From The Durango Herald (Peter Marcus):
Colorado Attorney General Cynthia Coffman is preparing defensive and offensive strategies to legal disputes in the wake of the Gold King Mine spill…
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…
“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…
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.”