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

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

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

PROPOSED FINDINGS OF FACT 1. At least some of the water from the El Paso shaft reaches the Roosevelt Tunnel portal. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005) and Doc. # 196, Memorandum and Order, p. 11. 2. The issue remaining for trial is whether pollutants coming from the shaft water are ever discharged at the portal. Doc. # 196, p. 11. 3. Plaintiffs have already established that some of the water at the Tunnel portal comes from the El Paso shaft. Doc. # 196, p. 11. 4. 5. The El Paso shaft releases pollutants (zinc and manganese). Doc. # 197, p. 1. On October 12, 2001, El Paso Gold Mines, Inc. caused Roosevelt Tunnel LLC to submit an application for a discharge permit to the Colorado Department of Public Health and Environment, Water Quality Control Division ("WQCD"). Trial Exhibit

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13. The application contains water quality sampling results from the Roosevelt Tunnel portal ("RT") which were collected and analyzed by the Cripple Creek and Victor Gold Mining Co. ("CC&V"). 6. On June 28, 2002 the WQCD denied the discharge permit application (Exhibit 13) and issued a water quality assessment of Cripple Creek and the effects of the Roosevelt Tunnel portal discharge. Trial Exhibit 19. 7. On May 13, 1994 the Cripple Creek and Victor Gold Mining Co. conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water on the floor of the El Paso Shaft ("RT-El Paso") flowing into the Roosevelt Tunnel, the results of which are found at Trial Exhibit 23. 8. On October 23, 1996 the Cripple Creek and Victor Gold Mining Co. conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water on the floor of the Tunnel approximately half way between the Roosevelt Tunnel portal and the El Paso Shaft ("RT-Cave in"), the results of which are found at Trial Exhibit 23. 9. On November 16, 2000 the Cripple Creek and Victor Gold Mining Co. conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water from the floor of the Tunnel portal at the following locations: 1) approximately 700 feet in from the portal ("RT-1"); 2) approximately 6000-8000 feet in from the portal ("RT-2"); and at the El Paso shaft ("El Paso"), the results of which are found at Trial Exhibit 24. CC&V also took videotape of the November 16, 2000 Roosevelt Tunnel interior inspection which is found as Trial Exhibit 43. CC&V also created a

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plan map of the November 16, 2000 Roosevelt Tunnel inspection which is found as Trial Exhibit 75. 10. On or about November 8, 2001 El Paso Gold Mines, Inc. and Roosevelt Tunnel LLC submitted a fully executed Wastewater Treatment and Discharge Agreement to the WQCD, a copy of which is found at Trial Exhibit 34. 11. On December 28, 2000 the U.S. Environmental Protection Agency issued a request for information under the Clean Water Act to the Cripple Creek and Victor Gold Mining Co., et al, a copy of which is found at Trial Exhibit 39. 12. On February 1, 2001 and June 5, 2001 the Cripple Creek & Victor Gold Mining Co. submitted a response to the EPA's December 28, 2000 request for information, copies of which are found at Trial Exhibit 40 and 42 respectively. 13. On August 13, 2001 the U.S. Environmental Protection Agency issued a request for information under the Clean Water Act to the El Paso Gold Mines, Inc., a copy of which is found at Trial Exhibit 49. 14. On February 1, 2001 El Paso Gold Mines, Inc. submitted a response to the EPA's December 28, 2000 request for information, a copy of which is found at Trial Exhibit 50. 15. On August 7, 2001 the Cripple Creek and Victor Gold Mining Co. conducted an internal inspection of the Roosevelt Tunnel in which they collected and analyzed water on the floor of the Tunnel at the following locations: 1) from the El Paso shaft ("El Paso Shaft") and 2) at Roosevelt Tunnel portal from the El Paso shaft ("RT"). The water quality analytical results of this event are found at Trial Exhibit 60.

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16.

On September 20, 2002 CC&V submitted to the EPA and WQCD a report of an inspection of the interior of the Roosevelt Tunnel by Gold States Mining Co. on December 1, 1998, a copy of which is found at Trial Exhibit 62.

17.

On various occasions, CC&V collected and analyzed water quality sampling results from the Roosevelt Tunnel portal ("RT") between November 2001 and May 2002 and submitted these results to the WQCD and EPA, a copy of which is found as Trial Exhibit 65.

18.

The Court has subject matter jurisdiction over the claims in this case pursuant to 33 U.S.C. § 1365(a) of the CWA and 28 U.S.C. Section 1331. Doc. # 219, p. 3, ¶ a.

19.

The Roosevelt Tunnel is a six-mile long, man-made tunnel that was constructed to drain water from mines in the Cripple Creek-Victor area in Teller County, Colorado. Doc. # 219, p. 3, ¶ d.

20.

A portion of the Roosevelt Tunnel underlies Defendant's property. Doc. # 219, p. 3, ¶ e.

21.

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

22. 23.

Underground mine workings connect to the El Paso shaft. Doc. # 219, p. 3, ¶ g. The Roosevelt Tunnel portal is located along Shelf Road, County Road 88 in Teller County, Colorado. Doc. # 219, p. 4, ¶ h. The Roosevelt Tunnel portal discharges water into Cripple Creek. 421 F.3d at 1136.

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24.

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

25.

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

26.

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

27.

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

28.

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

29.

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

30.

At least at times, pollutants discharged from the El Paso shaft into the Roosevelt Tunnel reach the portal and Cripple Creek.

31.

Water quality data shows that zinc and manganese have been released intermittently into Cripple Creek from the Roosevelt Tunnel portal since November 2, 1995. Doc. # 139 at 2 (2003 WL 25265873).

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32.

Inspection reports from the interior of the Roosevelt Tunnel in the 1990's show that water flowing from the El Paso shaft into the Tunnel at times contributes to the flow that is discharged from the Tunnel portal. Doc. # 139 at 2 (2003 WL 25265873).

33.

Samples taken from water flowing into the Roosevelt Tunnel from the El Paso shaft on October 14, 1994 and November 16, 2000 contained detectable levels of zinc and manganese. Doc. # 139 at 2 (2003 WL 25265873).

34.

During the summer of 2001, representatives from the U.S. Department of Justice informed defendant's president that defendant was potentially liable for Roosevelt Tunnel discharges. Doc. # 139 at 3 (2003 WL 25265873).

35.

On July 25, 2002, the CWQCD issued a Notice of Violation and Cease and Desist Order to El Paso ordering El Paso to apply for a discharge permit and to retain an expert in mine drainage treatment to evaluate options to treat or eliminate the effluent "associated with" defendant's Teller County property. Doc. # 139 at 3 (2003 WL 25265873).

PROPOSED CONCLUSIONS OF LAW 1. The Clean Water Act ("CWA" or "the Act"), 33 U.S.C. §§ 1251, et seq. (2001), was enacted in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). 2. The CWA empowers citizens to bring civil actions against any person who fails to comply with the requirements of the CWA or with the terms of an NPDES permit. 33 U.S.C. § 1365(a) and (f).

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3.

The Clean Water Act prohibits the discharge of any pollutant from a point source unless authorized by a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. §§ 1311(a), 1342. Under the Act, a "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). The CWA states: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342 and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a).

4.

Section 301(a) of the CWA states that "the discharge of any pollutant by any person shall be unlawful," unless authorized by an NPDES permit. 33 U.S.C. § 1311(a). The CWA sets forth guidelines for the NPDES permits for the discharge of pollutants in Section 402, 33 U.S.C. § 1342. To establish a violation of these sections, a plaintiff must prove that the defendant (1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5) without a permit. Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982).

5.

The term "pollutant" includes dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954 ...), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. 33 C.F.R. 122.2.

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6.

The federal regulations EPA promulgated provide that "any addition of any pollutant" includes "additions of pollutants into waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works." 40 C.F.R. § 122.2.

7.

The focus of the Clean Water Act is not on the activity which results in the point source discharge, but is rather on the point source discharge itself. The CWA was "designed to regulate to the fullest extent possible those sources emitting pollution into rivers, lakes and streams." Earth Sciences, Inc., 599 F.2d at 373; 33 U.S.C. § 1251(a).

8.

When viewed as a whole, it is apparent the liability and permitting sections of the Act focus on the point of discharge, not the underlying conduct that led to the discharge. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143 (10th Cir. 2005).

9.

The Clean Water Act consistently refers to the obligations of the `owners and operators' of a point source, suggesting that successor land owners such as El Paso are covered by the Act's provisions if they are responsible for a functional point source. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143-44 (10th Cir. 2005).

10.

The requirement of an "addition" under the Clean Water Act is satisfied by the contemporaneous introduction of polluted water from El Paso's property, through a

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point source owned and maintained by El Paso, to a navigable stream, Cripple Creek. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1144 (10th Cir. 2005). 11. If the point source is "discharging," the "person" who owns or operates the point source is liable under the Act. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1145 (10th Cir. 2005).

Dated: January 22, 2007

Respectfully submitted by, s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 COUNSEL FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I do hereby certify that on this 22nd day of January, 2007 a true and accurate copy of PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ Jeffrey Parsons __________________________ Jeffrey Parsons

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