in water from the granite seeps is 76 parts per million. During Plaintiffs' rebuttal case, Dr. Maest testified for the first time that she also relied on sampling results taken from monitoring wells in the area to support her conclusions about background sulfate levels. The site description for the "RT-EP-4000" sampling point is "Roosevelt Tunnel approximately 4000' towards portal from El Paso shaft." Dr. Maest testified that she assumes that the "RT-EP-4000" sample was taken from a granite seep based upon: (1) a June 2001 presentation by CC&V's lawyers to federal and state regulators made with the goal of eliminating the need for CC&V to obtain a discharge permit for the Roosevelt Tunnel; and (2) the deposition transcript of a CC&V employee taken in the course of Plaintiffs' litigation against CC&V. Dr. Maest assumed that samples "RT-EP-2000" and "RT-EP-3000" were taken from

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water flowing on the floor of the tunnel but could not explain why the site descriptions for all three sampling results are identical (except for the distance from the shaft). El Paso's expert Dr. O'Hayre pointed out that Dr. Maest ignored data that was included in reports provided to her by Mr. Barth. Attached to Dr. Maest's expert report is a May 26, 1995 letter from CC&V employee John Hardaway to the Colorado Department of Public Health and Environment reporting the results of a study that found a greater percentage of high zinc levels in granite as compared with the diatreme. Mr. Barth also provided Dr. Maest with two pages excerpted from a U.S. Geological Survey report entitled "Rock Strata Gases." Dr. O'Hayre pointed out that the "Rock Strata Gases" article includes data from sampling locations specifically described as seeps in the granite within the Roosevelt Tunnel (but not in the pages Mr. Barth provided to Dr. Maest), and that those results show much higher sulfate concentrations than the one sample relied upon by Dr. Maest. Defendant's Exhibit Z at 47. Dr. Maest dismissed these data during Plaintiffs' rebuttal case arguing that these samples must have been taken from the diatreme because they did not "fit her expectations." Dr. Maest also disregarded sampling data that contradicted her conclusions. It is undisputed that only ten relevant water quality samples have been taken from the interior of the Roosevelt Tunnel since 1994. Four of those samples were taken from water flowing out of the base of the El Paso shaft, while six were taken at different locations between the shaft and the portal. Of the six samples, three were taken on October 14, 1994 at locations identified as 2000', 3000' and 4000' from the El Paso shaft. As discussed above, Dr. Maest used the 4000' sample as a granite seep sample and disregarded the other two results--all of which contained levels of

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zinc falling within the range of natural background levels identified by Dr. Maest (5 to 25 parts per billion). The remaining three interior samples were taken on October 23, 1996 (collected near the intermediate shaft) and on November 16, 2000 (collected 700' and 6000' to 8000' from the portal). It is not scientifically reliable to draw conclusions about the source of pollutants exiting the Roosevelt Tunnel portal based on six questionable samples collected on three days spread across a six-year period, particularly in the absence of reliable flow data, solid sampling results and other scientific information regarding tunnel inflows and outflows. Dr. Maest disclosed for the first time at trial that she relied on sulfate as a "natural tracer" in determining that pollutants from the El Paso shaft are discharged from the Roosevelt Tunnel portal. However, Dr. Maest testified that sulfate is in fact one of four pollutants that she believes originate from the El Paso shaft, along with zinc, manganese and aluminum (which was mentioned for the first time by Plaintiffs on day three of trial). Dr. Maest offered no explanation or basis for using an alleged pollutant as a tracer to prove the origin of that very pollutant. Dr. O'Hayre testified that experts in the field of pollutant fate and transport develop empirical expressions of their conceptual models, even in a simple setting, in order to test the model against real world facts and data. Dr. O'Hayre also explained why the Roosevelt Tunnel is not a simple setting hydrologically or geochemically. He stated that Dr. Maest's work in this case would not withstand peer review because it is fraught with generalizations and a reviewer cannot determine from any of her work product how she reached her conclusions. Dr. O'Hayre warned that reaching conclusions early in a scientific inquiry may bias the investigator, as can scientists' reliance solely on lawyers to select and edit their information sources.

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Dr. O'Hayre testified that when faced with data contradicting a conceptual model, scientists must either obtain more data to resolve the inconsistencies or else change the conceptual model to fit the actual data, and that Dr. Maest did neither of these. Dr. O'Hayre stated that scientists do not reach conclusions without generating written work, that scientific reports do not contain conclusions that are unsupported by facts and data, methods and analysis, that a fate and transport analysis cannot be performed in three days or five hours, and that a three and one half page fate and transport analysis report would not pass muster in the profession. Plaintiffs failed to rebut Dr. O'Hayre's testimony regarding Dr. Maest's methods. Dr. Maest's methodologies do not comport with the scientific method. She drew her conclusions first, and then set about to find evidence to support those conclusions. Even though very little data was available, Dr. Maest did not collect additional data and instead simply disregarded any evidence (such as the Boyce Inspection Report and the in-tunnel water quality data) that contradicted her conceptual model and conclusions. Dr. Maest's report does not discuss, explain or even acknowledge the existence of data contradicting her conclusions. Dr. O'Hayre testified that reliable methods for determining the source of pollutants in the Roosevelt Tunnel discharge exist and are commonly used within the field of pollutant fate and transport. Specifically, Dr. O'Hayre testified that a scientific study of the Roosevelt Tunnel would require use of an artificial tracer accompanied by synoptic water quality sampling and accurate flow measurements obtained using recording weirs or similar devices. Two previous tribunals have determined that the facts and data relied upon by Dr. Maest here are insufficient to prove that the El Paso shaft is the source of pollutants in the Roosevelt

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Tunnel discharge. In its 2005 opinion herein, the Tenth Circuit Court of Appeals commented on Plaintiffs' failure to explain scientifically the dramatic changes in zinc levels in the water samples taken in the tunnel between the El Paso shaft and the portal. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005). Likewise, Colorado Administrative Law Judge Matthew Norwood noted the State of Colorado's failure to explain this same data in ruling that the State had failed to prove its case against El Paso. Plaintiffs' Exhibit 15 at 12 (Conclusion of Law 3). Dr. Maest's only explanation for this October 14, 1994 in-tunnel water quality data was that it is an "anomaly" and should be disregarded. For the reasons stated herein and based upon the evidence at trial, El Paso respectfully asks the Court to rule that Plaintiffs' have failed to carry their burden of proving that Dr. Maest's opinions are admissible under FED. R. EVID. 702 and that therefore Plaintiffs have failed to meet their burden of proving a violation of the Clean Water Act, enter judgment in favor of El Paso, award to El Paso its reasonable costs and attorney fees incurred in defending against Plaintiffs' lawsuit as allowed by law, and enter such other relief as may be just and appropriate. Respectfully submitted this 26th day of February, 2007. _s/ Stephen D. Harris________ James L. Merrill, #9466 Stephen D. Harris, #24178 Michael J. Gustafson, #37364 MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, CO 80903-3300 Telephone: (719) 633-4421 Facsimile: (719) 633-4759 Counsel for El Paso Properties, Inc.
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing EL PASO'S POST TRIAL BRIEF was sent electronically via ECF this 26th day of February, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 [email protected] Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302 [email protected] __s/ Sarah D. White__ Sarah D. White, Staff Assistant

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