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

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Civil Action No. 01-cv-2163-BNB-MEH PLAINTIFFS' RESPONSE IN OPPOSITION TO EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES

EXHIBIT 7

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02163-BNB-MEH

3 SIERRA CLUB and MINERAL POLICY CENTER, 4 Plaintiffs, 5 vs. 6 EL PASO GOLD MINES, INC., 7 Defendant. 8 __________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S TRANSCRIPT TRIAL TO COURT - DAY 3 __________________________________________________________ Proceedings before MAGISTRATE JUDGE BOYD N. BOLAND, United States Courthouse for the District of Colorado, commencing at 8:57 a.m. on Wednesday, February 7, 2007, in Courtroom A-401, Denver, Colorado. A P P E A R A N C E S JOHN M. BARTH, Attorney at Law, Post Office Box 409, Hygiene, CO 80533, appearing on behalf of the Plaintiffs. JEFFREY C. PARSONS, Attorney at Law, 2260 Baseline Road, Suite 101A, Boulder, CO 80302, appearing on behalf of the Plaintiffs. JAMES L. MERRILL, STEPHEN D. HARRIS and MICHAEL J. GUSTAFSON, Attorneys at Law, from the Law Firm of Merrill, Anderson & Harris LLC, 20 Boulder Crescent, Colorado Springs, CO 80903, appearing on behalf of the Defendant. ADRIENNE WHITLOW, CSR 8000 E. Girard Ave., #109 Denver, CO 80231 Proceedings Reported by Mechanical Stenography Computer-Aided Transcription

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. BARTH: Q A Q A Q A Q Klco.

P R O C E E D I N G S (In open court at 8:57 a.m.) THE COURT: Mr. Klco, if you'd approach

the witness stand, raise your right hand, please. (KENNETH STEVEN KLCO, WITNESS, SWORN.) THE COURT: Please be seated. State

your full name and spell your last name, please. THE WITNESS: That's K-l-c-o. THE COURT: Mr. Barth. My name is Kenneth Steven

DIRECT EXAMINATION

Good morning, Mr. Klco. Good morning. Mr. Klco, what's your occupation? I'm a professional geologist. Do you work on mine sites at all? Yes, I do. Would you just briefly describe the type

of work that you do at mine sites. A I assist mining operators in the

planning and operation of their mineral deposits. Q Have you ever had any occasion to

observe waterflow at mine sites? A Yes, I have.

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Q

Is that something that you regularly do

as part of your practice? A That is a common component of my work,

Q

And does that include visible

observation of flow from a source to a receiving stream or a receiving water? A Q Yes, it does. Mr. Klco, have you ever inspected the

interior of the Roosevelt Tunnel? A Q Yes, I did. How many occasions did you inspect the

interior of the Roosevelt Tunnel? A Q A Q A I entered the Roosevelt on one occasion. And what date was that? August 21, 2001. What was the purpose of that inspection? The purpose of the inspection was to

enter the tunnel and inspect and report on the ground conditions and waterflow of the structure. Q And what length of the Roosevelt Tunnel

did you inspect? A I traversed the Roosevelt Tunnel from

the added entrance, the portal entrance, approximately 12,000' into the tunnel.

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Q

When you say traverse, you mean you

walked from the portal -A Q A entrance. Q A Okay. Yes. Is that past the El Paso shaft? It was approximately 600' north Yes. How far in, did you say? To a point approximately 500' from the

and east of the El Paso intersect with the Roosevelt Tunnel. Q When you first entered the tunnel, why

don't you just describe for me what the interior of the Roosevelt Tunnel looks like. A The first several thousand feet from the

entrance of the tunnel constructed approximately 50 years or more before my entry, my inspection date, still retained pretty much the same dimensions as the original tunnel, approximately 10' by 10', relatively good ground conditions, wet underfoot. For the first

several hundred feet, we're actually walking on wooden planks that had been laid on the floor of the tunnel. There was a remnant of a rail system which we walked on slightly elevated from the drainage area along the right rib of the tunnel, so we traversed the left rib of the tunnel.

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Q

Why don't we just stop right there.

I'm

just kind of more getting at just the very entrance, you know, what does it look like. On August 21, 2001, did you make any observation of whether water at the entrance of the Roosevelt Tunnel was exiting the tunnel? A Yes. Water was flowing along the right

rib in a drainage ditch and flowing out from the entrance of the tunnel and leaving the entrance of the tunnel. It flowed a short distance from the entrance,

flowed into a ditch, into a black plastic culvert that crossed the county road and then flowed into Cripple Creek within a short distance, a few feet. Q A Q A And did you observe the water flowing? Yes. Water was flowing? Yes. Exiting the tunnel and flowing

into Cripple Creek. Q And in describing the Roosevelt Tunnel,

instead of using kind of technical terms like "rib" and things, if you could use "floor," "walls," and "ceiling," that would all help us so we're all using the same terminology. So again, why don't we start with, just describe generally the first 100 yards of the

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Roosevelt Tunnel when you entered. A Well, the tunnel was excavated in a

massive granite bedrock, so it had retained reasonable tunnel conditions. relatively solid. The walls and the roof were Water was flowing on the floor, wet

underneath, but not walking in water, as I said, slightly elevated on the left-hand side of the tunnel. On the right-hand side, water was flowing in

a small drainage ditch. Q Okay. So is it your testimony that at

least sections of the floor of the Roosevelt Tunnel, there's an area that's carved out for water to flow in? A Yes. All along the tunnel that I

traversed, the right-hand side basically was slightly lower and contained the drainage structure, just a shallow ditch. The left-hand side of the tunnel which

we walked on, which the entry party walked on, was elevated a foot or so. A remnant of the rail bed,

most of the rail and timbers had been removed, except in some of the upper sections where you could still see remnants of the rail. The piping and ditch were

located along the right-hand side of the tunnel. Q Okay. And you just mentioned that there How many people, roughly,

was an entrance party.

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joined you on that day in the inspection of the tunnel? A I recall. There were 15 entrance participants, as I had an experienced miner along with me to

monitor ground conditions and air conditions, and CC&V had, I believe, three party members. Q And by "CC&V," do you mean the Cripple

Creek and Victor Gold Mining Company? A Q Yes. Okay. Did you encounter an intermediate

shaft somewhere between the El Paso shaft and the portal? A At approximately 8000' from the

entrance, the tunnel incurred the intersection of what they call the development shaft, a vertical shaft that intersected the Roosevelt Tunnel. This development

shaft, according to the literature and the inspection, was a structure constructed about the same time as the Roosevelt Tunnel to facilitate the excavation of the tunnel. It had collapsed since the time of its

construction so that it blocked the primary excavation, and you could not progress any farther on foot without moving through the go-around, which was a small excavation along the left side of the tunnel which allowed personnel to move around the cave-in of

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the vertical shaft. Q Okay. Today I'm just asking, I know

that you've reviewed documents outside, or prior to your entry into the tunnel, and you've done other things other than your tunnel inspection; but today you don't need to refer to any outside documents or information. I'm just asking you questions about what

you saw during your August 21, 2001 inspection. Did you observe, on August 21, 2001, any water coming into the Roosevelt Tunnel from the intermediate shaft that you described? A No. The cave-in was relatively dry Certainly, the muck

above the floor of the Roosevelt.

at the floor of the Roosevelt was wet, but I did not observe any water flowing or any wet material at the intersection of the cave-in of the vertical shaft in the Roosevelt Tunnel itself. Q Was there water in the Roosevelt Tunnel

floor at that intersection? A Q Yes. Now I'd just like to ask you, between

the portal and the intermediate shaft, did you observe continuous flow between those points? A Yes. At all points, I observed water

flowing in the ditch along the right-hand side of the

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tunnel. Q Okay. Now let's talk about the stretch

between the intermediate shaft and the El Paso shaft, okay? Did you walk through that entire section? A Q Yes, I did. And did you observe continuous waterflow

between the El Paso shaft and the intermediate shaft? A Yes. Above points from the intersection

of the intermediate shaft to the El Paso, generally conditions were much more wet than below, due to fall of ground, material that had caved from the roof to the walls of the tunnel and had backed up waterflow so that there would be pools anywhere from two feet to 3 or 3 1/2 feet, maybe, deep behind the fall of ground which an entry party would need to traverse or walk through in order to gain the upper end of the pollutant. So it would be deepest behind the fall of

ground, directly behind the fall of ground, and then normally would decrease in depths as one progressed up the tunnel until you encountered another fall of ground and another backing up of water. Q Okay. At these falls of ground, did any

of these falls of ground completely block the flow of water from the up-gradient portion to the portion down-gradient?

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A

No, I did not observe a complete

blocking off of water. Q Did you observe water flowing around

these blockages? A Yes. It was common for the water to

back up and spill over the fall of ground or move around or through the muck that had fallen onto the floor of the tunnel. Q Now, did you see any inflow of water

into the tunnel between the portal and the El Paso shaft? And I'm excluding the El Paso shaft now. Just

in the granite that you described between the portal and the shaft. A Between the intermediate shaft and the

El Paso, the entry party and I observed a number of instances where water was entering the tunnel in small amounts dripping from the roof of the tunnel or from the ribs of the tunnel. Q Did you make any observations at the El

Paso shaft itself? A Yes. At the El Paso shaft, at

approximately 12,000' from the entrance into the tunnel, the Roosevelt Tunnel widened considerably to facilitate the intersection area where there was obviously more transportation structures built, rail

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spurs were brought into this area, the tunnel widened to 20 or 25' wide and was excavated to a height to facilitate the area around the base of the El Paso shaft and the intersect, which was just off to the left or to the south and west of the main portion of the Roosevelt Tunnel so that you were looking up the main shaft of the El Paso mine structure and the remnants of the main shaft which included wooden structures, cribbing, piping, a lot of muck or rock and material that had caved in to this general area. So you were in an area, a chamber, so to speak, of a height of 40 or 50' and a width of 25 or 30' wide. Over this entire structure, the bottom end of the El Paso shaft, water was moving, it was raining down over all of this material at a rate for exceeding anything that I had observed up to that point. It was

difficult to estimate a flow rate simply due to the fact that it was raining down and moving and disbursed in this area, collected on the floor and drained, then down the Roosevelt Tunnel from which I had traversed. Q So can you describe was there a

continuous flow -- did you observe continuous flow from the El Paso shaft to the portal on August 21, 2001? A Yes, I did.

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Q

How do you know that there was continuous

flow between those two points? A Well, I could walk along this stretch of

the ditch and observe it as I very slowly and carefully walked along the Roosevelt Tunnel. The

footing was very poor, so it demanded that anyone traversing that tunnel would be taking their time and going slow, and I could observe the flow of water along that entire reach. Q Did you feel it on your feet when you

were walking through it? A Oh, yes. At times you were in wet

conditions that were slightly elevated from the water, and other times you were walking in the water. Q A Q head lamp on? A Q lamps on? A Each party member had their own lamp, Yes, I did. Okay. Did others in the party have head Could you hear it? Yes. Could you observe it -- did you have a

Q

Did you observe any areas of the

Roosevelt Tunnel up-gradient or above the El Paso

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shaft? A Yes. I traversed approximately 600'

above the intersection of the El Paso shaft and the Roosevelt Tunnel. Q And what were your observations above

the El Paso shaft with regard to waterflow? A In general, the conditions in the tunnel

were dryer than the main Roosevelt Tunnel below the El Paso intersect. The drainage ditch that was still in There were pools of

place was not flowing water.

water lying in the bottom of the ditch, but water was not moving down the tunnel. In general, the roof and

wall conditions were dryer, and dryer underfoot. Q At any location between the portal and

the El Paso shaft, did you observe any fractures in the floor or holes in the floor or any structures that would cause significant quantity of water to leave the floor of the Roosevelt Tunnel? A No, I did not. THE COURT: Regardless of geological

structures, did you ever observe the amount of water flowing between the El Paso shaft and the portal decrease significantly? THE WITNESS: Q (By Mr. Barth) No, I did not. Okay. Mr. Klco, have

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you ever reviewed the November 16, 2000 videotape of an inspection of the Roosevelt Tunnel that was done by Cripple Creek and Victor Gold Mining Company? A Q Yes, I have. Could you compare what you observed in

that video to the conditions that you observed on August 21, 2001? A I would say that the conditions that I

viewed in the video were pretty much the same as the conditions during my inspection in August 21st of 2001. MR. BARTH: THE COURT: No further questions. How many seeps did you see,

Mr. Klco, between the portal and the El Paso shaft, but not including what was coming in at the shaft, how many seeps did you see? THE WITNESS: A minimum of three seep They varied in the rate

areas, maybe as many as five.

of inflow of water from a constant small stream to just drips from the ceiling, from the roof in the walls of the tunnel. few gallons a minute. None of them were more than a Relatively small amounts of

drips entering the tunnel in those locations. THE COURT: And although I heard you say

you couldn't estimate the flow at the El Paso shaft,

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by comparison was it some greater, significantly greater than the largest seep? THE WITNESS: It was of significantly

greater, on the order of several times the waterflow that I -- several times of the total waterflow that I saw until that point; and more likely, more than five times the total waterflow that I'd seen entering the tunnel prior to the El Paso intersect. THE COURT: Mr. Merrill.

REDIRECT EXAMINATION BY MR. BARTH: Q Mr. Klco, can you describe the level of

competence that you have with your observations that there was continuous waterflow from the El Paso shaft to the portal? MR. MERRILL: as vague. I object to the question

I don't know what level of competency is. THE COURT: Overruled: You may answer.

A

I have a high level of confidence that

my observations were -- my observations were that there was a continuous flow of water from the El Paso intersect to the exit of the Roosevelt Tunnel. Q observations? A I'm very confident that that was the And how competent are you in your

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case. MR. MERRILL: THE COURT: may step down. No further questions. Thank you, Mr. Klco. You

Can this witness be dismissed? MR. BARTH: THE COURT: Yes. You're free to go. Are we

ready for Dr. Maest to resume the stand, Mr. Merrill? MR. MERRILL: THE COURT: the stand, please. under oath. THE WITNESS: THE COURT: Thank you, your Honor. Mr. Merrill. Yes, your Honor. Dr. Maest, if you'd resume

And please remember you're still

REDIRECT EXAMINATION BY MR. BARTH: Q Dr. Maest, you identified four different

pollutants for the Court that you said you believe were being discharged from the El Paso shaft to the portal, and those were sulfate, aluminum, manganese and zinc. A Q Yes. Is any one of those pollutants

particularly good for trying to trace whether pollutants from the El Paso shaft make it to the portal?

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conducting what a computer would be doing? A Well, I'm using information that was

generated from a geochemical model and using site specific data to see where those samples would fall, yes. Q And is that consistent with what a

computer model would build? A Yes, it is. MR. BARTH: * No further questions. * * * *

CERTIFICATE I certify that the foregoing is a correct transcript to the best of my knowledge and belief (pursuant to the quality of the recording) from the record of proceedings in the above-entitled matter. S/Adrienne Whitlow 8000 E. Girard Ave., #109 Denver, CO 80231

(303) 695-1121