On April 3^rd, the U.S. District Court of Colorado vacated the U.S. Army Corps of Engineers’ (“USACE”) Record of Decision, Final Environmental Impact Statement, and approval of a dredge-and-fill permit for Denver Water’s expansion project of the Gross Dam and Reservoir in Colorado and remanded the matter back to the agency.  The Court temporarily enjoined Denver Water from continuing construction on the dam pending a hearing on what is “reasonable and necessary” to ensure that the dam will be structurally safe and issued a permanent injunction prohibiting the enlargement of the Gross Reservoir. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, Army Corps, Clean Water Act, Climate Change, Colorado, Injunction, NEPA, Permits, Water

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

On August 19, 2022, a magistrate judge of the Colorado District Court held that contribution-defendants cannot assert their own contribution claims under section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because they are only liable for their fair share of response costs.  Atlantic Richfield Co. v. NL Indus., Inc., No. 20-cv-00234-NYW-KLM, 2022 WL 3577261, at *6 (D. Colo. Aug. 19, 2022). The magistrate judge’s analysis resolved questions for potentially responsible parties (“PRPs”) seeking to assert contribution claims against other PRPs based on a claim of inequitable distribution of common liability in a 113(f) action. Id. at *4. Read More »

Share | Email| Comments|  Topics: CERCLA, Colorado, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund

This Blog Post was authored by Isaiah B. Kramer, a summer associate.

On June 7, 2021, the Colorado Supreme Court affirmed in part a decision of the Appellate Division and held that the Colorado Department of Public Health and Environment (“the Department”) may bring an enforcement action against a county under the State’s Solid Wastes Disposal Sites and and Facilities Act (“the SWA”). Bd. of Cnty. Comm’rs of La Plata v. Colo. Dep’t of Pub. Health, 2021 CO 43. In doing so, the Court found that the county was neither protected by sovereign immunity nor otherwise exempt from the reach of the SWA. Read More »

Share | Email| Comments|  Topics: Colorado, Contamination, Enforcement, Enforcement Action, Groundwater, Landfill, Legislation, Nuisance, Sovereign Immunity, Waste

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

In an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water

Earlier this month, the Colorado Supreme Court invalidated two municipalities’ bans on hydraulic fracturing, holding that the local ordinances instituting the bans were preempted by state law.  In City of Longmont v. Colorado Oil and Gas Association, No. 15SC667 (May 2, 2016), the Court held that an indefinite ban on fracking activity was preempted by the state’s Oil and Gas Act, which generally provides that fracking is permitted and supported in the state.  Similarly, in City of Fort Collins v. Colorado Oil and Gas Association, No. 15SC668 (May 2, 2016), the Court held that a local ordinance instituting a five-year moratorium on fracking that was slated to expire in 2018 was likewise preempted. Read More »

Share | Email| Comments|  Topics: Act 13, Colorado, Energy, Exploration, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania