The Colorado Supreme Court considered the ongoing effects of historic contamination in applying waivers to governmental immunity / LAW WEEK FILE

The City of Colorado Springs can be sued for injuries resulting from decades of environmental contamination that happened long before the establishment of a law that exempts the government from such claims, the Colorado Supreme Court said.

The court on Feb. 4 ruled in Smokebrush Foundation v. City of Colorado Springs that the city is not exempt from tort claims under the Colorado Governmental Immunity Act for injuries resulting from coal tar pollutants created by the historic use of a public gas facility. The court did, however, find that Colorado Springs was exempt on other claims. The court’s split ruling now sends the case back to district court.

Plaintiffs in the case brought tort claims against the City of Colorado Springs related to the airborne release of asbestos from demolition on city property and from the subsurface migration of coal tar pollutants created by coal gasification on city property. The Colorado Court of Appeals found that both claims were barred under the CGIA, but a majority of the Supreme Court disagreed.

CASE HISTORY

In 1925, Colorado Springs purchased a coal gasification plant and continued to operate it through 1931, when it converted it to natural gas. Over time, the gas plant went defunct and was replaced with other buildings that sat on that same property. In 2013, the city demolished those buildings and according to Smokebrush, “permitted the airborne migration of soils containing asbestos, heavy metals and other toxic substances”

Workers at Smokebrush began to experience respiratory illnesses and other conditions after the demolition. After testing the soil for contaminants, Smokebrush learned of the toxic coal tar pollutants that had been introduced into the land by the coal gasification plant between 1890 to 1931. 

The city moved to dismiss the claims, but Smokebrush claimed that the city waived its governmental immunity “because the City had negligently constructed and maintained the entire site of the former Gas Admin Building,” Justice Richard Gabriel wrote in the Supreme Court’s majority opinion. Smokebrush also argued that the city waived immunity under a public gas facility exception because the coal tar contamination came from the city’s operation and maintenance of the coal gasification plant. 

The Colorado Court of Appeals concluded that Colorado Springs had not waived immunity, though, because the city operated the coal plant prior to the CGIA’s existence, and nothing in the CGIA states the waiver applies retroactively.

Applying the CGIA

Although the Colorado Supreme Court agreed with the Colorado Court of Appeals regarding the asbestos contamination — finding the destruction of buildings does not fall within the scope of the CGIA’s maintenance and operation waiver — the difference of opinion came from the retroactivity of the law to the gas plant.

The court first discussed whether the coal gasification plant should be considered a “public gas facility,” since the term is not defined in the law. There is future room for such a definition to occur, but here, the court found that because the term was used in the context of other public utilities such as water and sewage, the court interpreted the General Assembly’s intent to refer to facilities that distribute natural gas, which applied to the coal gasification plant. 

In discussing the retroactivity of the CGIA, the court considered whether the claims dealt with the creation of coal tar from the operation of the plant or the migration of the tar to Smokebrush’s property. The court found that the issue was the migration and the ongoing presence of the toxic chemicals was a continued nuisance under Colorado law.

The court also considered the fact that despite the fact that the contamination happened before the CGIA was enacted, Smokebrush’s claims accrued after it was enacted. 

“Because the migration of the contaminants at issue was ongoing and continued after the CGIA’s enactment, applying the CGIA’s immunity waivers would not be a retroactive application of those waivers,” Justice Gabriel wrote in the majority opinion. “Rather, under the principles articulated in Hoery, the waivers would be applied prospectively, namely, to injuries caused by the City after the CGIA’s enactment.”

Dealing with Definitions

Although the court found that the destruction of a building doesn’t fit the dangerous condition requirement of the CGIA, it doesn’t make as broad a ruling to say that it never would. The CGIA includes a waiver for dangerous or negligent behavior on the part of a government in “constructing or maintaining” a public building. In this instance, the court discussed the definition of “construction” as it is used in the CGIA. “In our view, demolishing a building in its entirety, as occurred here, is the opposite of constructing it,” the court ruled. “Our conclusion does not mean that demolition work in a public building is never part of ‘construction’ or ‘maintenance’” it went on.

Dissenting Opinions

The court opinion came in a 4-3 split with justices Monica Marquez, Nathan Coats and Brian Boatright concurring in part and dissenting in part. 

The dissenting opinion stated that Colorado Springs should have been found to be immune on the issue of migrating coal tar contaminants. 

“Absent clear legislative intent to the contrary, we must presume that statutes such as the CGIA operate prospectively only,” Marquez wrote in the opinion.

“If the ‘pertinent conduct’ is simply the continuing migration of preexisting contamination … then critically, no applicable CGIA waiver exists for such ‘conduct,’” she wrote. “Instead, the only ‘pertinent conduct’ to which the waiver … could apply in this case is the historical coal gasification operations on the property prior to 1931. Because that activity predates the CGIA, the majority’s application of the waiver here is necessarily retroactive.”

—Tony Flesor

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