Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-MK-2325 (OES) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION, Defendants. and Civil Action No. 01-MK-2307 (OES) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP., ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. _____________________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS ON REMEDIES PURSUANT TO F.R.E. 702 _____________________________________________________________________________ Plaintiffs oppose Defendants' Motion to Exclude Plaintiffs' Expert Witness Opinions on Remedies Pursuant to F.R.E. 702, filed June 2, 2005. The opinions of James R. Kuipers, 1

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Plaintiffs' expert witness, fully satisfy Rule 702's predicates to admissibility, and they should be admitted at trial. 1. Qualifications

Defendants challenge three of Mr. Kuipers' opinions, Opinion Nos. 5, 12 and 15, on the basis of a lack of qualifications. In Opinion 5, Mr. Kuipers states his opinion on how stormwater is normally managed under the NPDES program at those mine sites with which he has experience. In Opinion 12, Mr. Kuipers estimates the cost of purchasing and installing flow measurement devices for, and annual monitoring of, discharges at the Squaw Gulch Pond, Moffat Tunnel crib wall, and Roosevelt Tunnel. In Opinion 15, Mr. Kuipers estimates the cost of monitoring, sampling, and reporting at the Carlton Tunnel assuming CCV had obtained an NPDES discharge permit. Specifically, and as relevant to opinions 12 and 15, Mr. Kuipers has twenty years' experience in process and equipment engineering and design, construction, monitoring, mine and discharge permitting, and engineering cost estimation at mine sites. Mr. Kuipers has specific expertise in engineering cost estimation--which is a common practice of Mr. Kuipers and other engineers. He has also published and/or lectured in areas related to Clean Water Act requirements and financial issues at mine sites. Finally, he has provided expert witness testimony and reports in several other cases involving operating and financial issues at mines sites. Because his experience directly encompasses the estimates given in Opinions 12 and 15, the Court should not exclude his testimony on qualifications grounds.

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As for opinion 5 (concerning management of stormwater at mines sites and experience with so-called "upset events"), Mr. Kuipers' opinion is based on his extensive experience with the Clean Water Act, including NPDES permitting. Non-lawyers are qualified to interpret such NPDES permits, including agency regulators and Defendants' non-lawyer, environmental employees. See Deposition Transcript of Scott A. Lewis, July 15, 2003 at 27:7-23 (CCV employee acknowledgment that NPDES term "discharge" has a statutory as well as "more general" meaning).1 Mr. Kuipers is qualified to render an opinion on management of stormwater at mine sites. In summary, as a result of over 20 years of relevant experience and educational background, Mr. Kuipers is qualified to testify to Opinions 5, 12, and 15. 2. Sufficient Facts or Data

Defendants challenge every one of Mr. Kuipers' 16 opinions on the basis of a lack of "sufficient facts or data," either because he relied on his own visual observations rather than "data" about the characteristics of the watershed (1-2, 4, 7), or because he lacks specific information. In actuality, Defendants are not challenging his "facts," but "data" to support those facts. As set forth in his expert report, Mr. Kuipers' opinions are grounded in the following data (not exclusive): · · Personal observation of the relevant areas of the Cripple Creek & Victor (CC&V) Gold Mine; Personal experience gained from 20 years in the mining and environmental engineering field;

Mr. Lewis' transcript is attached to Plaintiffs' Response to Defendants Motion to Strike Affidavits and Reports of Robert Burm and Ann Maest, filed Oct. 27, 2003.

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· · · · · · · · · · · · · · ·

Data garnered from a library of personally gathered materials from over 100 mine reclamation and closure plans; Photographs taken at Arequa Gulch and water quality results; Water quality sampling results from Moffat Tunnel Crib Wall discharge and Squaw Gulch Pond discharge; Videotapes taken at the Moffat Tunnel crib wall; Analytical results of solids at the Moffat Tunnel crib wall; Sampling results from the Moffat Tunnel crib wall discharge; Photographs taken at the Roosevelt Tunnel; Inspection reports of the Roosevelt Tunnel; Water quality sampling results of the Roosevelt Tunnel discharge; Water quality assessment of the State at the Roosevelt Tunnel discharge; Photographs taken at the Carlton Tunnel area; State discharge permits for Outfall 002 (Carlton Tunnel); Water quality data of the seeps at the Carlton Tunnel; Sampling results of the Carlton Tunnel ponds and waste rock seep; Defendants' own capital and operating cost estimates for water treatment options at the CC&V gold mine.

Mr. Kuipers had sufficient facts and data to reach his opinions. His reliance on visual observations is appropriate in these circumstances. See, Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 1004) (visual observation acceptable when coupled with other factors of reliability). In each case his observations were supplemented by the extensive data outlined above. Thus, Mr. Kuipers' opinions should not be excluded on the basis of lack of facts or data. 3. Reliable Methodology

Defendants also challenge every one of the methods used by Mr. Kuipers in formulating his 16 opinions. As shown below, in each of his opinions Mr. Kuipers relied on sound methodologies and principles. Opinion nos. 1, 2 and 4 concern conditions at the Squaw Gulch Pond, Moffat Tunnel crib wall, and Carlton Tunnel ponds. They are factual statements, based on visual observations, 4

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concerning conditions he has frequently observed as a remediation engineer. These factual statements are afforded increased reliability because of Mr. Kuipers' education, background and experience. The Tenth Circuit has affirmed the use of visual observations by experts when certain other indicia of reliability are present: Employing his experience and knowledge as a fire investigator, Boh observed the physical evidence at the scene of the accident and deduced the likely cause of the explosion. Although such a method is not susceptible to testing or peer review, it does constitute generally acceptable practice as a method for fire investigators to analyze the cause of fire accidents. Bitler v. A.O. Smith Corp., 400 F.3d at 1235. As in Bitler, this Court should find Mr. Kuipers' "personal experience, training, method of observation, and deductive reasoning sufficiently reliable to constitute `scientifically valid" methodology." Id. Opinion no. 3 concerns the remediation potential of the Carlton Tunnel ponds. His opinion is based on the application of his experience with remediation measures for 20 years. It is based on public remedial actions which have been the subject of review within the remediation engineering community. Such measures, i.e., use of sediment ponds, are described in the engineering literature and other mine remediation documentation available to Defendants. His methodology is thus verifiable. His opinion is based on the type of observation and deductive reasoning upheld as "scientifically valid" in Bitler. Given Mr. Kuiper's relevant experience and education, it should also be upheld here. Opinion no. 5 concerns Mr. Kuipers' understanding of a common provision in NPDES permits. His opinion is based on the application of his experience with reading such permits for 20 years. As noted in his resume, he recently made a presentation entitled "Evaluation of the 5

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NEPA Process for Estimating Water Quality Impacts at Hardrock Mine Sites" at the Society of Mining Engineers Annual Conference. NPDES permits are publicly available, his opinion can be verified, and his understanding has been made available to the engineering community and is "generally sound." See Cotter, 328 F.3d at 1222. Opinion nos. 6 and 7 concern the "most effective means of compliance" and "the most common means to mitigate future potential seepage" at Arequa Gulch. Mr. Kuipers is proposing specific remedial measures. These measures are described in the engineering literature and other mine remediation documentation publicly available. As noted in his resume, his 28 publications and presentations on the subject include the following: Introduction to Mine Water Treatment; Alternative Final Reclamation and Closure Plan, Zortman and Landusky Mines, MT; Wastewater Treatment Methods for Base and Precious Metal Mines; Hardrock Mining Reclamation and Bonding Practices in the Western United States. The methodologies he used for these opinions are thus fully verifiable, are based on published remediation programs, and his proposed remedies follow a "generally acceptable practice." See, Bitler, 400 F.3d at 1235. Opinions nos. 8-10, and 12-16 concern remediation costs. Mr. Kuipers employed a comparative cost methodology in reaching his opinions. Mr. Kuipers' methodology is both "generally accepted" in the scientific community, and is also "scientifically sound." Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003), citing Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999). See also, Bitler, 400 F.3d at 1235 (finding methodology reliable despite lack of peer review if it constitutes a "generally acceptable practice"). Mr. Kuipers relied upon his educational background and professional experience in estimating costs of the various 6

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remedies. He compared the costs of his proposed remedies with the costs of similar remediation measures at other mine sites. He also considered actual costs estimates made by Defendants for water treatment options at the CC&V Gold Mine. Moreover, as noted in his resume, Mr. Kuipers has published extensively on mining remediation costs, e.g. Financial Assurance Guidelines
for Hardrock Mine Cleanup; Reclamation and Financial Assurance for Mines on or Impacting Tribal Land; U.S. State and Federal Policies on Financial Assurance Forms for Hardrock Mine; Mine Closure and Financial Assurance: Can the Mining Industry Afford It's Legacy? Accordingly, Mr. Kuipers' cost estimates should be admitted

since they have a reliable basis in his knowledge and experience, are generally accepted in the scientific community, and are "scientifically sound." Opinion no. 11 concerns the need for various testing and treatment measures at each of the discharge locations. First, as noted above, Mr. Kuipers thoroughly investigated the facts and data necessary to render this opinion. He relied on his experience at hard rock mines sites, including permitting requirements at the CC&V Gold Mine. Second, Mr. Kuipers reached his opinion "by comparing the discharge water quality data with water quality standards" at the CC&V Gold Mine. This is comparative methodology is reliable for determining whether quality standards have been violated. It is not necessary to also perform physical, chemical or hydrologic tests or to prepare models when the actual water quality data is before you. The testing and treatment he proposes, based on the water quality violations, follows principles and methodologies accepted by the engineering community. His opinion is thus verifiable, is based on published agency activity, and, as required under the Cotter and Bitler analysis, is "scientifically sound" or follows a "generally acceptable practice." 7

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4.

Opinions Within the Scope of Remedies' Discovery

Finally, Defendants challenge certain of Mr. Kuipers' opinions on the basis that they go beyond the "scope of discovery" on remedies authorized by the Court. However, this 702 hearing is not the appropriate forum to address Defendants' discovery dispute. Defendants should have this issue in a discovery motion.2 They did not. Moreover, this issue is not appropriate before a determination is made as to whether the methodology of the opinions is reliable. See Transcript of June 3, 2005 Rule 702 Hearing at 5. In any event, this Court has clearly authorized discovery on remedies. March 25, 2005 Courtroom Minutes at 2. The scope of such remedies discovery was outlined during the March 25, Pretrial Conference, when Plaintiffs' counsel stated that it would encompass an expert's opinion "on what an appropriate remedy would be" and "the financial wherewithal of the defendants for civil penalty purposes." Transcript of Pretrial Conference (attached as Exh. A to Defendants' Motion to Exclude Plaintiffs' Expert Witness Opinions On Remedies Pursuant to F.R.E. 702), at p. 22, lines 7-11. In essence, Defendants argue that these opinions are not relevant to the inquiry on remedies. The consideration of relevant evidence is one of "fit." Bitler, 400 F.3d at 1234. "A trial court must look at the logical relationship between the evidence proffered and the material issue that evidence is supposed to support to determine if it advances the purpose of aiding the trier of fact." Id.

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See, Defendants' Opposition to Plaintiffs' Renewed Rule 702 Motion dated February 1, 2005 at 3, n.2.

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Each of the opinions offered by Mr. Kuipers is relevant to the inquiry on remedies. His opinions on Squaw Gulch Pond hydrology (no. 1), seepage from the waste rock dump behind the Moffat Tunnel crib wall (no. 2), Carlton Tunnel waste rock dump seepage (no. 4), leach pile rinsing (no. 7), and the best methodology for protection of the water quality of Arequa Gulch (no. 10) serve as a foundation for his proposed remedial opinions and also document additional and ongoing violations of the Clean Water Act which are redressable by civil penalties--a form a remedial relief sought by Plaintiffs. They are relevant to the inquiry of how best to remedy Defendants' alleged Clean Water Act violations. There is thus "a logical relationship between the evidence proffered and the material issue that evidence is suppose to support." Bitler, 400 F.3d 1234. Mr. Kuipers also has the relevant educational and work experience to testify as an expert in these areas. Because his opinions would aid the Court in resolving remedial issues, his opinions on these subjects are relevant and should not be excluded. Time Required In light of the Defendants' challenges, and pursuant to the Court's Hearing Procedures, Plaintiffs estimate that they will need a total of approximately 2 hours to present the direct examination and 1 hour for redirect examinations of Mr. Kuipers. Conclusion In those three opinions where Mr. Kuipers' qualifications are challenged, Defendants overlook his extensive underlying education and experience. Mr. Kuipers also considered adequate facts and data to support his opinion. Finally, Mr. Kuipers employed sound

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methodologies and principles in reaching his opinions. As such, Mr. Kuipers' expert opinions should not be excluded. Respectfully submitted this 20th day of June, 2005.

/s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 Telephone (303) 823-5738 FAX (303) 823-5732 E-mail: [email protected] John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 Telephone (303) 774-8868 FAX (303) 774-8899 E-mail: [email protected] Randall M. Weiner, #23871 Law Offices of Randall M. Weiner, P.C. 1942 Broadway, Suite 408 Boulder, CO 80302 Telephone (303) 938-3773 FAX (303) 442-6622 E-mail: [email protected] COUNSEL FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I do hereby certify that on this 20th day of June 2005, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the non-participant's name: Not applicable. /s/ Jeffrey C. Parsons __________________________ Jeffrey C. Parsons

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