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 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ______________________________________________________________________________ Pursuant to the Court's October 17, 2006 Trial Procedures Order, El Paso Properties, Inc. ("El Paso") respectfully submits the following proposed findings of fact and conclusions of law.1 I. Procedural History 1. 2. This is a citizen suit under the Clean Water Act, 33 U.S.C. §§ 1251-1387 ("Act"). The parties have consented to determination of this case by a United States

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

zinc in the seasonal flow of water from the Roosevelt Tunnel portal into Cripple Creek; and, if so (b) the applicable remedies.2
1

In their December 12, 2006 production of trial exhibits, Plaintiffs identified many trial exhibits that had never been previously disclosed or produced. As a result, El Paso has no information regarding these documents with which to prepare proposed findings of fact and conclusions of law. In the event the Court admits any of Plaintiffs' previously undisclosed trial exhibits, El Paso may request leave of court to supplement these proposed findings of fact and conclusions of law. 2 In the event the Court finds that Plaintiffs have established liability herein, El Paso incorporates by this reference its Proposed Findings of Fact and Conclusions of Law regarding Remedies filed on December 24, 2002.

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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 [Clean Water] Act and [its] regulations." [Doc #1 at 10].3 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 Civil Action

No. 00-WM-23254 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 denied El Paso's motion to consolidate on March 26, 2002. Sierra Club v. Cripple Creek & Victor Gold Mining Co., Civil Action No. 01-CV-02325-MSK-MEH ("the CC&V case"). 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].

3

4

Pleadings in this case will be cited by docket number. Now numbered 00-cv-02325-MSK-MEH and consolidated with 01-cv-02307-MSK-MEH.

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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]. 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. 8. 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]. 9. 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]. 10. 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.

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11. 10, 2002. 12.

The Court conducted an evidentiary hearing regarding remedies on December 9-

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]. 13. 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]. Dennis Schoger testified that El Paso was unable to comply with the Court's orders. 14. 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 (Apr. 03, 2006) (NO. 05933). 15. 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."
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16.

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 expert opinions of Plaintiffs' witnesses Kenneth Klco, Ann Maest and Robert Burm. [Doc # 178]. Both sides requested evidentiary hearings regarding these motions. 17. 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]. 18. On September 15, 2006, Plaintiffs moved in limine to exclude the testimony of

Dr. Art O'Hayre, whom El Paso had identified as a rebuttal 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]. 19. 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. [Doc # 209]. On October 17, 2006, the Court set this case for a five day bench trial to

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commence February 5, 2007. [Doc # 214]. The Court conducted the trial from February 5 through February ____, 2007. II. Findings of Fact Based upon the evidence presented at trial, the Court finds as fact: 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. Dennis Schoger testified that El Paso has never conducted any activity that causes pollution to run off its property; El Paso is a wholly passive landowner. 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
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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. Defendant's Exhibit A. 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. [Doc # 91 at stipulations f, g and h.] 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. Defendant's Exhibit A. 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. Defendant's Exhibits A & X.
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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. Defendant's Exhibits A, B & O. 7. 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, other tunnels and surface properties which overlie or do not directly overlie the area. Defendant's Exhibits A & B. 8. Water has also been observed flowing into the Roosevelt Tunnel at rock faults

and fractures between the El Paso shaft and the portal. Defendant's Exhibits A, B & O. Plaintiffs' Exhibit 21 refers to such inflows as "other contaminated water" and acknowledges that such inflows could be a source of constituents in the portal water flows. Plaintiffs' Exhibit 21 at ¶ 21. 9. The Roosevelt Tunnel also loses water from its floor and walls at fractures and

faults along its length meaning that inflows of water observed from the El Paso shaft and fractures between the shaft and the portal may exfiltrate the tunnel before reaching the portal. Defendant's Exhibit A & B. 10. Identifying the source of zinc 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. [Doc # 102].
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12.

For ease of reference, Plaintiffs' theory that zinc 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. 14. Beginning in 1994 CC&V submitted results of Roosevelt Tunnel flow

measurements and water quality sampling to the WQCD and the EPA. Defendant's Exhibits O, P & Q; Plaintiffs' Exhibits 23, 24 & 43. 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, inter alia, 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
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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. David Akers testified that the WQCD has not conducted any field work or

sampling of the Roosevelt Tunnel since July 19, 2001 when the above memoranda was prepared. 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 the tunnel at emergency speed without stopping when oxygen levels began dropping and carbon
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dioxide levels began increasing almost three miles inside the tunnel. The details and conclusions described in Mr. Klco's July 15, 2002 narrative regarding his Roosevelt Tunnel entry (Plaintiffs' Exhibit 80) are not credible because this report was not prepared at or near the time of the events described therein; the notes were written almost one year after the events it purports to describe at the request of Plaintiffs' counsel. 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

[Doc #24] and commenced this action on November 5, 2001 [Doc #1]. 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"). Plaintiffs' Exhibit 2. El Paso responded to the NOV on August 23, 2002 and requested a hearing. Plaintiffs' Exhibit 3.
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23.

The administrative case was tried to Colorado Administrative Law Judge

Matthew E. Norwood for four days commencing on January 22, 2003. Plaintiffs' Exhibit 15. 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. Art O'Hayre. The WQCD's witnesses included EPA hydrologist Michael Wireman and WQCD employee David Akers. Id. Plaintiffs identified Mr. Akers and Mr. Wireman as witnesses in this case as well. 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 2 ½ 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.

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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. Plaintiffs' Exhibit 15 at 11 (emphasis supplied). 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 zinc5 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. To test this hypothesis, one must consider water flows within the Tunnel as well as water quality sampling data at the portal, at the El Paso shaft, and at intermediate locations within the Roosevelt Tunnel. Other than the crude measurements of water flow taken by CC&V as depicted in Defendant's Exhibit O, no other data exist regarding water flows within the Roosevelt Tunnel. Defendant's Exhibit B. Existing flow measurements suggest that water flows varied significantly within the tunnel at various locations on the same day. Defendants'

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Exhibits O, V & W. The existing water quality sampling data within the Roosevelt Tunnel is scant and contradicts the transport hypothesis and the conclusions drawn by Plaintiffs and their expert. 29. El Paso concedes that water quality samples collected at the Roosevelt Tunnel

portal sometimes contain measurable zinc. However, it is undisputed that water does not flow out of the Roosevelt Tunnel during much of the year, such as during winter when any flows are frozen. Defendant's Exhibit O; [Doc. # 102]. When water does exit the portal, its zinc concentrations appear to be highly variable, and some sampling data results have not detected the presence of any zinc. Defendant's Exhibits P & Q and Plaintiffs' Exhibits 19, 23, 24 & 60. 30. Since 1994, water samples have been collected inside the Roosevelt Tunnel on

only six days: May 13, 1994, October 14, 1994, October 26, 1995, October 23, 1996, November 16, 2000, and August 7, 2001. Id. 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. 31. 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. Defendant's Exhibit Q.

5

The only pollutant specifically identified in Plaintiffs' Exhibit 21 is zinc.

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32.

On October 14, 1994, a water sample collected at the El Paso shaft revealed the

presence of 4.1 ppm of zinc TR. 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 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 west of the shaft, the concentration of zinc increased to 0.009 ppm. No other relevant samples were taken on that day. Id. 33. 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. 34. 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. A sample collected at the portal on that day did not indicate the presence of any zinc. Id.; Plaintiffs' Exhibit 19. 35. On November 16, 2000, a water sample collected at the El Paso shaft revealed the

presence of 2.34 ppm of zinc TR. 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. Defendant's Exhibit P.

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36.

On August 7, 2001, a water sample taken at the El Paso shaft showed 2.63 ppm of

zinc TR. 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. Plaintiffs' Exhibit 60. 37. The above findings of fact 30 through 36 summarize all available in-tunnel water

quality sampling data that could have been considered by the expert witnesses in this case.6 A total of twelve sampling data points, collected at seven different locations along a 14,000-foot underground tunnel on five separate days7 spanning a seven-year period, is insufficient data from which to draw scientific conclusions about the source of zinc in water at the Roosevelt Tunnel portal. 38. El Paso's expert witness Dr. O'Hayre testified that a scientific fate and transport

analysis would rely on tracer studies, water quality sampling at numerous locations along the tunnel, solid sampling and flow measurements within the tunnel. Dr. O'Hayre testified that visual observations are not reliable and that the use of devices such as flumes and weirs is necessary to measure flows. The Court finds Dr. O'Hayre's testimony to be credible and supported by common sense. 39. 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
6

Plaintiffs identified these sampling results as trial exhibits 19, 23, 24 and 60.

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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 tracer studies. 40. Dr. Ann 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. This brevity contrasts dramatically with the lengthy nature of other reports Dr. Maest has written such as Defendant's Exhibits I, J, K and M, suggesting that Dr. Maest employs different standards in her litigation work than she does in her regular paid consulting; 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, again in sharp contrast with Dr. Maest's other work such; 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

·

·

·

·

Excluding May 26, 1995, when no relevant samples were collected at the shaft, the portal or at any location in between. EL PASO'S 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 17

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portal water, or quantify the portal constituent concentrations by source, id. at 3, ¶ 9; Dr. Maest has written regarding tracer studies, Defendant's Exhibit K, but such studies were never used in this case. Dr. Maest's work in this case does not include the types of data and analysis she has elsewhere stated is necessary to reach conclusions regarding pollutant fate and transport. Defendant's Exhibits H & L; · The report cites information sources which 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; 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; Defendant's Exhibit Q. 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. Dr. Maest prepared her report based on "one or two" discussions with Plaintiffs'

·

·

41.

counsel John Barth (and with no one else, including any technical expert). Mr. Barth wrote the first draft of Dr. Maest's report; Dr. Maest merely corrected Mr. Barth's misuse of geochemical terms in the report. Dr. Maest did not change any of the conclusions written by Mr. Barth or identify any other changes or corrections to Mr. Barth's draft. Earlier drafts of Dr. Maest's report are not available. Mr. Barth also selected and delivered to Dr. Maest the attachments for her report.

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42.

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. Plaintiffs' witness Dr. McCord concurred with Dr. O'Hayre on these points. 43. Dr. O'Hayre testified that scientific reports 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. Dr. Maest's report does not discuss the existing data, analyze the data or explain how the transport hypothesis can be true in light of contradictory data. 44. A scientific report typically describes the use of accepted scientific techniques

and methods applied to facts and data. Defendant's Exhibits I, J, K & M. 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. 45. 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, and Dr. McCord agreed, that Dr. Maest's report not reproducible because it fails to describe any scientific principle, method or technique that can be replicated by another scientist.

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46.

Peer review is the process of subjecting an author's work or ideas to others who

are experts in the field. Unlike her work in other contexts such as Defendant's Exhibits I, J, K, M and N, Dr. Maest's report 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 report because the report does not include or describe any such rationale or analysis. 47. 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 facts and data. I further find that Dr. Maest's report cannot be peer reviewed or reproduced by other experts in the 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. I further find that Dr. Maest's report does not meet the standards of scientific quality she exhibited in other examples of her work. 48. The Court received into evidence the testimony and expert and rebuttal reports of

Robert E. Brogden, a hydrologist and ground water geologist with thirty years of experience. Defendant's Exhibits A & B. No evidence received during the trial refutes Mr. Brogden's opinions and conclusions. 49. Plaintiffs objected to Mr. Brogden's qualifications and to the admissibility of

Defendant's Exhibits A, B, V and W. Mr. Brogden's education and experience are summarized in his resume. Defendant's Exhibit A. Mr. Brogden has testified as an expert witness in
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hydrology or geohydrology in approximately seventy-five judicial cases; he has also testified as an expert witness before governmental administrative agencies, boards and commissions. He has published papers and taught courses in his professional fields and has worked in over one thousand cases involving surface water and ground water hydrology and geohydrology during his career. 50. Plaintiffs claim that Mr. Brogden is not an expert in "pollutant fate and transport"

and cannot refute Dr. Maest's report and opinions. However, the mechanism of pollutant transport claimed by Plaintiffs is the flow of water. The study of the flow of water and the hydrologic cycle is the field of hydrology, in which I find Mr. Brogden to be well qualified. For these reasons I accept Mr. Brogden's opinions regarding the hydrology and geohydrology of the Roosevelt Tunnel. 51. Plaintiffs also object to admission of Defendant's Exhibits V and W on the

grounds that they were not produced to Plaintiffs before the close of discovery in this case. I find that while Plaintiffs' claim is true, these two exhibits were produced to Plaintiffs by El Paso in January 2003, over four years ago. Mr. Brogden also testified regarding these exhibits at the WQCD administrative hearing in January 2003, a case in which Plaintiffs requested and were granted the right to participate. Plaintiffs have thus had timely notice of and ample opportunity to review and inquire regarding these exhibits and have shown no prejudice. 52. In his June 2002 report, Mr. Brogden concluded that "there is no one single

property which provides the entire flow from the tunnel" and that "[d]efining the exact
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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." Defendant's Exhibit A.8 Water flows within the Roosevelt Tunnel are dynamic and impossible to understand without quantitative flow data derived from the use of flow measuring devices such as flumes or weirs. No such flow data exists regarding the Roosevelt Tunnel. 53. 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 "fracture 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) the field estimates of water flow within the tunnel by CC&V; and (e) Mr. Vardiman's comments regarding water flows made at the time he was observing flows within the tunnel (Plaintiffs' Exhibit 43). 54. Due to the fractured geohydrology setting 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. Defendant's Exhibit B. 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
8

See also Plaintiffs' Exhibit 65 at 1076 ("[c]onsiderably more data are required before any quantitative conclusions can be drawn as to the exact sources of water flowing from the portal. Field measurements of

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representative of flow conditions in the tunnel interior, it follows that concentrations of constituents such as zinc in such portal flows are also not indicative of zinc concentrations at any location within the tunnel. Dr. Maest's report acknowledges that portal flows include "other contaminated water" but fails to identify the sources of this water or rule out the possibility that this water results from natural conditions or sources other than the El Paso shaft. 53. 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. Defendant's Exhibit C. 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. III. Conclusions of Law 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). 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). 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). Plaintiffs must prove by a

flow in the tunnel, at different locations in the tunnel, could help resolve these issues, but I have not seen any evidence that the plaintiffs have conducted such tests."). EL PASO'S 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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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, 1414-15 (10th Cir. 1991). 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. 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 (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). 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). The proponent of an expert's opinion "must show that the
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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). 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 and flumes, but these devices have never been used inside the Roosevelt Tunnel by Plaintiffs or any other party. These 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 used in determining constituent fate and transport include water quality sampling, solid sampling, and tracer studies. Plaintiffs have never conducted these type of studies in the Roosevelt Tunnel. The water quality data relied upon by is scant and does not support Dr. Maest's conclusion that the zinc at the Roosevelt Tunnel has its origin in the El Paso shaft. The existing water quality data does not negate the possibility that zinc might be derived from sources other than the El Paso shaft or occur naturally. 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. 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
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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) Judgment shall enter in favor of El Paso and against the Plaintiffs on their claim herein; (2) In accordance with FED. R. CIV. P. 54(d) and 33 U.S.C. § 1665(d), El Paso may apply for an award of attorneys fees and costs within fourteen days after entry of judgment. DATED THIS ___ DAY OF ___________, 2007.

Respectfully submitted this 22nd day of January, 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 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW was sent electronically via ECF this 22nd day of January, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302

__s/ Sarah D. White__ Sarah D. White, Staff Assistant

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