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Colorado Supreme Court will hear La Plata County, CDPHE lawsuit

County seeks attorney fees, possibly precedent-setting ruling on retroactive health orders
The Colorado Supreme Court will review a case between La Plata County and the Colorado Department of Public Health and Environment over a closed landfill west of Bayfield.

The Colorado Supreme Court announced Monday it will review a case in which La Plata County hopes to recover an estimated $337,000 in attorney fees as part of a four-year legal battle with the state of Colorado over a closed landfill.

The announcement was made via the Colorado Supreme Court’s website, which is updated every Monday.

La Plata County petitioned the Colorado Supreme Court in May to hear the case after the state’s Court of Appeals ruled the county was not immune from a work order issued by the Colorado Department of Public Health and Environment.

Jon Sarché, spokesman for the Colorado Judicial Department, said La Plata County has 43 days to file its opening brief. Then, CDPHE has 35 days to respond. The county then has the option for a final response within 21 days.

“It’s pretty common for one side or the other to ask for an extension of time to file a brief, so these deadlines could change,” Sarché said.

After this process, a hearing for oral arguments will be scheduled. The Colorado Supreme Court then has an indefinite amount of time to come to a decision on the case, Sarché said.

“This is great news for La Plata County,” said county spokeswoman Megan Graham.

Requests for comment to CDPHE were not returned Monday.

The issue stems from a now-closed landfill on County Road 223 west of Bayfield, which was built in the 1950s by a private company for small-scale municipal solid waste and sold to La Plata County in 1970.

The 32-acre landfill was closed, with state approval, in 1990, and holds an estimated 100,000 cubic yards of trash dumped over a 20-year period on 15 acres of the property.

The issue is, because of the landfill’s age, no liner was constructed to contain possible leakage. In 2004, groundwater-monitoring results at some wells showed elevated levels of vinyl chloride, a chemical that poses a risk to human health.

According to court documents, county officials maintain groundwater is not at risk of contaminating drinking water.

For the past decade or so, La Plata County worked with CDPHE on a cleanup plan that included extensive monitoring. Cleanup standards were attained at six locations, except for vinyl chloride levels at one well.

In 2016, CDPHE issued a work order that La Plata County believed was “unnecessary” and would cost more than $1 million to carry out. The county then challenged the work order in court.

In July 2018, Judge Suzanne Carlson ruled La Plata County held governmental immunity from such actions. La Plata County was awarded about $264,000 in reimbursed attorney fees and associated costs.

After CDPHE challenged the ruling, the Colorado Court of Appeals this winter determined Carlson erred in her judgment, saying La Plata County is not immune in the case and is not entitled to recover costs.

La Plata County then petitioned the Colorado Supreme Court, confident the court would take the case, arguing that CDPHE retroactively applying new rules to closed landfills is an issue in many other communities throughout the state.

“This has implications far beyond La Plata County,” Graham said. “I think it’s good the Supreme Court seems to be recognizing it’s worth a statewide conversation.”

The Colorado Supreme Court does not typically explain why the court decides to pick up a case, Sarché said.

“That’s just the way it’s always been done,” he said.

But, Sarché did say it is rare for a petition to be accepted. According to state records, in 2018, more than 900 similar petitions were filed with the Colorado Supreme Court. Of those, fewer than 10% were granted review.

According to the state’s website, the Supreme Court “generally does not grant discretionary review simply to correct an erroneous decision that will affect only the parties to that case.”

“Instead, because the court’s primary role in reviewing such decisions is to set precedent that develops and clarifies the law on important issues of broad impact, it grants review in a small percentage of cases.”