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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-02325-MSK-MEH SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants; and Civil Action No. 01-cv-02307-MSK SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants. ______________________________________________________________________ ANGLOGOLD DEFENDANTS' PROPOSED FINDINGS OF FACT ______________________________________________________________________

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Defendants Cripple Creek & Victor Gold Mining Company, AngloGold Ashanti (Colorado) Corporation, and AngloGold Ashanti North America, Inc. (the "AngloGold Defendants") respectfully submit the following Proposed Findings of Fact for the Court's consideration. A. Parties 1. Plaintiff Sierra Club ("SC") is a California nonprofit public benefit

corporation organized for the purpose of, among others, exploring, enjoying, and protecting wild places of the Earth. (Exh. 521). 2. Plaintiff Mineral Policy Center ("MPC") is a District of Columbia nonprofit

corporation organized for the purpose of, among others, engaging in research, study, and analysis of government and private sector policy decisions on the management and development of the Nation's mineral resources. (Exh. 520). 3. Defendant Cripple Creek & Victor Gold Mining Company ("CC&V") is a

Colorado joint venture formed pursuant to that certain Amended and Restated Joint Venture Agreement between AngloGold Ashanti (Colorado) Corp. (f/k/a Pikes Peak Mining Company) and Golden Cycle Gold Corporation, dated January 1, 1991 ("Joint Venture Agreement"). (Stip. 4; Exh. 533). 4. Defendant AngloGold Ashanti (Colorado) Corp. ("AGAC") is a corporation

incorporated under the laws of the State of Delaware and is authorized to do business in the State of Colorado. AGAC is a wholly owned subsidiary of AngloGold Ashanti North America Inc. AGAC is the manager of and has a 67% interest in CC&V. (Stip. 2).

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5.

Defendant AngloGold Ashanti North America Inc. ("AGANA") is a

corporation incorporated under the laws of the State of Colorado and is authorized to do business in the State of Colorado. (Stip. 1). 6. Defendant Golden Cycle Gold Corporation ("GCGC") is a corporation

incorporated under the laws of the State of Colorado and is authorized to do business in the State of Colorado. GCGC has a 33% interest in CC&V. (Stip. 3). 7. CC&V is a joint venture governed by the terms of its Joint Venture

Agreement and the laws of the State of Colorado. (Stip. 5; Exh. 533) CC&V has no employees and can act only through persons employed or otherwise engaged by its manager, AGAC. (Exh. 533 at 34, ¶ 5.4(g); Lewis 2/13 at 5:22-24).1 8. Defendants CC&V, AGAC, AGANA, and GCGC are each a "person" within

the meaning of Section 502(5) of the Clean Water Act ("CWA"), 33 U.S.C. § 1362(5). (Stip. 6). B. The Cresson Project 9. The Cresson Project is a gold mining operation located within the mineral-

rich Cripple Creek Mining District in Teller County, Colorado between the Towns of Cripple Creek and Victor, Colorado. (Exh. 106 and 295).

References to specific pages and lines of Bateman's testimony are to his testimony on 2/22. References to specific pages and lines of Burm's testimony are to his testimony on cross examination on 2/22. References to specific pages and lines of Fay's testimony are to her testimony on 2/21. References to specific pages and lines of Hughes' testimony are to his testimony on 2/22. References to specific pages and lines of Lewis' testimony are preceded by the particular date of his testimony. References to specific pages and lines of Maest's testimony are to her testimony on cross examination on 2/21. References to specific pages and lines of Myer's testimony are to his testimony on cross examination on 2/16 and 2/17.

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10.

The Cripple Creek Mining District, which has been explored and mined for

over a century, is located in a mountainous region with the mineralized zone predominately in an extinct volcano. Near the center of the Mining District is the caldera or diatreme of the extinct volcano consisting of fractured and relatively porous rock surrounded by a relatively impervious granitic rock. (Exh. 295; Lewis 2/22 at 3:15-5:9). 11. To facilitate historic mining activities in the Cripple Creek Mining District,

tunnels were bored to drain ground water away from the underground mine workings within the diatreme. Three such tunnels are relevant in this case: the Moffat Tunnel, the Roosevelt Tunnel, and the Carlton Tunnel. (Exh. 295; Stip. 11). 12. Since at least September 1995, CC&V has owned and operated the

Cresson Project. (Stip. 4). 13. In August 2000, CC&V obtained approval for Amendment No. 8 to

Colorado's Mined Land Reclamation Board ("MLRB") Permit M-1980-244 for the Cresson Project ("Amendment No. 8"). Under Amendment No. 8, CC&V's mining

operations are limited to a designated area known as the "Affected Area." This Affected Area is smaller in size, and fully contained within, the boundary of Amendment No. 8. (Lewis 2/13 at 10:20-25; 2/15 at 113:20-115:13; and 2/22 at 3:2-9). 14. CC&V's mining operations under Amendment No. 8 consist of removing

and crushing gold bearing ore, and then placing the crushed ore onto a multi-lined leaching facility referred to as the "Valley Leach Facility" or "VLF." Once the crushed ore is placed on the VLF, the gold is leached from that ore using a dilute cyanide solution. The gold-bearing solution is collected within the VLF and then transferred to

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an on-site gold recovery facility where the solution is processed to obtain the gold. The solution (now stripped of gold) is then recycled back to the VLF. All of these activities occur within the Affected Area of Amendment No. 8. (Exh. 295). 15. The VLF is located in the upper reaches of Arequa Gulch. (Exh. 106;

Lewis 2/16 at 25:3-10). 16. CC&V also conducts mining-related activities of the Cresson Project in the

upper reaches of Squaw Gulch. Specifically, CC&V places and stores overburden in the upper reaches of Squaw Gulch. (Stip. 15 and 17). 17. The EPA has authorized the State of Colorado to issue National Pollutant

Discharge Elimination System ("NPDES") permits pursuant to 33 U.S.C. § 1342(b) of the CWA, and EPA maintains federal oversight over the State of Colorado's NPDES permit program. (Stip. 8). 18. The State of Colorado through the Water Quality Control Division

("WQCD") of the Colorado Department of Public Health and Environment ("CDPHE") issues NPDES-equivalent discharge permits pursuant to its authority under the Colorado Water Quality Control Act at C.R.S. §§ 25-8-101, et seq. ("Colorado Act"). The Colorado Act authorizes the WQCD to issue discharge permits to "state waters" which, under the Colorado Act, are not limited to "navigable waters" as that term is defined in the CWA. (C.R.S. §§ 25-8-101, et seq.; Akers 2/17).

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C.

The Discharge Permits for Arequa Gulch (a) 19. General

Arequa Gulch is an intermittent stream that is not "navigable in fact."

(Lewis 2/15 at 34:3-5; Exh. 302 and 585; and oral stipulation of Plaintiffs' counsel on 2/22). Arequa Gulch is a tributary of Cripple Creek which in turn is a tributary of

Fourmile Creek which in turn is a tributary of the Arkansas River. The Arkansas River is an interstate water that is navigable in fact. (Stip 7). The confluence of Arequa Gulch with Cripple Creek is approximately 20 miles from the Arkansas River. (Exh. 500). Plaintiffs offered no evidence explaining whether or how precipitation falling within the Arequa Gulch watershed travels all the way to the Arkansas River and, if so, how that tributary water affects the quality of the water in the Arkansas River, if at all. 20. Prior to construction of the lined VLF, CC&V installed a series of ground

water drainage channels and pipes within the valley floor of Arequa Gulch. These drainage structures collect ground water from underneath and around the VLF, and convey that ground water to what is now the headwater of surface flow in Arequa Gulch at a location downstream of the VLF where the ground water, or the surface expression of ground water, historically flowed. (Lewis 2/15 at 25:7-22; 113:2-19). 21. On October 11, 1996, the WQCD issued to CC&V Permit CO-0043648 for The 1996 Permit is a NPDES-equivalent

the Cresson Project ("1996 Permit").

discharge permit issued by the WQCD pursuant to its authority under the Colorado Act. The 1996 Permit authorized a number of discharges at different locations around the Cresson Project including the discharge of the collected ground water to Arequa Gulch

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at Outfall 001A. (Exh. 502). Outfall 001A is approximately 1 mile from the confluence of Arequa Gulch with Cripple Creek. (Exh. 500). 22. CC&V challenged the 1996 Permit administratively by requesting an (Exh. 320). In addition, CC&V petitioned the Teller County

adjudicatory hearing.

District Court under C.R.S § 25-8-404(4) for a judicial stay of the challenged permit. (Lewis 2/16 at 42:14-22; Exh. 510 at 2; and Exh. 592 at 1). 23. At the request of CC&V and the WQCD, the Teller County District Court

issued an order that stayed all of the terms and conditions of the 1996 Permit for five days ­ until November 15, 1996. (Lewis 2/16 at 43:17-25; Exh. 592 at 1). 24. At the request of CC&V and the WQCD, the Teller County District Court

subsequently issued four additional orders over the ensuing years during CC&V's administrative challenge of the 1996 Permit. These subsequent orders stayed certain limits in the 1996 Permit related to the discharge at Outfall 001A. (Exh. 592). 25. On April 2, 2001, and prior to a final decision on CC&V's administrative

challenge of the 1996 Permit, CC&V submitted an application to the WQCD either to renew the existing permit or for issuance of a new permit for the Cresson Project including the discharge at Outfall 001A to Arequa Gulch. (Exh. 603). 26. In response to the CC&V-submitted permit application, the WQCD issued

a renewal permit for the Cresson Project including the discharge to Arequa Gulch at Outfall 001A on or about December 28, 2002 ("2002 Permit"). (Exh. 509 and 510). 27. The 2002 Permit became effective in its entirety on February 1, 2003.

(Exh. 509). There is no evidence that the 2002 Permit was challenged by any party, or

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that any terms and conditions of that permit have been administratively or judicially stayed subsequent to the permit becoming effective. 28. As a result of the final effectiveness of the 2002 Permit, the 1996 Permit

terminated by operation of law (Exh. 502 at 32, § II.B.14), and CC&V's challenge to the 1996 Permit was dismissed as moot. (Lewis 2/16 at 44:20-45:7). 29. Outfall 001A as described in the 1996 Permit and the 2002 Permit is a

point source as that term is defined in Section 502(14) of the CWA. (Stip. 57). 30. Both the 1996 Permit and the 2002 Permit require the permittee ­ CC&V ­

to submit Discharge Monitoring Reports ("DMRs") for the discharge at Outfall 001A. (Stip. 50; Exh. 502 at 11, § I.B.2; Exh. 509 at 6, § I.B.1). (b) 31. Additional facts related to Claim 8--WET

The 1996 Permit contained a limit for Whole Effluent Toxicity ("WET") at

Outfall 001A. (Exh. 502 at 5). 32. According to DMRs submitted by CC&V pursuant to the 1996 Permit,

there was an initial WET test failure of Ceriodaphnia dubia at Outfall 001A for the fourth quarter 1996. (Stip. 59). 33. CC&V stopped conducting any further WET tests at Outfall 001A on or

about January 1997. (Stip. 60). 34. Paragraph 3 of the December 10, 1999 judicial stay order entered by the

Teller County District Court states that "[f]or discharge point 001A identified in the [1996] Permit, the parties agree to a judicial stay of [WET] as a monitoring requirement and as an effluent limit." According to Paragraph 7 of that order, this stay was to remain in

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effect until 30 days after final resolution of CC&V's appeal of the 1996 Permit. (Exh. 592). 35. There are no limits or requirements for WET at Outfall 001A in the 2002

Permit. (Exh. 509; Exh. 510 at 11-12, ¶ 4). 36. EPA issued a notice of violation letter to WQCD and issued a notice of

violation letter to CC&V, AGAC, and GCGC on or about April 2, 2001 (collectively "EPA NOV"), which alleged violations of the WET terms and conditions in the 1996 Permit at Outfall 001A. (Exh. 535 and 536). The allegations raised in the EPA NOV were settled with the entry of a Combined Complaint and Consent Agreement with EPA ("EPA Consent Agreement") (Exh. 73 at 6-7), and an Administrative Order on Consent with the CDPHE ("CDPHE Consent Order") (Exh. 57 at 5-7). Plaintiffs submitted comment

letters to EPA related to the EPA Consent Agreement and to CDPHE related to the CDPHE Consent Order. (Exh. 516 and 518). (c) 37. Additional facts related to Claim 9--Cyanide

The 1996 Permit contained an effluent limit for the 30-day average (Exh. 502 at 5).

concentration for weak acid dissociable cyanide at Outfall 001A.

Paragraph 2 of the December 10, 1999 judicial stay order entered by the Teller County District Court addresses the 30-day average concentration for weak acid dissociable cyanide at Outfall 001A. (Exh. 592). 38. According to DMRs submitted by CC&V pursuant to the 1996 Permit, the

effluent limit for the 30-day average concentration for weak acid dissociable cyanide at

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Outfall 001A was exceeded in September 1998; and May, June, July and August, 1999. (Stip. 58). 39. CC&V evaluated the reported cyanide exceedances and, based on that

evaluation, requested a determination from the WQCD that the exceedances were caused by an upset condition. (Lewis 2/15 at 143:12 to 149:12). 40. An upset is defined in the 1996 Permit as an "exceptional incident in which

there is unintentional and temporary noncompliance with permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation." (Exh. 502 at 25, § II.A.3.d.). 41. In response to CC&V's request, the WQCD concluded in a letter to CC&V

dated March 13, 2000 "that a definitive cause of the high [weak acid dissociable cyanide (CNWAD)] exceedances may not be identified but the heavy precipitation events likely had a significant influence. A determination that an upset condition caused the

exceedances would only be useful as an affirmative defense in any enforcement action brought for these exceedances. Given the information provided, the Division does not intend to pursue a formal enforcement action regarding the May through August 1999 CNWAD exceedances." WQCD reaffirmed this position in a letter to the Colorado

Division of Minerals and Geology ("DMG") in a letter dated August 22, 2000. (Exh. 546).

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42.

In addition to requesting an upset determination from the WQCD, CC&V

upgraded its facilities in Arequa Gulch to accommodate the possibility that another exceptional storm event could occur in the future. Storm water controls in Arequa Gulch were improved and enlarged during the fall of 1999. On or about September 2000, CC&V completed installation of two additional experimental treatment ponds. Components for a temporary pumpback were assembled in the fall of 2000 and the system was activated on or about May 2001. A baffle system was installed in the Arequa Gulch sediment pond on or about August 18, 2001. CC&V completed the

replacement of the temporary pumpback system with a permanent system on or about the summer of 2002. (Lewis 2/15 at 143:12-145:14; 151:9-152:5; and 2/16 at 80:1481:2, 82:2-6). 43. There were no exceedances of the effluent limit for weak acid dissociable

cyanide in the 1996 Permit at Outfall 001A since August, 1999. (Exh. 701; Lewis: 2/15 at 152:2-152:14). 44. The effluent limit for weak acid dissociable cyanide in the 2002 Permit for

Outfall 001A is more restrictive than the limit in the 1996 Permit and there have never been any exceedances of that limit. (Exh. 509 and 701; Lewis 2/15 at 157:12-157:19). 45. The EPA NOV alleged violations of the cyanide terms and conditions in

the 1996 Permit at Outfall 001A. (Exh. 535 and Exh. 536). The allegations raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 6-7) and the CDPHE Consent Order (Exh. 57 at 5-7).

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46.

Plaintiffs offered no expert testimony on the treatment deficiencies, if any,

of the upgraded facilities in Arequa Gulch to accommodate another exceptional event. (d) Additional facts related to Claims 10 and 11--discharging without a permit; and violation of original permit limits if judicial stays not effective.

47.

The WQCD prepared preprinted DMRs for the 1996 Permit as if that

permit was effective, and CC&V as the permittee submitted completed DMRs under the 1996 Permit as if that permit was effective. (Lewis 2/15 at 111:3 to 113:1; 127:19 to 128:22; and Exh. 206). 48. The sections of the DMRs for the 1996 Permit specifying the permit limits

that were preprinted by the WQCD incorporate the terms and conditions of the judicial stay orders entered by the Teller County District Court. (Id. and Exh. 606). 49. The WQCD conducted site inspections at the Cresson Project specific to

the 1996 Permit as if that permit was effective, and issued inspection reports noting CC&V's compliance with the 1996 Permit. (Exh. 511 and 512). 50. The "Performance History" section of the WQCD's Rationale for the 2002

Permit is based on an effective 1996 Permit with permit limits that reflect the judicial stay orders entered by the Teller County District Court. (Lewis 2/15 at 134:5 to 135:13; Exh. 510 at 5-6; Exh. 606). 51. The allegations in the EPA Consent Agreement and the CDPHE Consent

Order are based on an effective 1996 Permit with permit limits that reflect the judicial stay orders entered by the Teller County District Court. (Exh. 73 at 6-7; Exh. 57 at 5-7; and Exh. 606).

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D.

The Discharge Permit for Carlton Tunnel (a) 52. General

The Carlton Tunnel drains the regional ground water aquifer underlying

the Cripple Creek Mining District and surrounding areas. (Stip. 43). 53. The Carlton Tunnel was completed in the early 1940's. (Stip. 41). It lies

about 3,000 feet below the ground surface of the Affected Area of the Cresson Project. (Lewis 2/16 at 22:9-10). 54. The Carlton Tunnel underlies properties that are located within and

outside of the boundary of Amendment No. 8 for the Cresson Project. (Stip. 42). 55. The portal of the Carlton Tunnel is located about five miles from the

Cresson Project operations in the Affected Area. (Lewis 2/15 at 116:6 to 116:8). 56. Outside of the Carlton Tunnel portal is a rock fill area that appears to have

been constructed by dumping the underground development rock excavated from the Carlton Tunnel onto the native ground below the portal. (Lewis 2/13 at 37:3-6; and 2/15 at 4:1-18). 57. On top of the rock fill area are a series of settling ponds through which

water from the Carlton Tunnel is directed prior to being discharged. (Exh. 580 and 595; Lewis 2/13 at 34:23-35:9). 58. Initially, four settling ponds were installed to assist in the removal of

suspended solids. (Stip. 45; Lewis 2/13 at 33:9-13; Exh. 580). 59. In early 1996, CC&V installed a fifth pond and cleaned out and deepened

the four existing ponds. Bentonite was then added to these five ponds ("Carlton Tunnel

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Ponds") as well as to the transmission trough used to convey the Carlton Tunnel water from the portal to the first of the five settling ponds. (Myers at 14:5-18:21). 60. CC&V owns the property upon which the portal of the Carlton Tunnel and CC&V also possesses a property interest in a

Carlton Tunnel Ponds are located.

portion of the area between the Carlton Tunnel Ponds and County Road 88, also known as Shelf Road. (Stip. 46). 61. The Carlton Tunnel portal, the Carlton Tunnel Ponds, and a portion of the

area between the Carlton Tunnel Ponds and Shelf Road are included within the boundary of Amendment No. 8. (Stip. 47). 62. The WQCD issued to CC&V Permit CO-0024562 for the Carlton Tunnel

("Carlton Tunnel Permit"). The Carlton Tunnel Permit is a NPDES-equivalent discharge permit issued by the WQCD pursuant to its authority under the Colorado Act that authorizes the discharge from the Carlton Tunnel to Fourmile Creek. (Stip. 40; Exh. 237). 63. From at least September 1995 to the date of trial, water containing

chemical constituents has flowed through the Carlton Tunnel Ponds and past Outfall 002 as described in the Carlton Tunnel Permit and flowed into Fourmile Creek. (Stip. 48). 64. At the location where the Carlton Tunnel permitted discharge flows into

Fourmile Creek, it is approximately 14.5 miles from the Arkansas River. (Exh. 500). Plaintiffs offered no evidence explaining whether or how precipitation falling within the

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Fourmile Creek watershed travels all the way to the Arkansas River and, if so, how that tributary water affects the quality of the water in the Arkansas River, if at all. 65. The portal of the Carlton Tunnel is a point source as that term is defined in

Section 502(14) of the CWA. (Stip. 49). 66. The Carlton Tunnel Permit requires the permittee ­ CC&V ­ to submit

DMRs for the discharge to Fourmile Creek. (Stip. 50; Exh. 237 at 1d of 19, ¶ 3). (b) 67. Additional facts related to Claim 2--Flow

The Carlton Tunnel Permit contains a limit for flow at Outfall 002. (Exh.

237 at 1a of 19). 68. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, the 30-day average flow number at Outfall 002 was exceeded in July, August, September, October, November, December, 1995; January 1996; June 1999; and August 1999. (Stip 52; Lewis 2/15 at 164:14-166:14). 69. CC&V evaluated the 1999 flow exceedances and, based on that

evaluation, requested a determination from the WQCD that the exceedances were caused by an upset condition. (Lewis 2/15 at 166:15-167:25). 70. In response to CC&V's request, the WQCD concluded in a letter to CC&V

dated March 13, 2001 "that the upset condition provisions of the regulations apply in this case. As such, the [WQCD] does not intend to pursue formal enforcement action for these exceedances...." (Exh. 546). 71. There have been no exceedances of the limit for flow at Outfall 002 since

August 1999. (Exh. 702; Lewis 2/15 at 168:6-169:1).

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72.

The EPA NOV alleged violations of the flow limit in the Carlton Tunnel

Permit at Outfall 002. (Exh. 535 and 536) The allegations raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 5-6) and the CDPHE Consent Order (Exh. 57 at 2-4). (c) 73. Additional facts related to Claim 3--TSS (30 Day)

The Carlton Tunnel Permit contains an effluent limit for the 30-day

average concentration for Total Suspended Solids ("TSS") at Outfall 002. (Exh. 237 at 1a of 19). 74. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, the effluent limit for the 30-day average concentration for TSS at Outfall 002 was exceeded in December 1995; January 1996; and March 1996. (Stip. 53). 75. CC&V upgraded the Carlton Tunnel Ponds in early 1996 by installing the

fifth pond and cleaning out and deepening the four existing ponds. (Myers at 14:518:21). CC&V also upgraded the Carlton Tunnel Ponds in or about August 2001 when it completed installation of a baffle system that prevents any short circuiting of the water through the settling ponds. (Lewis 2/15 at 161:22-162:17; 173:4-7). 76. There have been no exceedances of the effluent limit for the 30-day

average concentration for TSS at Outfall 002 since March, 1996. (Exh. 706; Lewis 2/16 at 6:17-9:11). 77. The EPA NOV alleged violations of the 30-day average concentration for

TSS in the Carlton Tunnel Permit at Outfall 002. (Exh. 535 and 536). The allegations

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raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 5-6) and the CDPHE Consent Order (Exh. 57 at 2-4). 78. Plaintiffs offered no expert testimony on the treatment deficiencies for

TSS, if any, of the upgraded Carlton Tunnel Ponds. (d) 79. Additional facts related to Claim 4--TSS (7 Day)

The Carlton Tunnel Permit contains an effluent limit for the 7-day average

concentration for TSS at Outfall 002A. (Exh. 237 at 1a of 19). 80. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, the effluent limit for the 7-day average concentration for TSS at Outfall 002 was exceeded on March 18, 1996 and May 6, 1996. (Stip. 54). 81. CC&V upgraded the Carlton Tunnel Ponds in early 1996 by installing the

fifth pond and cleaning out and deepening the four existing ponds. (Myers at 14:518:21). CC&V also upgraded the Carlton Tunnel Ponds in or about August 2001 when it completed installation of a baffle system that prevents any short circuiting of the water through the settling ponds. (Lewis 2/15 at 161:22-162:17; and 173:4-7). 82. There have been no exceedances of the effluent limit for the 7-day

average concentration for TSS at Outfall 002 since May 6, 1996. (Exhibit 707; Lewis 2/16 at 9:12-10:16). 83. The EPA NOV alleged violations of the 7-day average concentration for

TSS in the Carlton Tunnel Permit at Outfall 002. (Exh. 535 and 536). The allegations raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 5-6) and the CDPHE Consent Order (Exh. 57 at 2-4).

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84.

Plaintiffs offered no expert testimony on the treatment deficiencies for

TSS, if any, of the upgraded Carlton Tunnel Ponds. (e) 85. Additional facts related to Claim 5--Zinc (30 Day)

The Carlton Tunnel Permit contains an effluent limit for the 30-day

average concentration for potentially dissolved zinc at Outfall 002. (Exh. 237 at 1a of 19). 86. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, the effluent limit for the 30-day average concentration for potentially dissolved zinc at Outfall 002 was exceeded in August 1998 and June 1999. (Stip. 55). 87. CC&V evaluated the exceedances and, based on that evaluation,

requested a determination from the WQCD that the exceedances were caused by an upset condition. (Lewis 2/15 at 166:15-167:25). 88. In response to CC&V's request, the WQCD concluded in a letter to CC&V

dated March 13, 2001 "that the upset condition provisions of the regulations apply in this case. As such, the [WQCD] does not intend to pursue formal enforcement action for these exceedances...." (Exh. 546). 89. In addition to requesting an upset determination from the WQCD, CC&V

upgraded the Carlton Tunnel Ponds to accommodate the possibility that another exceptional event could occur in the future. In or about August 2001, CC&V completed installation of a baffle system which prevents any short circuiting of the water through the settling ponds. (Lewis 2/15 at 161:22-162:17; and 173: 4-7).

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90.

There have been no exceedances of the limit for the 30-day average

concentration for potentially dissolved zinc at Outfall 002 since June 1999. (Exh. 703; Lewis 2/15 at 169:2-171:16). 91. The EPA NOV alleged violations of the 30-day average concentration for

potentially dissolved zinc in the Carlton Tunnel Permit at Outfall 002. (Exh. 535 and 536). The allegations raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 5-6) and CDPHE Consent Order (Exh. 57 at 2-4). 92. Plaintiffs offered no expert testimony on the treatment deficiencies for

zinc, if any, of the upgraded Carlton Tunnel Ponds to accommodate another exceptional event. (f) 93. Additional facts related to Claim 6--Zinc (Daily Max)

The Carlton Tunnel Permit contains an effluent limit for the daily maximum

concentration for potentially dissolved zinc at Outfall 002. (Exh. 237 at 1a of 19). 94. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, the effluent limit for the daily maximum concentration for potentially dissolved zinc at Outfall 002 was exceeded on September 9, 1998; May 19, 1999; and June 1, 1999. (Stip. 56). 95. CC&V evaluated the exceedances and, based on that evaluation,

requested a determination from the WQCD that the exceedances were caused by an upset condition. (Lewis 2/15 at 166:15-167:25). 96. In response to CC&V's request, the WQCD concluded in a letter to CC&V

dated March 13, 2001 "that the upset condition provisions of the regulations apply in this

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case. As such, the [WQCD] does not intend to pursue formal enforcement action for these exceedances...." (Exh. 546). 97. In addition to requesting an upset determination from the WQCD, CC&V

upgraded the Carlton Tunnel Ponds to accommodate the possibility that another exceptional event could occur in the future. In or about August 2001, CC&V completed installation of a baffle system which prevents any short circuiting of the water through the settling ponds. (Lewis 2/15 at 161:22-162:17; 173:4-7). 98. There have been no exceedances of the limit for the daily maximum

concentration for potentially dissolved zinc at Outfall 002 since June 1999. (Exh. 704; Lewis 2/15 at 172:2-173:11). 99. The EPA NOV alleged violations of the daily maximum concentration for

potentially dissolved zinc in the Carlton Tunnel Permit at Outfall 002A. (Exh. 535 and 536). The allegations raised in the EPA NOV were settled with the entry of the EPA

Consent Agreement (Exh. 73 at 5-6) and CDPHE Consent Order (Exh. 57 at 2-4). 100. Plaintiffs offered no expert testimony on the treatment deficiencies for

zinc, if any, of the upgraded Carlton Tunnel Ponds to accommodate another exceptional event. (g) 101. Additional facts related to Claim 7--WET

The Carlton Tunnel Permit contains a limit for WET at Outfall 002. (Exh.

237 at 1a of 19). 102. WET testing is a biological test that is different than the typical testing for

parameters like metals and pH in that it relies on the health of the organism exposed to

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the water being tested. There are inherent uncertainties with this test. (Lewis 2/15 at 175:1-177:8; 178:6-181:10); see also Edison Electric Institute v. EPA; 391 F.3d 1267, 1272 (D.C. Cir. 2004). 103. Even by EPA's calculations, WET tests will be wrong some of the time; as

a result, EPA has warned against using a single test result to institute an enforcement action for a civil penalty. (Exh. 593); see also 67 Fed. Reg. at 69,968. 104. According to DMRs submitted by CC&V pursuant to the Carlton Tunnel

Permit, there was an initial WET test failure of Ceriodaphnia dubia at Outfall 002 in: second quarter, 1996; first quarter, 1997; and third quarter, 1999. (Stip. 51). In each of these instances, CC&V performed additional testing as required by the Carlton Tunnel Permit to verify the validity of the initial WET test. (Exh. 237 at 1d-1i of 19). None of the initial WET test failures were ever confirmed through this additional verification testing; thus, by the terms of the Carlton Tunnel Permit no further confirmatory WET testing was required. (Exh. 705; Exh. 237 at 1d-1i of 19; Lewis 2/15 at 182:3-183:6). 105. There have been two other initial WET test failures of Ceriodaphnia dubia second quarter 2004 and third quarter 2005. In each of these

at Outfall 002 in:

instances, CC&V performed additional testing was required by the Carlton Tunnel Permit to verify the validity of the initial WET test. None of these other initial WET test failures were ever confirmed through this additional verification testing; thus, by the terms of the Carlton Tunnel Permit no further confirmatory WET testing was required. (Id.).

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106.

The EPA NOV alleged violations of the WET limit in the Carlton Tunnel

Permit at Outfall 002A. (Exh. 535 and 536). The allegations raised in the EPA NOV were settled with the entry of the EPA Consent Agreement (Exh. 73 at 5-6) and CDPHE Consent Order (Exh. 57 2-4). E. The Moffat Tunnel Cribbing Wall (Claim 13) 107. The Moffat Tunnel Cribbing Wall is a wooden structure built sometime in

the late 1800's that retains rock material at the mouth of an unnamed gulch along Shelf Road. It is located about 5,000 to 6,000 feet from the Cresson Project operations in the Affected Area and about 2,000 feet from the outer wall of the diatreme. (Stip 18; Lewis 2/15 at 116:11 to 116:18; and 2/22 at 4:5-5:9). 108. The cribbing wall and retained rock material appear to have been

constructed to create a working platform for the excavation of the Moffat Tunnel. (Lewis 2/15 at 4:1-25). 109. The Moffat Tunnel is a man-made tunnel constructed to drain ground

water from the Cripple Creek Mining District. It is located approximately 2,000 feet above the Carlton Tunnel or approximately 1,000 feet below the ground surface of the Affected Area of the Cresson Project, and underlies certain properties and mineral interests of CC&V. (Stips. 12, 13, and 14; Lewis 2/16 at 25:8-15). 110. There is no evidence of any water flow from the portal of the Moffat

Tunnel. (Lewis 2/16 at 32:6-14). 111. The Moffat Tunnel Cribbing Wall is located between the Moffat Tunnel

portal and Cripple Creek. (Stip. 18).

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112.

Water is occasionally observed at the base or toe of the Moffat Tunnel

Cribbing Wall and that water contains certain chemical constituents. (Lewis 2/15 at 7:16-19; and 2/16 at 32:19-33:3; Exh. 561). 113. The water emerges on land owned by the federal government as

administered by the Bureau of Land Management ("BLM") in a location that appears to be the historic channel of the unnamed gulch that was buried when the Moffat Tunnel Cribbing Wall was built. (Exh. 708; Lewis 2/16 at 30:13-20; Myers at 3:10-4:4). 114. The water emerging at the toe of the Moffat Tunnel Cribbing Wall has

been observed on occasion to flow all the way to Cripple Creek. (Lewis 2/15 at 9:1214). 115. Water has been observed occasionally upgradient of the working platform

created by the Moffat Tunnel Cribbing Wall, and that water contains certain chemical constituents. (Exh. 531 and 532; Lewis 2/16 at 28:25-30:12; and 32:17-33:3; Exh. 561). 116. Plaintiffs offered no evidence on the chemical or physical makeup of the

rock retained by the Moffat Tunnel Cribbing Wall. 117. Plaintiffs offered no evidence on the size of the unnamed gulch watershed

contributing to the water flow at the base of the Moffat Tunnel Cribbing Wall, the physical or chemical makeup of that watershed, or the surface and ground water hydrology of that watershed. 118. Plaintiffs offered no evidence of any infiltration into or through the rock

behind the Moffat Tunnel Cribbing Wall.

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119.

Plaintiffs offered no expert testimony that identified the source of the water

flow at the toe of the Moffat Tunnel Cribbing Wall. 120. Plaintiffs offered no expert testimony explaining whether or how the

Cresson Project operations in the Affected Area (which are within the more porous diatreme) could be contributing to the water flow observed at the toe of the Moffat Tunnel Cribbing Wall (which is outside the diatreme) or to the observed quality of that water. 121. Since approximately September 8, 2000, the Moffat Tunnel Cribbing Wall

area has been located within the boundary of Amendment No. 8, but the cribbing wall area is outside of the Affected Area and it is not used in conjunction with any of the mining operations of the Cresson Project. (Stip. 22; Lewis 2/15 at 115:16-17; and 2125). 122. CC&V owns the surface rights to a portion of the working platform created

by the Moffat Tunnel Cribbing Wall. (Exh. 708; Bateman 2/17). However, Plaintiffs offered no credible evidence that any of the Defendants own that portion of the unnamed gulch or the Moffat Tunnel Cribbing Wall where the water flow actually appears at the toe of the cribbing wall. 123. There is no mining activity at the Moffat Tunnel Cribbing Wall area. CC&V

has, however, cleaned up the surface of the working platform by, for example: characterizing and disposing of old drums, recycling abandoned scrap metal, adding top soil, and vegetating the area. (Lewis 2/15 at 20:19-23:3; 2/16 at 33:11-34:2).

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124.

CC&V has never dumped waste rock at the Moffat Tunnel Cribbing Wall.

(Lewis 2/15 at 155:18-22). 125. Defendants do not have a NPDES permit issued pursuant to the CWA to

discharge pollutants from the Moffat Tunnel Cribbing Wall into Cripple Creek. (Stip. 20). 126. Cripple Creek is not navigable in fact. (Exh. 586; Oral Stipulation of

Plaintiffs' counsel on 2/22). Cripple Creek is a tributary of Fourmile Creek which in turn is a tributary of the Arkansas River. (Stip 7). The Arkansas River is an interstate water that is navigable in fact. (Stip. 7). At the location where water from the unnamed gulch has been observed to reach Cripple Creek, it is approximately 21 miles from the Arkansas River (Exh. 500). Plaintiffs offered no evidence explaining whether or how precipitation falling within the Cripple Creek watershed travels all the way to the Arkansas River and, if so, how that tributary water affects the quality of the water in the Arkansas River, if at all. F. The Squaw Gulch Pond (Claim 14) 127. The Squaw Gulch Pond is a man-made stock watering pond that was

constructed sometime between 1956 and 1962 by excavating a depression in the ground and using the excavated material to create a downstream dam embankment. (Stip. 19; Lewis 2/14 at 48:20-49:4; and 50:15-21). 128. The Squaw Gulch Pond is located near the Squaw Gulch Road (a/k/a

Shelf Road) approximately 1/4 mile below Highway 67, about 1,800 feet from the Cresson Project operations in the Affected Area and just downgradient from the outer wall of the diatreme. (Stip. 19; Lewis 2/15 at 116:9-16; and 2/22 at 5:10-20).

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129. 130. 131.

CC&V owns the land upon which the pond is located. (Stip. 21). Livestock still use the pond. (Myers at 5:5-13; Exh. 530). The Squaw Gulch Pond captures precipitation falling on it as well as an

undetermined amount of ephemeral surface water and ground water. (Myers at 5:1419). 132. Water occasionally has been observed at a seep located downgradient of

the Squaw Gulch Pond but the distance between that seep and the toe of the Squaw Gulch Pond embankment is not known. (Maest at 19:10-17; Burm at 2:25-4:10). 133. The amount of water flowing at the seep has not been measured. (Burm

at 4:11-5:17). The seep water contains certain chemical constituents. (Maest 2/21). 134. Plaintiffs offered no evidence on the size of the Squaw Gulch watershed

contributing to either the Squaw Gulch Pond or to the seep downgradient of that pond; the physical or chemical makeup of that watershed; or the surface and ground water hydrology of that watershed. 135. Plaintiffs offered no evidence on the chemical or physical makeup of the

dam embankment for the pond. 136. Plaintiffs offered no expert testimony that identified the source of the water

flow at the seep downgradient of the Squaw Gulch Pond. 137. Plaintiffs offered no expert testimony explaining whether or how the

Squaw Gulch Pond might contribute water and/or chemical constituents to the seep. There are no tracer study results, nor are there any water balance calculations that correlate seep flow to the loss of water from the pond.

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138.

Plaintiffs offered no expert testimony explaining whether or how the

Cresson Project operations in the Affected Area (which are within the porous diatreme) could be contributing water and/or chemical constituents to the Squaw Gulch Pond or to the seep (which are outside the diatreme). 139. Since approximately January 25, 1999, the Squaw Gulch Pond has been

located within the boundary of Amendment No. 8 (Stip. 23), but the pond is outside of the Affected Area and it is not used in conjunction with any of the mining operations of the Cresson Project. (Lewis 2/15 at 115:14-15; and 21-23). 140. There is no mining activity at the Squaw Gulch Pond. The pond is not

now used as a mine process water pond, waste water pond, or tailings impoundment; nor is it a water treatment facility. (Lewis 2/16 at 35:3-15). Nor is there any evidence that the pond was ever used for such purposes. 141. CC&V has never dumped waste rock at the Squaw Gulch Pond (Lewis

2/15 at 155:18-22). 142. Defendants do not have a NPDES permit issued pursuant to the CWA to

discharge pollutants from the Squaw Gulch Pond into Squaw Gulch. (Stip. 20). 143. Squaw Gulch is not navigable in fact. (Exh. 551 at Photo 1; Oral

Stipulation of Plaintiffs' counsel on 2/22). Squaw Gulch is a tributary of Cripple Creek which is in turn a tributary of Fourmile Creek which is in turn a tributary of the Arkansas River. (Stip. 7). At the location of the Squaw Gulch Pond, it is approximately 21 miles from the Arkansas River (Exh. 500). Plaintiffs offered no evidence explaining whether or how precipitation falling within the Squaw Gulch watershed travels all the way to the

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Arkansas River and, if so, how that tributary water affects the quality of the water in the Arkansas River, if at all. G. The Roosevelt Tunnel (Claim 10) 144. The Roosevelt Tunnel is a man-made drainage tunnel. It was constructed

around 1910 to drain ground water from the Cripple Creek Mining District and is located approximately 1,000 feet above the Carlton Tunnel or approximately 2,000 feet below the ground surface of the Affected Area of the Cresson Project. (Stip. 24 and 25; Lewis 2/16 at 25:8-15). 145. Flow from the Roosevelt Tunnel decreased when the Carlton Tunnel was

constructed. However, the Roosevelt Tunnel still collects some water and that collected water flows out of the tunnel portal seasonally at a calculated average annual flow rate of about 20 gallons per minute into Cripple Creek. (Lewis 2/16 at 25:8-26:1; Exh. 301). 146. The portal of the Roosevelt Tunnel is located along Shelf Road about 160

feet from Cripple Creek. (Stip. 29; Lewis 2/15 at 39:1-2). 147. At the location where the Roosevelt Tunnel water flows into Cripple Creek,

it is about 17 miles from the Arkansas River (Exh. 500). 148. On November 27, 2000, CC&V held an unpatented lode mining claim

known as the El Paso mining claim (CMC No. 169659) on the property upon which the Roosevelt Tunnel portal is located. (Stip. 30). CC&V relinquished that claim in 2001. (Bateman at 3:20-4:8). 149. At various times from November 27, 2000, CC&V has intermittently

possessed a key to the locked gate at the portal of the Roosevelt Tunnel. During the

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time that CC&V held the unpatented El Paso mining claim, CC&V granted whatever access it may or may not have had, on occasion, across that claim to persons desiring to enter the Roosevelt Tunnel. (Stip. 31; Exh. 155 at 11, § 9.9). 150. Representatives of CC&V have entered the Roosevelt Tunnel over the last

15 years on at least the following dates: in 1991; in March 1993; on July 22, 1993; on May 13, 1994; on October 4, 1994; on October 14, 1994; on May 26, 1995; on October 23, 1996; on July 23, 1998; on August 21, 2001; and on June 3, 2003. (Stip. 32). 151. Water flow from the Roosevelt Tunnel portal to Cripple Creek has been

observed on occasion from September 27, 1995 to the date of trial and that water contains certain chemical constituents. (Stip. 33 and 35; Exh. 564). 152. Water has been observed to enter the Roosevelt Tunnel at the El Paso

Shaft, located almost 3 miles from the Roosevelt Tunnel portal, and at a number of seeps between the portal and the El Paso Shaft. (Klco 2/17). 153. The base of the El Paso Shaft is connected to the Roosevelt Tunnel and

there have been a number of observations of water "raining down" the shaft into the tunnel. The amount of water flow from the El Paso Shaft has not been measured or quantified, nor has the quality of that water been analyzed. (Klco 2/17). 154. There is no evidence that the El Paso Shaft is open from the surface,

2,000 feet above the Roosevelt Tunnel, all the way down to the floor of the tunnel, and there is evidence that the shaft is probably collapsed. (Pontius 2/17).

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155.

The locations of the seeps that have been observed to contribute water to

the Roosevelt Tunnel have not been correlated to the various property interests along the surface trace of the Roosevelt Tunnel. (Klco 2/17). 156. The amount of water flow from the various seeps into the Roosevelt

Tunnel has not been measured or quantified, nor has the quality of that seep water been analyzed. Additionally, there is no evidence on the chemical makeup of the rock through which the seep water migrates before flowing into the Roosevelt Tunnel. (Klco 2/17). 157. Plaintiffs offered no measurements of water flow in the Roosevelt Tunnel.

Based on the various accounts of flow observations, the best that can be said is that the flow in the tunnel from the El Paso Shaft to the portal varies and may or may not be continuous; and, from at least May 1995, there has been no flow of water toward the portal in the Roosevelt Tunnel upgradient of the El Paso Shaft. (Klco 2/17; Exh. 215, 218, 230, and 342). 158. The quality of the water in the tunnel at the El Paso Shaft is different from

the quality of the water that exits the Roosevelt Tunnel portal. As an example, the concentration of zinc is over 10 times higher at the El Paso Shaft than at the Roosevelt Tunnel portal. (Exh. 564). 159. There is no evidence that any of the Defendants owns the Roosevelt

Tunnel or the land on which the Roosevelt Tunnel portal is located. 160. The Roosevelt Tunnel underlies certain properties and mineral interests of (Stip. 26). There is no evidence that any water from CC&V's

CC&V and others.

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property interests gets into the tunnel and then is conveyed to the Roosevelt Tunnel portal. 161. There is no evidence that any of the Defendants ever owned the El Paso

Shaft or any of the surface features of that shaft. 162. At the request of the owner of the property upon which the surface

features of the El Paso Shaft are located, CC&V drilled 4 to 6 test holes in 1992 to determine if the waste rock on that property was worth purchasing for gold recovery. CC&V determined that it was not and never purchased the property or the waste rock. (Pontius 2/17; Exh. 150 and 213). 163. Also at the request of the owner of the property upon which the surface

features of the El Paso Shaft are located, CC&V agreed to include that property within the boundary of Amendment No. 8. That property is outside of the Affected Area where CC&V is allowed to mine, and it is not used in conjunction with any of the mining operations of the Cresson Project. (Bateman 2/17; Lewis 2/15 at 118:19-24). 164. Plaintiffs offered no expert testimony that identified the source of the water

flowing out of the portal of the Roosevelt Tunnel. 165. Plaintiffs offered no expert testimony explaining whether or how the

observed water raining down the El Paso Shaft actually contributes to the water flowing out of the portal of the Roosevelt Tunnel or to the observed quality of that water. 166. Plaintiffs offered no expert testimony explaining whether or how water at

the surface of the El Paso Shaft, if any, actually contributes to the water raining down

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the El Paso Shaft or to the water flowing out of the portal of the Roosevelt Tunnel or to the observed quality of that water. 167. Plaintiffs offered no expert testimony explaining whether or how the

Cresson Project operations in the Affected Area actually contribute to the water flowing out of the portal of the Roosevelt Tunnel or to the observed quality of that water. 168. Plaintiffs offered no expert testimony explaining whether or how discharge

from any of Defendants' lands occurs at the Roosevelt Tunnel portal. 169. The portal of the Roosevelt Tunnel is a point source as that term is

defined in Section 502(14) of the CWA. (Stip. 36). 170. Defendants do not operate any treatment system for the water flowing

from the Roosevelt Tunnel. (Stip. 37). 171. Defendants do not possess a NPDES permit for the discharge of

pollutants from the Roosevelt Tunnel. (Stip. 38). H. The Fourmile Creek Springs (Claim 1) 172. Water is observed at or near the base or toe of the rock fill area outside of

the portal of the Carlton Tunnel portal. Plaintiffs refer to this water as the "Carlton Tunnel Pond seeps" while Defendants and the WQCD refer to this water as the "Fourmile Creek Springs." For convenience, the observed water is referred to herein as the Fourmile Creek Springs. (Exh. 250; 616; and 617). 173. The Fourmile Creek Springs flow into a roadside ditch on the northeast

side of Shelf Road and, on occasion, have been observed to flow all the way to

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Fourmile Creek in the same general vicinity as the permitted discharge from the Carlton Tunnel. (Maest 2/21). 174. The flow of water at the Fourmile Creek Springs increased significantly in

early 1996 immediately after the four existing ponds were cleaned out and deepened, and the fifth pond was excavated. The flow at the Fourmile Creek Springs returned to its relatively low flow baseline condition within about 10 months after bentonite was added to the ponds. (Myers at 14:5-19:13). 175. The quality of the water emerging at the Fourmile Creek Springs is

significantly different than the quality of the water in the Carlton Tunnel Ponds with concentrations of several parameters being 100 times lower in the spring water. (Exh. 565; Maest at 20:11-17). 176. The water emerging at the Fourmile Creek Springs does not leave the

orange deposit that is so characteristic of the permitted discharge from the Carlton Tunnel Ponds. (Exh. 2: compare photo 3GG at 3333 with photo 7GG and 8GG at 3335). 177. There is no evidence of an actual leakage rate, if any, from the Carlton

Tunnel Ponds; and Plaintiffs offered no expert testimony explaining whether or how any actual leakage from the ponds after the 1996 construction activities contributes to the flow at the Fourmile Creek Springs. For example, there are no tracer testing results, nor are there any water balance calculations demonstrating any loss of water from the Carlton Tunnel Ponds.

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178.

CC&V has never dumped waste rock at the Carlton Tunnel portal

complex. (Lewis 2/15 at 155:18-22). 179. Plaintiffs offered no evidence on the chemical or physical makeup of the

rock fill upon which the Carlton Tunnel Ponds are constructed. 180. Plaintiffs offered no evidence on the size or chemical makeup of the

watershed within which the underground development rock excavated from the Carlton Tunnel was placed and which might be contributing to the Fourmile Creek Springs. 181. On February 24, 2005, the WQCD issued to CC&V Permit CO-0046540

for the Fourmile Creek Springs ("Fourmile Creek Springs Permit"). The Fourmile Creek Springs Permit is a NPDES-equivalent discharge permit issued by the WQCD pursuant to its authority under the Colorado Act that authorizes the discharge from the Fourmile Creek Springs to Fourmile Creek. (Exh. 616 and 617). I. Standing 182. Plaintiffs offered no evidence of a concrete and particularized injury to

either SC or MPC. 183. According to its charter, SC may have members who are entitled to vote

for directors of the nonprofit corporation. (Exh. 521). 184. Membership in MPC is prohibited by MPC's Articles of Incorporation. MPC

accepts contributions and refers to these contributors as "so-called members," but these contributors are prohibited from voting on any issue including the election of directors; and are prohibited from participating in any of the management of the affairs of MPC. (Exh. 520 at CCVRB-505, 515).

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185.

In support of the asserted representational standing of SC and MPC,

Plaintiffs offered the testimony of Marilyn Fay ("Fay") and Kirby Hughes ("Hughes"). 186. Fay testified as follows: (a) She became a member of Sierra Club around 1998 and has

remained a member since then. (Fay at 3:9-12). (b) She became a "member" of MPC in October 2000 and has

remained a "member" since then. (Id. at 4:23-5:1). (c) (d) She began visiting the area in 1972. (Id. at 28:18-29:1). She is concerned about the Moffat Tunnel Cribbing Wall, the

Squaw Gulch Pond, the Roosevelt Tunnel, the Carlton Tunnel, and Arequa Gulch. (Id. at 12:30-22:25). (e) She did not raise these concerns until 1998 or 1999, when "the

mining company was wanting to incorporate more and more land." (Id. at 11:1625; and 40:22-41:7). (f) She still frequents these watersheds; she still takes exchange

teachers and students and other international visitors to the watersheds, she still recommends her shop customers to visit the watersheds; and she still sends artists to the watersheds because it is a "really scenic area." (Id. at 10:13-11:11). Her use of Arequa Gulch has not changed at all. (Id. at 42:24-43:10). (g) She does not frequent the area as much as she did in the past

because "she is running [her antique] shop." (Id. at 13:12-22).

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187.

Hughes testified as follows: (a) He became a member of Sierra Club in the early 1990s and has

remained a member since then. (Hughes at 3:8-11). (b) He became a "member" of MPC in 1996 and has remained a

"member" since then. (Id. at 4:15-18). (c) at 6:19-24). (d) His activities consisted of traveling Shelf Road, conducting tours, He began visiting the area in the late 1970s and early 1980s. (Id.

and having picnics and cookouts along Shelf Road. He did not get close to the water and he is not a fisherman. (Id. at 6:25-7:25; 31:13-14). (e) He is concerned about (i) the discolored channel where the

permitted discharge from the Carlton Tunnel Ponds flows to Fourmile Creek (Id. at 8:21-9:21); (ii) the black discoloration of rocks below the Roosevelt Tunnel culvert pipe and the absence of any monitoring and permitting of the flows from that tunnel (Id. at 10:10-11:5); (iii) the white crusty deposit on the Moffat Tunnel Cribbing Wall and the absence of any monitoring and permitting of the seep at the base of that cribbing wall (Id. at 11:6-12:6); (iv) the discolored water in the Squaw Gulch Pond and the absence of any monitoring and permitting of flows that might be discharged from that pond (Id. at 12:7-13:12); and (v) the potential for cyanide discharges to Arequa Gulch and the absence of any monitoring and permitting of those discharges (Id. at 13:13-14:25). These issues did not start to

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become a concern until Hughes began to understand more about the leaching process at the Cresson Project. (Id. at 27:7-19). (f) He also is concerned about what happens to the VLF and the

overburden after the mining is completed and CC&V is gone. (Id. at 29:18-21). (g) 20:12-25). (h) He did not testify that his use and enjoyment of the Carlton Tunnel He still uses and enjoys the watersheds along Shelf Road. (Id. at

area has been affected by the Fourmile Creek Springs. J. Additional Facts Regarding Defendant AGANA 188. The day-to-day operations of the Cresson Project are performed by AGAC For

personnel as Manager of CC&V pursuant to the Joint Venture Agreement.

example, on-site AGAC personnel: maintain all of the Cresson Project permits including the 1996 Permit, the 2002 Permit, and the Carlton Tunnel Permit; monitor and inspect all of the outfalls designated in those permits; and prepare and submit the DMRs required under those permits. Additionally, the on-site AGAC personnel have authority over all of the technical issues at the Cresson Project. (Lewis 2/13 at 13:21-15:13). 189. AGANA employees provide certain services to AGAC including legal and

land acquisition assistance, but the AGANA employee's time to provide such services is specifically allocated to AGAC. (Lewis 2/15 at 103:5-23). 190. Plaintiffs offered no evidence that AGANA has ever applied for a permit or

ever been named as a permittee at the Cresson Project.

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191.

Plaintiffs offered no evidence that AGANA is the owner or the operator of

the Cresson Project, or the Moffat Tunnel Cribbing Wall, the Squaw Gulch Pond, the Roosevelt Tunnel, the Carlton Tunnel, or the Carlton Tunnel Ponds. 192. Plaintiffs offered no evidence that AGANA: (a) finances AGAC; (b)

subscribes to all the capital stock of AGAC or otherwise caused AGAC's incorporation; or (c) pays the salaries or expenses or losses or AGAC. Nor did Plaintiffs offer any evidence that AGAC: (a) has grossly inadequate capital; (b) has substantially no business except with AGANA or no assets except those conveyed to it by AGANA; (c) is referred to as a "department" or "division" of AGANA in the papers of AGANA or in statements made by AGANA officers; (d) has directors or executives that do not act independently in the interest of AGAC; or (e) has not observed its formal legal requirements as a separate and independent corporation. See Skidmore v. Canada Life, 907 F.2d 1026, 1027 (10th Cir. 1990). K. Additional Facts Regarding Defendant GCGC 193. Plaintiffs offered no evidence that GCGC is liable as an owner, operator,

discharger, or otherwise. 194. Plaintiffs offered no evidence that GCGC owns any property within

Amendment No. 8. 195. Plaintiffs offered no evidence that GCGC owns or controls any property

within the Affected Area in which CC&V mining and related operations are ongoing. 196. Plaintiffs offered no evidence that GCGC conducts mining operations of

any kind anywhere in Teller County, Colorado.

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197.

Plaintiffs offered no evidence that GCGC has at any relevant time

operated any mine, facility, structure, or mechanism anywhere in Teller County capable of discharging any pollutants into any watercourse, or by any means anywhere else. 198. Plaintiffs offered no evidence that GCGC has at any time or is now

discharging any pollutants into any watercourse or by any means anywhere else. 199. Plaintiffs offered no evidence that GCGC has authority or power to prevent

discharges, lawful or unlawful, resulting from any other entity's acts or failures to act. 200. Plaintiffs offered no evidence that GCGC can either remedy or correct

lawful or unlawful discharges anywhere within Amendment No. 8. 201. Plaintiffs offered no evidence that GCGC has at any time asserted any

right or otherwise suggested that it has the power to impede, countermand, or otherwise control AGAC in its operation of the Cresson Project. 202. Plaintiffs offered no evidence that GCGC has the staff, financing, skills, or

ability to direct, control, or operate the Cresson Project. 203. The testimony elicited by the Plaintiffs upon direct examination from

GCGC's Chief Executive Officer and President, Rex Herbert Hampton, and upon crossexamination of Mr. Hampton subsequent thereto, evidences GCGC's right to be informed of the majority owner and operators' acts and plans; to be heard as to both, and even to disagree, but not to overrule, condition, or prohibit them from carrying out those acts and plans. (Hampton 2/16 at 5:15-6:12; 11:9-11:19, 17:4-18:7; Exh. 533; Exh. 80; Exh. 385; and Exh. 420).

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204.

The relationship between and among the Defendants is evidenced by their

Joint Venture Agreement and there is no evidence that GCGC has disregarded the terms and conditions of that Agreement. (Exh. 533).

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Respectfully submitted this 6th day of March, 2006.

HOGAN & HARTSON L.L.P. s/ Robert C. Troyer __________________________________ Robert C. Troyer 1200 17th Street, Suite 1500 Denver, CO 80202 Telephone: 303-899-7300 Facsimile: 303-899-7333 [email protected] and Eugene J. Riordan Lisa C. Ledet VRANESH AND RAISCH, LLP 1720 14th Street, Suite 200 P.O. Box 871 Boulder, CO 80306-0871 Telephone: 303-443-6151 Facsimile: 303-443-9586 [email protected] [email protected] Attorneys for Defendants Cripple Creek & Victor Gold Mining Company, AngloGold Ashanti (Colorado) Corp., and AngloGold Ashanti North America Inc.

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CERTIFICATE OF SERVICE I hereby certify that on March 6, 2006, I electronically filed the foregoing ANGLOGOLD DEFENDANTS' PROPOSED FINDINGS OF FACT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John M. Barth P.O. Box 409 Hygiene, CO 80533 [email protected] Roger Flynn Jeffrey C. Parsons Western Mining Action Project P. O. Box 349 Lyons, CO 80540 [email protected] Randall M. Weiner Law Offices of Randall M. Weiner, P.C. 1942 Broadway, Suite 408 Boulder, CO 80302 [email protected] Don H. Sherwood Attorney at Law 10861 West 28th Place Denver, CO 80215 [email protected] Craig R. Carver CARVER KIRCHHOFF, SCHWARZ, MCNAB & BAILEY, P.C. 1600 Stout Street, Suite 1700 Denver, CO 80202 [email protected] Eugene J. Riordan Lisa C. Ledet VRANESH & RAISCH, LLP P.O. Box 871 Boulder, CO 80306-0871 [email protected] [email protected]

s/ Robert C. Troyer __________________________________ Robert C. Troyer Hogan & Hartson L.L.P. 1200 17th Street, Suite 1500 Denver, CO 80202

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