DENVER – Colorado Attorney General Cynthia Coffman is preparing defensive and offensive strategies to legal disputes in the wake of the Gold King Mine spill.
“We haven’t foreclosed the option of litigation,” Coffman, a Republican, told The Durango Herald this week in an interview at her Denver office.
The downstream states of New Mexico and Utah have put Colorado and the Environmental Protection Agency on notice that a lawsuit could come.
The impetus is a toxic spill, in which an estimated 3 million gallons of mining sludge poured into the Animas River on Aug. 5, 2015, flowing into the San Juan River in New Mexico and Utah. The Animas River tested for initial spikes in heavy metals, including arsenic, lead, copper and aluminum.
While the EPA has acknowledged fault in the incident, Colorado could bear responsibility as the spill, north of Silverton, occurred within the state’s boundaries.
Some observers wonder why Coffman hasn’t sued the EPA, which admits that excavation during restoration work led to the blowout. Also, there are accounts that the agency knew a blowout was possible.
Coffman says she is not shy about suing federal agencies, having joined the state in three lawsuits, including most recently over implementation of EPA carbon standards, known as the Clean Power Plan.
“What we have here is a totally different animal because we have an environmental incident, whether accidental or intentional, whatever you want to call it, that requires a totally different approach,” Coffman said.
A litany of questions remain unanswered, including the state’s role in the blowout.
Conflicting reports have cast shadows over the conversation, and a fact-finding mission by Congress has at times become controversial, resulting in the House Committee on Natural Resources issuing subpoenas to federal officials.
An internal investigation by the EPA, released on Aug. 24, determined that the Colorado Division of Reclamation, Mining and Safety agreed to put drainage piping through the entrance of the mine, contributing to the spill.
But former Colorado Department of Natural Resources Director Mike King wrote in response: “DRMS did not have any authority to manage, assess, or approve any work at the Gold King Mine ... Operations at Gold King were entirely under EPA management using EPA contractors on an EPA response action.”
“Part of what we’re experiencing right now with different folks giving different accounts is probably typical of human nature,” Coffman said. “Everybody was at the same scene, but they saw different things and experienced it in a different way.”
It may come down to depositions to collect all the facts, she said.
“Am I prepared to apportion who has what liability? I’m not. I don’t feel like we know enough,” Coffman said.
If lawsuits are filed, they’re likely to drag on for years, if not decades, Coffman said, pointing to the complicated nature of environmental cases, the long list of parties involved and leaking mines in the area.
Hanging over the process is a potential Superfund listing, which would inject large amounts of cash into permanent restoration efforts at as many as 50 mining-related sites in the Gladstone area that have contaminated the Upper Animas River, Mineral Creek and Cement Creek for more than a century.
A Superfund listing itself could result in a lawsuit from environmental groups, who may fear that restoration efforts don’t go far enough.
Coffman said Superfund lawsuits are tricky, and there is a lack of institutional knowledge because Superfund listings are relatively rare. The attorney general’s office downsized its Superfund unit several years ago.
“You have a new generation of attorneys in this office who may not have seen a Superfund case,” she said.
Coffman said after receiving the two Notice of Intent to sue letters from New Mexico and Utah, her office assembled a 10-person Gold King Mine team, including environmental attorneys and governmental immunity and civil litigation experts.
The attorney general’s office also has held weekly conversations with the governor’s office. Coffman said Gold King Mine is “near the top of the list.”
“Litigation, it’s an important tool that attorneys have, but negotiation is equally important,” Coffman said. “Once you start litigation, the tone automatically changes, and sometimes irrevocably.”
Democratic Gov. John Hickenlooper is optimistic that he can reach resolution with the two states out of court. But he said: “If they sue us, I think that unifying effort will be diminished.”
Hickenlooper said he spoke with New Mexico Gov. Susana Martinez recently. New Mexico is concerned with water-testing plans, which the governor believes the two states can resolve.
“The EPA ... admitted responsibility, they said they would hold themselves to the same high standards they would any private-sector business and they were going to make good on what damages there were. Let’s wait and see before we pick up the telephone and call in the lawyers. Let’s see how well they live up to that commitment,” he said.
That lawsuits are being discussed, however, marks a shift in tone from when the attorneys general for Utah, New Mexico and Colorado stood together in Rotary Park in Durango days after the spill to discuss a unified effort moving forward.
Coffman said she is not surprised that New Mexico and Utah have put the state on notice, because they are protecting themselves. She said her office might consider filing a counter claim to address any lawsuit that comes. Still, she says the issue has not prevented the states from working together.
“It hasn’t shut down communication ... We have conversations on an ongoing basis,” Coffman said, adding that the three states are working together on a spring runoff monitoring plan.
For its part, the EPA says it has followed through with promises, providing $2 million for the spring runoff monitoring.
“EPA is considering variables such as populations residing near the rivers and the number of river miles within each jurisdiction in allocating the funds,” said an EPA spokeswoman. “While local governments will not receive funds directly from EPA, EPA encourages states and tribes to coordinate with local governments as they develop their monitoring plans.”
As for a separate monitoring plan led by the EPA: “It’s a yearlong effort to gather a robust set of scientific data to evaluate ongoing river conditions. We will determine if further monitoring is needed to characterize river conditions after the 2016 fall sampling event,” the spokeswoman said.
Coffman may have to intervene if the EPA does not follow through, or if the agency’s efforts seem inadequate. She sent the agency a letter on March 15 urging it to settle at least 51 unpaid claims from individuals, which total nearly $5 million. Coffman said she has not yet received a response from the agency.
“It’s easy to admit fault,” Coffman said. “It’s much harder to take responsibility and pay for the consequences of your actions.”