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 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 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ______________________________________________________________________________ El Paso Properties, Inc. ("El Paso") respectfully submits these Post Trial Proposed Findings of Fact and Conclusions of Law pursuant to the Court's February 9, 2007 Minute Order [Doc. # 240] 1 and bench order. I. Procedural History 1. Act"). 2. The parties have consented to determination of this case by a United States This is a citizen suit under the Clean Water Act, 33 U.S.C. §§ 1251-1387 ("the

Magistrate pursuant to 28 U.S.C. § 636(c). 3. The issues before the Court are: (a) whether El Paso is liable for the presence of

pollutants in the seasonal flow of water from the Roosevelt Tunnel portal into Cripple Creek; and, if so (b) the appropriate remedy.2

1

Pleadings filed in this case will be cited by docket number.

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4.

In the Complaint, Plaintiffs requested preliminary and permanent relief "enjoining

[El Paso] to fully and completely comply with all terms of the Act and [its] regulations." [Doc #1 at 10]. Plaintiffs did not seek preliminary injunctive relief pursuant to FED. R. CIV. P. 65. 5. On December 17, 2001, El Paso moved to consolidate this case with Sierra Club

v. Cripple Creek & Victor Gold Mining Co. ("the CC&V case"), Civil Action No. 00-WM2325,3 on the grounds that each case contained an identical Roosevelt Tunnel "discharge without a permit" claim by the same plaintiffs. [Doc #4]. The Court initially denied El Paso's Motion on January 16, 2002 [Doc # 14] and denied El Paso's amended motion to consolidate [Doc #35] on July 10, 2002 [Doc # 70] and September 13, 2002 [Doc # 78]. District Court Judge Marcia Krieger also denied El Paso's motion to consolidate on March 26, 2002. 6. On April 11, 2002, the Court denied El Paso's December 17, 2001 motion to

dismiss or stay this litigation in deference to the Colorado Water Quality Control Division ("WQCD"), which has primary authority under delegation from the U.S. Environmental Protection Agency ("EPA") for administering the Act's National Pollution Discharge Elimination System ("NPDES") permit program in Colorado. [Doc # 46, 47]. 7. On June 11, 2002, Plaintiffs sought leave under FED. R. CIV. P. 34 to enter the

Roosevelt Tunnel "for the purpose of conducting an inspection." [Doc # 60 at 1]. On June 24, 2002, the court overruled El Paso's objections and granted Plaintiffs' motion in part. [Doc # 63].
2

If the Court finds that Plaintiffs have proven liability, El Paso requests permission to address issues concerning the appropriate remedy through written briefing and oral argument. 3 Now numbered 00-cv-02325-MSK-MEH and consolidated with 01-cv-02307-MSK-MEH. EL PASO'S POST TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 2

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8.

El Paso deposited a key to the Roosevelt Tunnel portal (obtained from the U. S

Bureau of Land Management, which controls the portal) with the Clerk of Court. [Doc # 64]. Despite gaining such access, Plaintiffs never conducted any interior inspection or scientific study of the Roosevelt Tunnel during this case before the close of discovery on August 20, 2002 and never offered any reasons for declining to do so. 9. El Paso sought reconsideration of the Court's April 11, 2002 order denying its

motion to dismiss or stay on August 7, 2002. [Doc # 74]. The Court denied El Paso's motion for reconsideration on September 13, 2002. [Doc # 78]. 10. On September 20, 2002, Plaintiffs and El Paso filed motions and supporting briefs

seeking summary judgment. [Docs # 79-82]. The Court heard oral argument on the cross motions for summary judgment on November 4, 2002. [Doc # 93]. 11. On November 15, 2002, the Court granted Plaintiffs' Motion for Summary

Judgment on standing and liability and denied El Paso's Motion for Summary Judgment. [Doc # 95]. In its November 15, 2002 Memorandum Opinion and Order this Court found that "some" of the pollutants flowing from the Roosevelt Tunnel portal to Cripple Creek flow through the El Paso shaft. 12. 10, 2002. The Court conducted an evidentiary hearing regarding remedies on December 9-

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13.

The Court entered an order on February 10, 2003 [Doc # 111] directing El Paso to

pay a civil penalty of $94,900 to the federal treasury and apply to the WQCD for a discharge permit. Id. at 28. The Court entered judgment on the following day. [Doc # 112]. 14. El Paso filed a notice of appeal [Doc # 120] and moved to stay the relief entered

by the District Court [Doc # 121]. On April 21, 2003, the Court denied the motion to stay and ordered El Paso to post a surety bond of $50,000 to secure Plaintiffs' costs and attorney's fees on appeal [Doc # 135]. On May 2, 2003, the Court entered judgment awarding Plaintiffs' counsel $247,246.19 in attorney fees [Doc # 138]. 15. On August 24, 2005, the Tenth Circuit Court of Appeals reversed and remanded

based on its finding that genuine issues of material fact existed regarding whether constituents in water at the El Paso shaft are discharged from the Roosevelt Tunnel into Cripple Creek. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1151 (10th Cir. 2005) cert. denied, 26 S. Ct. 1653, 2006 WL 219374 (April 3, 2006) (No. 05933). 16. Plaintiffs filed a Petition for Panel Rehearing before the Tenth Circuit. The Tenth

Circuit declined to reevaluate the evidence but granted the petition "for the sole and limited purpose of correcting the dates when water samples were taken from the Roosevelt Tunnel portal." 17. On June 30, 2006, Plaintiffs moved to exclude the expert opinions of El Paso's

expert witness Robert Brogden [Doc # 180]. On the same day, El Paso moved to exclude the

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expert opinions of Plaintiffs' witnesses Kenneth Klco, Ann Maest and Robert Burm. [Doc # 178]. Both sides requested evidentiary hearings regarding these motions. 18. On June 30, 2006, Plaintiffs also filed a second Motion to Conduct Inspection of

Interior of Roosevelt Tunnel in order "to conduct water quality testing, solids sampling, flow measuring, photography, videotaping and dye testing." [Doc # 179 at 1]. The Court granted Plaintiffs' motion over El Paso's objections on August 10, 2006. [Doc # 194]. Plaintiffs neither entered the Roosevelt Tunnel nor conducted any of the scientific sampling or studies listed in Plaintiffs' motion. [Doc # 199]. Plaintiffs claimed to have recently learned of dangerous conditions within the Tunnel interior although it is clear from the testimony of Ken Klco at trial that Plaintiffs were well aware of such hazards as early as August 21, 2001. 19. Also on June 30, 2006, El Paso filed a Motion for Judgment Based Upon the

Doctrine of Collateral Estoppel [Doc # 177]. The Court denied the motion on August 10, 2006 [Doc # 196]. 20. On September 15, 2006, Plaintiffs moved in limine to exclude the testimony of

Dr. Arthur P. O'Hayre, whom El Paso had identified as a witness to testify in support of its FED. R. EVID. 702 challenge to the admissibility of testimony from Plaintiffs' witness Dr. Ann Maest. [Doc # 202]. On September 20, 2006, the Court denied Plaintiffs' motion. [Doc # 204, 205]. 21. On September 26, 2006, Chief Judge Lewis Babcock reassigned this case to

Magistrate Judge Boyd N. Boland. [Doc # 207]. On the following day, the Court vacated the previously scheduled Daubert hearings, the final trial preparation conference and trial date.
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[Doc # 209]. On October 17, 2006, the Court set this case for a five-day bench trial to commence February 5, 2007. [Doc # 214]. 22. On November 17, 2006, El Paso filed a Motion to Dismiss Plaintiff Mineral

Policy Center for lack of standing [Doc # 216]. The Court denied the motion on January 5, 2007 [Doc # 226]. 23. On January 30, 2007, El Paso filed a Motion for Sanctions under FED. R. CIV. P.

11 [Doc # 233]. The Court denied the motion without prejudice on February 1, 2007 [Doc # 234]. 24. On February 1, 2007, El Paso filed a Motion in Limine to Exclude Exhibits and

Testimony Not Disclosed Under FED. R. CIV. P. 26 [Doc # 235]. The Court took the motion under advisement after hearing oral argument on the first day of trial and subsequently denied the motion during the course of the proceedings [Doc # 236]. 25. 26. The Court conducted the trial from February 5 through February 9, 2007. During the second day of trial, Plaintiffs moved for an order that the issue of the

existence of a hydrological connection between the El Paso shaft and the Roosevelt Tunnel portal is the law of the case based upon the Tenth Circuit's decision. After considering oral argument, the Court denied the motion [Doc # 237]. II. Findings of Fact Based upon the evidence presented at trial and the stipulations entered into among the parties, the Court finds as fact:
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1.

Defendant El Paso Properties, Inc., formerly El Paso Gold Mines, Inc., owns

approximately 100 acres of mining claims and surface rights known as the El Paso Mine situated between the towns of Cripple Creek and Victor in Teller County, Colorado. Since El Paso's purchase of its property in 1968, it has never conducted any mining operations on its property or held a mining or exploration permit. 2. El Paso's property surrounds and includes the El Paso shaft, a vertical shaft that

descends from the land surface and connects underground to the Roosevelt Tunnel by a short "drift." The El Paso shaft was formerly used by miners to access various underground levels of the El Paso Mine. The crown of the El Paso shaft at the land surface is no longer open to the air due to a ground collapse that occurred decades ago. 3. The Roosevelt Tunnel is a man-made excavation constructed about one hundred

years ago in the Cripple Creek Mining District to drain underground mines of groundwater that was inhibiting mine development and operations. Despite its name, the structure is technically an adit. The point where the Roosevelt Tunnel exits the ground is referred to as the Roosevelt Tunnel portal, and lies adjacent to Cripple Creek at an elevation of approximately 8,100 feet above sea level. The intersection of the El Paso shaft with the Roosevelt Tunnel occurs at a point about 14,000 feet east of the portal. El Paso has no property interest in the Roosevelt Tunnel, although the U.S. Bureau of Land Management provided El Paso with a copy of the key to the locked gate at the tunnel. Multiple properties, including portions of El Paso's property, overlie, connect to and are drained by the Roosevelt Tunnel.
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4.

The Carlton Tunnel was excavated about sixty years ago at an elevation about

1,000 feet below the Roosevelt Tunnel for the purpose of draining groundwater in the Cripple Creek Mining District to a level below the Roosevelt Tunnel. 5. Cripple Creek and Victor Gold Mining Company ("CC&V") owns and operates a

gold mine adjacent to El Paso's property. A portion of CC&V's property is located above the Roosevelt Tunnel upgradient from the intersection of the tunnel with the El Paso shaft. Other vertical shafts and lateral tunnels interconnect the Roosevelt Tunnel with the ground surface and the Carlton Tunnel. CC&V's property is located above and within the main diatreme that provides most of the ore producing rock in the mining district. A diatreme, or caldera, is a volcanic intrusion into the surrounding rock. The diatreme begins at a point between 2000 and 3000 east of the El Paso shaft. El Paso's property lies outside the diatreme within the granite "country rock." Water travels through this rock only on preferential flow paths such as faults, fractures and places where the rock has been broken. By contrast, water can flow more easily within and through the diatreme. 6. Water flowing into, through and out of the Roosevelt Tunnel originates as

precipitation on the surface of lands within the Cripple Creek Mining District. Water has been observed on multiple occasions flowing from the base of the El Paso shaft into the Roosevelt Tunnel. 7. The experts testified that the origins of flows at the base of the El Paso shaft and

along the Roosevelt Tunnel have not been identified and could include interconnected mines,
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surface drainages such as Cripple Creek and Arequa Gulch and other tunnels and surface properties which overlie or do not directly overlie the area. 8. Water has been observed flowing into the Roosevelt Tunnel at rock faults and

fractures between the El Paso shaft and the portal. Dr. Maest and Dr. O'Hayre agreed that such inflows could be a source of constituents in the portal water flows. 9. Dr. O'Hayre and Mr. Brogden testified that the Roosevelt Tunnel loses water

from its floor and walls at fractures and faults along its length, meaning that inflows of water observed from both the El Paso shaft and fractures between the shaft and the portal may exfiltrate the tunnel before reaching the portal. 10. Dr. O'Hayre and Mr. Brogden testified that identifying the sources of water and

pollutants in the seasonal water flows from the Roosevelt Tunnel portal into Cripple Creek requires more information than is currently known. 11. During parts of most years, there is no water flow from the Roosevelt Tunnel

portal into Cripple Creek. 12. For ease of reference, Plaintiffs' theory that zinc and other pollutants in water

flowing from the base of the El Paso shaft into the Roosevelt Tunnel is conveyed two and one half miles through the Roosevelt Tunnel and discharged from the portal into Cripple Creek will be referred to as the "transport hypothesis." 13. David Akers testified that the WQCD has been investigating the Roosevelt

Tunnel discharge since 1994 or 1995.
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14.

Beginning in 1994, CC&V submitted monthly results of flow measurements and

water quality sampling taken at the Roosevelt Tunnel portal to the WQCD and the EPA. Plaintiffs' Exhibits 23, 24 & 65. 15. David Akers testified that EPA released CC&V from the obligation to monitor the

Roosevelt Tunnel in May, 2002. 16. In 2000, Plaintiffs herein sued CC&V for, among other claims, discharging

pollutants from the Roosevelt Tunnel portal into Cripple Creek without a Clean Water Act permit. 17. On July 19, 2001, George F. Moravec of the Colorado WQCD wrote a

memorandum to David Akers (also of the WQCD) regarding "Roosevelt Tunnel Hydrology" in which he reported that EPA and WQCD technical personnel: agreed that more work needs to be done before the responsible parties can be identified. The primary source contributing the base flow to the tunnel's discharge comes from the El Paso shaft which drains the underground mine working of the El Paso and connecting mines, and the water produced from fractures in the tunnel. The full extent of the underground mine working probably has not been mapped, and the effects of the workings on hydrology is uncertain because of the limited information. More information is needed about the underground working of the El Paso Mine and any other mines connected to the El Paso along with ownership. Plaintiffs' Exhibit 63 (emphasis supplied). 18. The WQCD memorandum specifically stated that installing a recording weir or

flow device in the tunnel would be helpful in determining the source of flows in the tunnel. The

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memorandum also stated that a detailed mapping of the water producing fractures would help in determining the sources of flow in the Roosevelt Tunnel. David Akers testified that the WQCD has not conducted any field work, investigation or sampling of the Roosevelt Tunnel discharge since July 19, 2001 when the above memoranda was prepared. The testimony at trial indicated that a recording weir or other flow measuring device has never been installed in the Tunnel nor have the water producing fractures ever been mapped. 19. Plaintiffs' representative Kenneth Klco entered the tunnel in August 2001,

accompanied by CC&V personnel, but the entry did not yield any scientifically reliable information. Mr. Klco did not take samples, make measurements of water quality or quantity, conduct tests, take photographs or make video or audio recordings at any point during his entry. His field notes made at the time reflect only the identities of the entry party members and air quality measurements taken during the entry. Conditions inside the Roosevelt Tunnel were dark and physically hazardous. Visibility in the Roosevelt Tunnel interior was poor because the only illumination was by headlamp and flashlight. Physical conditions inside the tunnel required Mr. Klco to devote his full attention to maintaining his footing often while wading through pooled water up to forty inches deep. Mr. Klco did not stop during his inbound traverse from the portal to the El Paso shaft, but was "constantly on the move" (as he characterized it) because his primary objective was to traverse as far into the Roosevelt Tunnel as physically possible. Mr. Klco's field notes prepared the day of the entry do not contain any scientific fact regarding the hydrology or chemistry of the Roosevelt Tunnel. Mr. Klco and the CC&V representatives exited
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the tunnel at emergency speed without stopping when oxygen levels began dropping and carbon dioxide levels began increasing almost three miles inside the tunnel. Mr. Klco's conclusions about the flows of water within the Tunnel are unreliable given the conditions under which they were made. 20. On June 3, 2005, the District Court in the CC&V case ruled that Mr. Klco (upon

whose report Dr. Maest's report states that she relied) "lacks sufficient qualifications to express opinions 1, 3, and 4, all of which pertain to an assessment of the source of water, path of transport of water, and destination of water through the Roosevelt Tunnel and into Cripple Creek." The District Court also found that Mr. Klco either had no methodology other than the expression of opinion based on visual observations or, if his methodology was to review documents and visually inspect the tunnel without conducting tracer tests, "that is not a reliable method customarily used by experts in the field in order to trace the flow of water in a fate and transport analysis." 21. Plaintiffs sent their 60-day notice of intent to sue El Paso on September 5, 2001

and commenced this action on November 5, 2001. 22. On July 25, 2002, the WQCD filed an administrative action against El Paso

regarding the Roosevelt Tunnel discharge by issuing a Notice of Violation and Cease and Desist Order ("NOV"). El Paso responded to the NOV on August 23, 2002 and requested a hearing. 23. The administrative case was tried to Colorado Administrative Law Judge

Matthew E. Norwood for four days commencing on January 22, 2003.
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24.

Plaintiffs herein filed a Request for Notice in the state case but did not attend or

participate in the four-day trial, during which expert witnesses for all parties were examined. El Paso's witnesses included Robert Brogden and Dr. O'Hayre. The WQCD's witnesses included EPA hydrologist Michael Wireman and WQCD employee David Akers. 25. The WQCD administrative proceeding adjudicated precisely the same factual

issue as Plaintiffs' Roosevelt Tunnel claim in the CC&V case and Plaintiffs' sole claim herein: whether constituents in water flowing from the El Paso shaft into the Roosevelt Tunnel travel 2½ miles to the portal and are present in the portal's seasonal flows into Cripple Creek, i.e., whether the transport hypothesis is true. 26. After hearing the evidence, Judge Norwood issued an Initial Decision finding that

the lack of scientific data was a crucial defect in the government's case: 29. * * * The experts were unanimous as to the need for accurate, scientific and generally accepted water flow measuring devices for the flow of water in the Roosevelt Tunnel. Yet neither Vardiman [a CC&V employee] nor anyone else has ever measured the flow of water in the Tunnel using such devices. 30. In addition to the lack of reliable flow measuring devices, the dramatic drop offs of zinc and manganese levels between the Shaft and the portal are not explained by objective scientific data. These drop offs have been detected on numerous occasions. 31. Because of the lack of scientific flow measuring devices and because of the unexplained drop offs in the levels of zinc and manganese from the Shaft to the portal, the ALJ finds as fact that there is insufficient evidence to find that [El Paso] is responsible for the zinc and manganese in the water at the portal.

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Plaintiffs' Exhibit 15 at 11 (emphasis supplied) 4. 27. Judge Norwood concluded as a matter of law: The Division [WQCD] has failed to prove that the zinc and manganese in the water coming out of the Roosevelt Tunnel has its origin in the El Paso Mine owned by EPGM. Reliable measuring devices to determine the flow of water in the Roosevelt Tunnel have not been used. This, along with the dramatic drop in zinc and manganese concentrations from the El Paso Shaft to the portal, casts sufficient doubt on whether any of the zinc and manganese tested at the portal is coming from the El Paso Mine. Id. at 12 (Conclusion of Law 3). 28. Like the WQCD's claim in the Colorado administrative case, Plaintiffs' case

herein rests on the transport hypothesis--that zinc and other pollutants in water flowing out of the El Paso shaft is transported two and one-half miles through the Roosevelt Tunnel and thence out of the portal into Cripple Creek. The experts agreed at trial that a pollutant fate and transport analysis of the Roosevelt Tunnel would have to be conducted to test this hypothesis. 29. Dr. Ann Maest was admitted as an expert in the fields of geochemistry and

pollutant fate and transport. Dr. Maest testified that she conducted a pollutant fate and transport analysis in reaching her opinions and conclusions in this case. Dr. Arthur P. O'Hayre was also

El Paso requests that the Court take judicial notice of Administrative Law Judge Norwood's Initial Decision in Case No. 2002-WQ-001. The Court may take judicial notice of this document pursuant to FED. R. EVID. 201(b)(2) because (1): the existence and contents of the document are not subject to reasonable dispute; and (2) the existence and contents of this document are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Judicial Notice may be taken at any time in a proceeding. FED. R. EVID. 201(f). The Plaintiffs will not be prejudiced if the Court takes judicial notice of this document because they are aware of the document's contents and identified it as Plaintiffs' Exhibit 15 for trial. EL PASO'S POST TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 14

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admitted as an expert in the fields of geochemistry and pollutant fate and transport. Dr. O'Hayre testified that that Dr. Maest did not have adequate facts or data upon which she could conduct a scientifically accepted fate and transport analysis or test her conceptual model. I find Dr. O'Hayre's testimony to be credible and unrebutted. 30. The experts agreed that information about the hydrogeologic setting must be

considered in a fate and transport analysis. Dr. O'Hayre testified that Dr. Maest did not have enough information about the hydrogeologic setting to conduct an adequate fate and transport analysis. Dr. O'Hayre testified that the information Dr. Maest relied upon regarding the hydrogeologic setting of the Roosevelt Tunnel was helpful but not sufficient by itself to conclude that the El Paso shaft is the source of contaminants exiting the tunnel. Dr. O'Hayre also testified that Dr. Maest ignored information about the hydrogeologic setting that conflicts with her opinions, such as the fact that the Carlton Tunnel acts like a well and likely draws groundwater through the floor of the Roosevelt Tunnel. Dr. O'Hayre testified that more information on the hydrogeologic setting is needed before a proper fate and transport analysis can be performed. 31. The experts agreed that source characterization, the process of identifying all

possible sources of pollutants, is an important component of a fate and transport analysis. In her expert report, Dr. Maest acknowledged that water from the El Paso shaft "joins other contaminated water," indicating that there are indeed other potential sources of pollutants in the Roosevelt Tunnel discharge.

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32.

At trial, Dr. Maest testified that there are only two sources of pollutants being

discharged from the Roosevelt Tunnel portal: "dirty" water coming from the El Paso shaft and "clean" water entering the tunnel through granite seeps. Dr. O'Hayre testified that there are other sources of pollutants, including at least one intermediate mining shaft halfway between the El Paso shaft and the portal that has been documented on numerous occasions. Dr. O'Hayre also testified and Dr. Maest agreed that the geologic setting of the Roosevelt Tunnel is not uniform in mineralization and that all of the pollutants at issue in this case also occur naturally in the area. Finally, Dr. O'Hayre noted that Dr. Maest failed to consider the possibility that pollutants were entering the tunnel from the creeks and drainages that are adjacent to or overlie the Roosevelt Tunnel. 33. Dr. O'Hayre testified that Dr. Maest did not have sufficient information to

determine the source of pollutants being discharged from the Roosevelt Tunnel or exclude the possibility that those pollutants might have natural origins. Although Dr. Maest relied on historical information in making assumptions about the types of minerals and mineralization that would likely occur in the El Paso Mine and shaft, Plaintiffs presented no facts or data specific to the materials found on El Paso's property. No sampling has ever been conducted to determine the mineralization potential of the waste rock pile at the mine's surface or the rubble inside the El Paso shaft, although the methods and techniques for conducting such tests are scientifically recognized and readily available. Dr. O'Hayre testified that there are more than two sources of

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pollution in the Roosevelt Tunnel and that more information on the potential sources is needed for a proper fate and transport analysis. 34. Dr. O'Hayre testified that artificial tracers are an accepted methodology that

would be a necessary component of an adequate fate and transport analysis of the El Paso shaft and Roosevelt Tunnel. Artificial tracers are constituents that are not found naturally in the water at that location, such as dye, bromide or lithium, that are added to the flow system such that the concentration can be calculated and measured at the addition point. Detection of the tracer along a potential flow path can be used to determine whether the flow path exists. For watercourses such as a tunnel, tracer studies can be used along with flow measurements to produce estimates of inflows and outflows along a particular segment. During oral arguments before the Tenth Circuit, Plaintiffs' counsel conceded that tracer studies "could establish with a high degree of certainty whether pollutants from the El Paso shaft are ultimately discharged at the portal." El Paso Gold Mines, Inc., 421 F.3d at 1151 n.9. Despite this acknowledgement, Plaintiffs have not conducted any artificial tracer studies. 35. Dr. Maest testified that the hydrologic or "transport" side of her fate and transport

equation was unimportant due to the simplicity of the hydrogeologic setting. 36. The Court received into evidence the testimony of Robert E. Brogden, admitted as

expert in hydrology and ground water geology with thirty years of experience. Mr. Brogden and Dr. O'Hayre both testified that accurate information about water flows is an essential part of a fate and transport analysis in any setting. In this case, flow measurements are necessary because
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there are an unknown number of locations where water is entering and exiting the Roosevelt Tunnel in the 14,000 feet that separate the shaft from the portal. Each source of water may contribute a different volume of water at a different rate containing differing levels of constituents. 37. Dr. Maest testified that she relied exclusively upon visual observations of flow

made by others in reaching her conclusions about the hydrological connection between the El Paso shaft and the Roosevelt Tunnel portal. Dr. Maest, Dr. O'Hayre and Mr. Brogden all agreed that visual observations may be unreliable and that devices such as flumes, weirs and pygmy meters are necessary to accurately measure flows. The visual observations made by Kenneth Klco are not reliable due to the circumstances under which they were made and Dr. Maest's reliance on them is unfounded. The visual observations contained in memoranda produced by CC&V employees in anticipation of litigation (the CC&V case) were in most cases created years after the inspections that they purport to document, and thus the Court finds that those observations are also unreliable. 38. Mr. Brogden testified that there is no single property which provides the entire

flow from the tunnel and that defining the exact contribution of overlying property owners to the flow from the Roosevelt requires more knowledge of the fracture patterns and actual movement of ground water than is currently known. Water flows within the Roosevelt Tunnel are dynamic and impossible to understand without quantitative flow data derived from the use of flow

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measuring devices such as flumes or weirs. No such flow data exists regarding the Roosevelt Tunnel. 39. It is beyond dispute that the Roosevelt Tunnel has inflows and outflows of water

along its length. This is known because of: (a) the geologic and geohydrologic setting, known as "fractured geology," in which the tunnel was constructed; (b) the well-documented observations of individuals who have inspected the tunnel; (c) the well-documented inflows of water into the tunnel; (d) field estimates of water flow within the tunnel by CC&V; and (e) David Vardiman's comments regarding water flows made at the time he was observing flows within the tunnel. 40. Dr. Maest speculated at trial that exfiltration through the floor of the Roosevelt

Tunnel may be limited by precipitation of constituents that may act to "seal" the floor. However, Dr. Maest did not present any scientific data to support her speculation. There has never been any sampling of solid precipitates on the floor of the Roosevelt Tunnel nor any studies or investigations to determine the amount of precipitation or the effect of precipitation on outflows. 41. Plaintiffs have not presented any flow measurement data Dr. Maest could have

relied upon in connection with her fate and transport analysis. Other than the crude measurements of water flow taken by CC&V on November 16, 2000 (as depicted in Plaintiffs' Exhibit 43), no other data exist regarding water flows within the Roosevelt Tunnel. Mr. Brogden made an attempt to quantify the flow measurements taken by CC&V using natural weirs. Although Mr. Brogden admitted that he had little confidence in the accuracy of these data and would not normally rely upon them in a fate and transport analysis, he produced the only flow
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data available and his results confirm a trend that other observers have reported: water flows vary significantly along the length of the tunnel. In light of data suggesting that flows are not constant, a scientist conducting a fate and transport analysis would make an effort to gather more data and information to discern what is truly happening to flows within the tunnel. 42. Due to the fractured geology and the dynamic water flow regime within the

tunnel, water flows at the portal do not necessarily indicate water flow conditions at any location within the Roosevelt Tunnel. This observation was corroborated by WQCD inspector Tom Boyce's May 1995 report of his inspection of the Roosevelt Tunnel. Plaintiffs have not offered any evidence whatsoever to rebut Mr. Boyce's or Mr. Brogden's conclusion. Since water flow conditions at the portal are not necessarily representative of flow conditions in the tunnel interior, it follows that concentrations of constituents in such portal flows are also not indicative of concentrations at other locations within the tunnel. Dr. Maest has acknowledged that portal flows include "other contaminated water" but has failed to identify the sources of such water or rule out the possibility that this water results from natural conditions or sources other than the El Paso shaft. 43. Mr. Brogden's opinion that more work is needed to identify the origins of the zinc

in the Roosevelt Tunnel discharge finds agreement in the July 2001 WQCD memorandum. Mr. Brogden's opinion is also supported by findings of fact entered by the Colorado ALJ in the state's administrative action against El Paso.

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44.

The existing water quality sampling data within the Roosevelt Tunnel is scant and

contradicts Dr. Maest's opinions and conclusions. El Paso concedes that water quality samples collected at the Roosevelt Tunnel portal sometimes contain measurable zinc and other pollutants. However, water does not flow out of the Roosevelt Tunnel during much of the year, such as during winter when any flows are frozen. When water does exit the portal, its pollutant concentrations appear to be highly variable, and some sampling data results have not detected the presence of any pollutants. 45. Since 1994, water samples have been collected inside the Roosevelt Tunnel on

only six days: May 13, 1994, October 14, 1994, May 26, 1995, October 23, 1996, November 16, 2000, and August 7, 2001. A sample was collected at the El Paso shaft during only four of these six sampling events. Samples were collected from the 14,000 feet of tunnel that separate the shaft and the portal during three of the six sampling events. The following findings discuss this data. 46. On May 13, 1994, a water sample collected at the El Paso shaft revealed the

presence of 2.1 parts per million ("ppm") of total recoverable ("TR") zinc. No samples were taken at the portal or between the shaft and the portal on that day. Plaintiffs' Exhibit 23. 47. On October 14, 1994, a water sample collected at the El Paso shaft revealed the

presence of 4.1 ppm of zinc TR. Id. No sample was taken at the portal on that day, but three samples were collected between the shaft and the portal. At a location 2,000 feet west of the shaft, the zinc concentration in water was 0.013 ppm. At 3,000 feet west of the shaft, the zinc
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concentration was 0.006 ppm, representing a 683-fold (or 99.85 %) reduction in less than one quarter of the distance from the El Paso shaft to the portal. At 4,000 feet west of the shaft, the concentration of zinc increased to 0.009 ppm. No other relevant samples were taken on that day. 48. On May 26, 1995, a water sample was collected east of the El Paso shaft; no

samples were collected at the portal, the El Paso shaft or between the shaft and portal. Id. 49. On October 23, 1996, a water sample collected at an intermediate shaft about

halfway between the El Paso shaft and the portal revealed 0.916 ppm of zinc TR. Id. A sample collected at the portal on that day did not indicate the presence of any zinc. Plaintiffs' Exhibit 19. 50. On November 16, 2000, a water sample collected at the El Paso shaft revealed the

presence of 2.34 ppm of zinc TR. Plaintiffs' Exhibit 24. At a location "approximately 6,000 to 8,000 feet from the Shaft," analysis of a water sample indicated 0.637 ppm of zinc TR. At a location identified as "approximately 700 feet east of the portal," a water sample revealed 0.197 ppm of zinc TR. No sample was collected at the portal on that day. 51. On August 7, 2001, a water sample taken at the El Paso shaft showed 2.63 ppm of

zinc TR. Plaintiffs' Exhibit 60. A water sample collected at the portal on that day indicated 0.056 ppm zinc, about 2% of the zinc concentration at the El Paso shaft. No samples were collected in the 14,000 feet of tunnel separating the shaft and the portal on that day. 52. The above findings of fact 45 through 51 summarize all available in-tunnel water

quality sampling data (with respect to zinc) that could have been considered by the expert
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witnesses in this case. The results for other relevant parameters (manganese, sulfates and aluminum) show similar dramatic changes that require explanation. 53. Dr. O'Hayre testified that a total of twelve sampling data points, collected at

seven different locations along a 14,000-foot underground tunnel on five separate days5 spanning a seven-year period, is insufficient data by which to conduct an adequate fate and transport analysis or draw scientific conclusions about the source of pollutants in water at the Roosevelt Tunnel portal. Dr. O'Hayre testified that synoptic sampling, the method of collecting water samples at a number of discrete locations along a stream or water course within a limited time period in order to analyze changes in water quality along the potential flow path, is an accepted methodology that is a necessary component of a fate and transport analysis. Instead of making an effort to collect more water quality sampling data to test her conceptual model, Dr. Maest simply relied on the scant data discussed above in reaching her opinions and conclusions in this case. 54. At trial, Dr. Maest admitted that she spent approximately five hours of time

spread over three days on her fate and transport analysis, which 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

Excluding May 26, 1995, when no relevant samples were collected at the shaft, the portal or at any location in between. EL PASO'S POST TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 23

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documents before signing her report, including eight three inch three-ring binders of technical material that comprise the Amendment 8 application submitted to Colorado by CC&V. 55. Dr. Maest signed her report for the Plaintiffs on June 20, 2002. The body of Dr.

Maest's report, received as Plaintiffs' Exhibit 21, is noteworthy in many respects: · The entire report narrative is three and one half pages in length; excluding introductory, "reservation of rights" and qualifications and compensation language, the language in the report actually discussing the Roosevelt Tunnel is only 1½ pages long; The report recites the same conclusion (that the transport hypothesis is true) at least five times (in the introductory paragraph, in paragraph 3 stated two different ways, in the last sentence of paragraph 4, and in the report's summary in paragraph 9) without any analysis, rationale or data reference whatsoever; The report does not discuss any water quantity or quality data for any parameter at any specific time or location, including the Roosevelt Tunnel interior sampling data described above. The report contains no numeric or quantitative discussion at all. It does not contain a single formula, equation, or tabulation of any scientific data; The report employs lay phraseology such as: "at least some", Exhibit 21 at 2, ¶ 3; "significant contributor", id. at 2, ¶ 4; "dissolve the metal salts much like sugar dissolves in tea", id. at 3, ¶ 6; "very high concentrations", id. at 3, ¶ 7; and "other contaminated water", id. at 3, ¶ 9; these type of phrases do not appear in Dr. Maest's other work; While acknowledging the existence of "other contaminated water" in flows from the Roosevelt Tunnel portal to Cripple Creek, the report does not discuss the origins of this "other contaminated water", distinguish the admittedly multiple flow sources of portal water, or quantify the portal constituent concentrations by source, id. at 3, ¶ 9; The report cites information sources that have been withdrawn by Plaintiffs and judicially discredited, including Kenneth Klco's "expert report." The court in the CC&V case found that Mr. Klco lacked sufficient qualifications to express expert opinions regarding the Roosevelt Tunnel and did not use reliable methodologies;

·

·

·

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·

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·

The report fails to discuss or even acknowledge the existence of data directly refuting its conclusions, such as sampling data from October 14, 1994 showing a 99.85% decrease in zinc concentrations in the first 3,000 feet downgradient from the El Paso shaft. Plaintiffs' Exhibit 23. Dr. Maest's failure to acknowledge and discuss scientific data refuting her conclusion is not an accepted practice within geochemistry and severely undermines the credibility of her opinions; The report lacks indicators of credible science such as maps of the region or local area, diagrams or schematic illustrations of concepts or processes, any graphs or comparisons of data, conceptual or quantitative models or even a list of references or attachments; and The report does not mention the methodologies that Dr. Maest claimed she used at trial, such as the analysis of a water sample's "chemical signature" or the use of sulfates as natural tracers. Dr. Maest prepared her report based on "one or two" discussions with Plaintiffs'

·

·

56.

counsel John Barth (and with no one else, including any technical expert). Mr. Barth wrote the first draft of Dr. Maest's report, which she characterized as a "summary" of her fate and transport analysis. Dr. Maest testified that she rewrote the report but did not change any of the conclusions written by Mr. Barth. Earlier drafts of Dr. Maest's report are not available. Mr. Barth also selected and delivered to Dr. Maest the attachments for her report. Many of these attachments appear to have little or no scientific value. 57. Dr. Maest's report does not describe any scientific technique or method or purport

to apply any method (scientific or otherwise) to facts and data. The report thus lacks sufficient information to allow the Court to perform a Daubert/Rule 702 analysis. 58. Many of the documents attached to Dr. Maest's report contradict her testimony

and conclusions. For example, Dr. Maest testified that there was "no evidence of all flows
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exiting the Tunnel" when in fact the report of the May 1995 Roosevelt Tunnel inspection by State Inspector Tom Boyce, which is attached to Dr. Maest's report twice, describes exactly this phenomenon. In addition, the in-tunnel water quality sampling conducted by CC&V on October 14, 1994 shows dramatic decreases in pollutant levels in water samples taken within the first 3000 feet west of the El Paso shaft. Dr. Maest cannot explain these changes and thus dismisses the data as "anomalous." 59. Dr. Maest also failed to acknowledge that the zinc levels in samples collected on

October 14, 1994 are within the range of values that she testified are "background" or natural levels of zinc found in water in the area. Dr. Maest testified that natural background levels of zinc in water in the Cripple Creek Mining District might be in the range of 5 to 25 parts per billion ("ppb"). The in-tunnel sampling on October 14, 1994 found zinc levels of 13 ppb, 6 ppb and 9 ppb at locations 2000', 3000' and 4000' west of the El Paso shaft, respectively. 60. Dr. Maest also testified that the background level of sulfate in the granite is 76

ppm based on her belief that the sample taken 4000' from the shaft was collected from a seep in the granite ceiling of the Roosevelt Tunnel. Dr. Maest's belief as to the location of this sampling point is based on her review of: (1) the column heading "GRANITE" on a chart prepared by CC&V under threat of government enforcement action; and (2) a deposition transcript from the CC&V case. Dr. Maest used only this one sampling result to characterize the so-called "clean" water taken from granite seeps, although she testified for the first time in Plaintiffs' rebuttal case

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that she also relied on sampling results taken from monitoring wells in the area to support her conclusions about background sulfate levels. 61. The sampling site description for Dr. Maest's background granite seep sample is

"Roosevelt Tunnel approximately 4000' towards portal from El Paso shaft." Dr. Maest assumed that the samples taken 2000' and 3000' from the shaft were collected from 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). 62. Dr. Maest ignored four sampling results specifically described as collected from

granite seeps and reported in a United States Geological Survey paper, selected portions of which were provided to her by Mr. Barth. Three of the samples were collected from granite seeps within the Roosevelt Tunnel and one from a granite seep in the Portland Mine; the results showed varying concentrations of sulfates between 341 ppm and 913 ppm (all of which are substantially higher than the 76 ppm level relied upon by Dr. Maest). Plaintiffs Exhibit Z at 47. 63. Dr. Maest also ignored data regarding the mineral concentrations in granite as

compared with concentrations in the diatreme that was included in a report provided to her by Mr. Barth. Attached to Dr. Maest's expert report is a May 26, 1995 letter from CC&V to WQCD reporting the results of a study that found a greater percentage of high zinc levels in granite than in the diatreme. 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.
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64.

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. 65. Dr. O'Hayre testified that it is neither customary nor accepted in the scientific

community of geochemistry or pollutant fate and transport for scientific reports to be drafted by lawyers or for the information considered by scientists to be selected and delivered by lawyers. 66. Dr. O'Hayre testified that scientific reports and analyses must acknowledge and

discuss existing relevant scientific data in the context of the conclusions reached. Further, if existing data does not support the conclusions, the scientific community demands an explanation of conflicting facts and data. Until two months prior to trial, Dr. Maest had produced no written work product that discussed the existing data, analyzed the data or attempted to explain any contradictory data. 67. At trial, Plaintiffs introduced eleven excerpts of scientific references and articles

to support Dr. Maest's opinions. See, e.g., Plaintiffs' Exhibits 93, 94, 95, 96, 97, 98, 99, 100, 102, 103 & 105. Dr. Maest testified that she relied on the principles and methodologies set forth in these documents in reaching her opinions in this case. However, none of these documents were attached to Dr. Maest's original report and they were not provided to El Paso until
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December 2006. Based on these facts, the Court concludes that Dr. Maest did not rely on the principles and methods set forth in these documents in reaching her opinions and conclusions. Rather it appears that these documents were produced shortly before trial in an attempt to cure defects in Dr. Maest's testimony identified by the District Court in the CC&V case, namely, that Plaintiffs had not proven that Dr. Maest reliably applied scientifically accepted principles and methods in performing her fate and transport analysis. Even if the Court could find that Dr. Maest relied on the principles and methods set forth in these documents, Plaintiffs presented no testimony explaining how Dr. Maest actually applied the principles and methods to the existing facts and data. 68. Reproducibility is one of the main principles of the scientific method and refers to

the capacity of a test or experiment to be accurately reproduced or replicated by another scientist working independently. Dr. O'Hayre testified that Dr. Maest's methods were not reproducible because she failed to provide any mathematical or empirical expression of work product that could be replicated by another scientist. 69. Peer review is the process of subjecting a scientist's work or ideas to review by

other experts. Dr. Maest's fate and transport analysis cannot be peer reviewed because it does not discuss facts and data, scientific principles and methods, or the application of principles and methods to the facts and data. A reviewer can only agree or disagree with the conclusions stated in Dr. Maest's fate and transport analysis.

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70.

I find that Dr. Maest's opinions are not based on sufficient facts or data, that they

are not the product of reliable principles and methods and that Dr. Maest did not apply any principles and methods reliably to the existing facts and data. I further find that Dr. Maest's fate and transport analysis cannot be peer reviewed or reproduced by other experts in her field because it fails to discuss facts and data, describe accepted scientific principles and methods, or apply any principles and methods reliably to the facts and data. III. Conclusions of Law 1. The Clean Water Act was enacted "to restore and maintain the chemical, physical,

and biological integrity of the Nation's waters." 33 U.S.C. § 1251. Consistent with this objective, the Act prohibits unpermitted discharges of pollutants into navigable waters of the United States. 33 U.S.C. § 1311(a); Defenders of Wildlife v. U.S. Environmental Protection Agency, 415 F.3d 1121, 1123 (10th Cir. 2005). 2. The Act defines the "discharge of any pollutant," as "any addition of any pollutant

to navigable waters from any point source." 33 U.S.C. § 1362(12). 3. The Act allows a citizen to commence a civil action against any person alleged to

be in violation of the Act. 33 U.S.C. § 1365(a)(1). 4. Plaintiffs must prove by a preponderance of the evidence: (1) a discharge (2) of a

pollutant (3) into navigable waters (4) from a point source (5) without a permit. El Paso Gold Mines, Inc., 421 F.3d at 1142 (10th Cir. 2005); see also United States v. Brittain, 931 F.2d 1413,

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1414-15 (10th Cir. 1991). Where there are multiple potential sources of pollutants, the Plaintiffs must prove that those other sources are not responsible for the pollution in question. 5. FED. R. EVID. 702 controls the admission of expert testimony. Under Rule 702,

expert testimony is only admissible if: (1) the expert is qualified to provide the testimony; (2) the expert's testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has applied the principles and methods reliably to the facts of the case. 6. The proponent of an expert opinion bears the burden of proving that the expert

and her opinion testimony satisfy the criteria set forth in Rule 702. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 978 n. 4 (10th Cir. 2001); Tessier v. Sheriff of Monroe County, 402 F.3d 192, 1108 (11th Cir. 2005); U.S. v. Hicks, 389 F.3d 514, 525 (5th Cir. 2004). 7. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993), the United

States Supreme Court made clear that the focus of a Rule 702 inquiry is to determine the reliability of expert testimony. For expert testimony to be reliable, "it must be based on scientific knowledge which implies a grounding in the methods and procedures of science based on actual knowledge, not subjective belief or unsupported speculation." Dodge v. Cotter Corp. 328 F.3d 1212, 1222 (10th Cir. 2002) (internal quotations omitted). Thus, "a trial court's focus generally should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions." Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (citing Daubert, 509 U.S. at 595).
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8.

The proponent of an expert's opinion "must show that the method employed by

the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements." Mitchell v. Gencorp, Inc., 165 F.3d 778, 781 (10th Cir. 1999); Bitler, 400 F.3d at 1233 (quoting Mitchell, 165 F.3d at 781). 9. The experts in this case agree that visual estimations of water flows are unreliable

except to note the presence or absence of flows. Reliable methods of measuring flows include weirs, flumes and pygmy meters, but these devices have never been used inside the Roosevelt Tunnel by Plaintiffs or any other party. 10. The experts also agree that constituent concentrations and fate and transport

cannot be observed, and thus must be determined using scientific sampling and analytical techniques. Reliable methods that are used in determining constituent fate and transport include synoptic water quality sampling, solid sampling, and tracer studies. Plaintiffs have never conducted any of these types of studies in the Roosevelt Tunnel. 11. The water quality data relied upon by Plaintiffs is scant and does not support Dr.

Maest's conclusion that pollutants at the Roosevelt Tunnel portal have their origin in the El Paso shaft. The existing water quality data does not negate the possibility that pollutants might be derived from sources other than the El Paso shaft or occur naturally. 12. Plaintiffs have failed to carry their burden of proving that Dr. Maest's opinions

are based upon sufficient facts and data and reliable principles and methods. As a result, I conclude that Dr. Maest's opinions and conclusions are inadmissible under FED. R. EVID. 702.
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13.

Plaintiffs bear the burden of proving that El Paso discharged zinc from the

Roosevelt Tunnel portal into Cripple Creek by a preponderance of the evidence. See, e.g., Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1146 (10th Cir. 2005); Coeur D'Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1102 (D. Idaho 2003). Plaintiffs presented only expert testimony from Dr. Maest. Plaintiffs have therefore failed to carry their burden of proof. IT IS THEREFORE ORDERED THAT: (1) (2) (3) Judgment shall enter in favor of El Paso and against the Plaintiffs; El Paso may resubmit its Motion for Sanctions under FED. R. CIV. P. 11; and El Paso may also apply for an award of attorneys fees and costs under FED. R. CIV. P. 54(d) and 33 U.S.C. § 1365(d) within fourteen days after entry of judgment.

DATED THIS ___ DAY OF ___________, 2007. _____________________________ District Court Judge 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
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Counsel for El Paso Properties, Inc. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing EL PASO'S POST-TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 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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