Amendments for SJR17-043

Senate Journal, May 8
SJR17-043 by Senator(s) Coram; also Representative(s) McLachlan--Concerning urging the Attorney
General of Colorado to file a lawsuit against the federal Environmental Protection Agency
for damages caused by the spill at the Gold King mine.

Amendment No. 1(L.002), by Senator Coram.

Amend printed resolution, page 1, strike lines 1 through 9.

Strike pages 2 through 4 and substitute:

"WHEREAS, On August 5, 2015, a contractor hired by the federal
Environmental Protection Agency to perform mine reclamation work
breached a tunnel wall at the Gold King mine above Silverton, Colorado,
causing a massive spill of three million gallons of toxic wastewater to
pour into Cement Creek and flow into the headwaters that feed into the
Animas River; and

WHEREAS, The mustard-yellow-colored sludge, containing
nearly nine hundred thousand pounds of heavy metals such as arsenic,
lead, cadmium, copper, mercury, and zinc, poured into the waterways,
causing widespread environmental damage and substantial economic
harm to the citizens of Colorado; and

WHEREAS, The spill heavily contaminated the river water that
is the lifeblood of certain Colorado communities, harming the
environment, agricultural industry, wildlife, and tourism in the affected
area; and

WHEREAS, The Colorado agricultural and Native American
communities in the affected area depend on the Animas River for
irrigation and drinking water contaminated by the spill; and

WHEREAS, On August 10, 2015, the Governor of Colorado
issued executive order D 2015-007, declaring a state of emergency due
to the Gold King mine spill, and the Southern Ute Tribe, La Plata and
San Juan counties, and Durango and Silverton also declared disaster
emergencies, highlighting the gravity and severity of the impacts on
Cement Creek and the Animas River; and

WHEREAS, After the incident, local authorities closed the
affected waterways to all uses, causing significant local economic
damages; and

WHEREAS, The Governor's executive order D 2015-007 noted
that: "The extreme flow rate of the plume caused significant damage to
the Cement Creek stream bed resulting in sedimentation uptake and
downstream deposits in both Cement Creek and the Animas River. All
of these impacts require emergency action by the Southern Ute Tribe, the
State of Colorado, and local officials to avert loss of life, injury, danger
or damage, including but not limited to unknown economic, financial and
natural resources impacts"; and

WHEREAS, The United States Department of the Interior, Bureau
of Reclamation, issued a report entitled "Technical Evaluation of the
Gold King Mine Incident", dated October 2015, and concluded that the
spill was "preventable" and was caused by mistakes made by the federal
Environmental Protection Agency and its contractor; and

WHEREAS, On August 11, 2015, then-EPA Administrator Gina
McCarthy agreed without caveat to take "full responsibility" for causing
the spill and for its impact on our state and local communities, and the
Obama-era EPA also stated it would "expedite" resolution of "Federal
Tort Claims Act" filings by Colorado citizens harmed by the spill; and

WHEREAS, On January 13, 2017, the Denver Post reported that
an Environmental Protection Agency official, speaking on condition of
anonymity, said that the Environmental Protection Agency had conducted
a legal analysis and concluded that sovereign immunity protects the
Environmental Protection Agency and that the Environmental Protection
Agency had no legal authority to pay damages pursuant to the "Federal
Tort Claims Act" unless Congress authorized a lawsuit; and

WHEREAS, The federal Environmental Protection Agency has
actually paid some state and local government claims arising out of the
Gold King mine spill but rejected "Federal Tort Claims Act" filings made
by Colorado citizens and businesses harmed by the spill; and

WHEREAS, On January 13, 2017, a little more than eighteen
months after the spill, then-Administrator McCarthy notified claimants
that the federal Environmental Protection Agency determined that it is
"not legally able" to pay compensation for administrative claims brought
under the "Federal Tort Claims Act", further stating that the so-called
"discretionary function exception" bars such claims and that the
"circumstances surrounding the Gold King Mine incident unfortunately
do not meet the conditions necessary to pay claims"; and

WHEREAS, The state of Colorado has been harmed by the
actions of the federal Environmental Protection Agency in its handling
of the Gold King mine spill, the federal Environmental Protection
Agency admits its "full responsibility" for the spill, and the federal
Environmental Protection Agency should be held accountable for its
harmful actions; and

WHEREAS, The state should pursue the recovery of monetary
damages caused to the state of Colorado for those injuries; and

WHEREAS, The General Assembly recognizes the separation of
powers inherent between the legislative branch and the executive branch
and acknowledges that the Attorney General has authority under section
24-31-101, Colorado Revised Statutes, to appear for the state and
prosecute and defend all actions and proceedings, civil and criminal, in
which the state is a party or is interested when required to do so by the
Governor as legal counsel for the executive branch; and

WHEREAS, To date, the state of Colorado has not filed a lawsuit
against the federal Environmental Protection Agency to recover damages
as a result of the Gold King mine spill; now, therefore,

Be It Resolved by the Senate of the Seventy-first General Assembly
of the State of Colorado, the House of Representatives concurring
herein:
(1) That the General Assembly urges the Governor of Colorado,
the Department of Public Health and Environment, and the Natural
Resources Trustees, in consultation with the Colorado Attorney General,
to sue the federal Environmental Protection Agency on behalf of the state
of Colorado to seek compensation for the harm caused to the state by the
Gold King mine spill; and

(2) That the General Assembly strongly urges and requests the
Governor of Colorado, the Colorado Department of Public Health and
Environment, and the Natural Resources Trustees, in consultation with
the Attorney General of the state, to file a lawsuit against the federal
Environmental Protection Agency to recover environmental and
economic damages caused to the state and its citizens by the federal
Environmental Protection Agency and its contractor as a result of the
Gold King mine spill.

Be It Further Resolved, That copies of this Joint Resolution be
sent to Governor John Hickenlooper, the Executive Director of the
Colorado Department of Natural Resources, the Executive Director of the
Colorado Department of Public Health and Environment, Attorney
General Cynthia Coffman, and each member of Colorado's delegation to
the United States Congress.".

Page 1, line 101, strike "THE ATTORNEY GENERAL OF COLORADO " and
substitute "COLORADO'S EXECUTIVE BRANCH".


The amendment was read at length and passed on the following roll call vote:

YES 22 NO 13 EXCUSED 0 ABSENT 0
Aguilar N Garcia N Kerr N Scott Y
Baumgardner Y Gardner Y Lambert Y Smallwood Y
Cooke Y Guzman N Lundberg Y Sonnenberg Y
Coram Y Hill Y Marble Y Tate Y
Court N Holbert Y Martinez Humenik Y Todd N
Crowder Y Jahn Y Merrifield N Williams A. N
Donovan Y Jones N Moreno N Zenzinger N
Fenberg Y Kagan Y Neville T. Y President Y
Fields N Kefalas N Priola Y

On motion of Senator Coram, the resolution, as amended, was adopted by the following
roll call vote:

YES 25 NO 10 EXCUSED 0 ABSENT 0
Aguilar N Garcia Y Kerr N Scott Y
Baumgardner Y Gardner Y Lambert Y Smallwood Y
Cooke Y Guzman N Lundberg Y Sonnenberg Y
Coram Y Hill Y Marble Y Tate Y
Court N Holbert Y Martinez Humenik Y Todd N
Crowder Y Jahn Y Merrifield N Williams A. N
Donovan Y Jones N Moreno Y Zenzinger N
Fenberg Y Kagan Y Neville T. Y President Y
Fields Y Kefalas N Priola Y

Co-sponsor(s) added: Baumgardner, Cooke, Crowder, Gardner, Grantham, Holbert,
Lambert, Lundberg, Marble, Martinez Humenik, Neville T., Priola, Scott, Smallwood,
Sonnenberg, and Tate.


House Journal, May 9
20 SJR17-043 be amended as follows, and as so amended, be referred out
21 to the House for final action:
22
23 Amend engrossed joint resolution, page 2, strike lines 32 through 35.
24
25 Strike page 3.
26
27 Page 4, strike lines 1 and 2 and substitute:
28
29 "WHEREAS, The state of Colorado and the citizens, businesses,
30 and environment of Southwestern Colorado have been harmed by the
31 Gold King mine spill; and
32 WHEREAS, The General Assembly recognizes the separation of
33 powers inherent between the legislative branch and the executive branch,
34 and acknowledges that the Attorney General, under section 24-31-101,
35 Colorado Revised Statutes, is legal counsel for the executive branch, a
36 position that empowers the Attorney General to explore legal avenues for
37 redress of grievances and to pursue all such channels to their fullest
38 extent; and
39 WHEREAS, Lawsuits are a costly, time-consuming, and
40 potentially ineffective and counterproductive remedy, and should be
41 pursued as a last resort once all other legal remedies have been exhausted;
42 and
43 WHEREAS, The federal Environmental Protection Agency has
44 declared the Gold King mine a Superfund site in accordance with the
45 provisions of the federal "Comprehensive Environmental Response,
46 Compensation, and Liability Act" (CERCLA), 42 U.S.C. sec. 9601,
47 which allows states and Native American tribes to recover natural
48 resources damages caused by hazardous substances; now, therefore,".
49
50 Page 4, strike lines 5 through 18 and substitute:
51
52 "(1) That the state of Colorado recognizes that the federal
53 Environmental Protection Agency was involved in the Gold King mine
54 spill and that various conditions may have contributed to the event,
55 including actions or failures to act by the federal government and private
56 mine owners involved at the Gold King mine site;
2017 Page 1412 House Journal--119th Day--May 9,
1 (2) That the federal Environmental Protection Agency and the
2 federal government should, to the fullest extent possible, act to make
3 whole the people and businesses harmed as a direct result of the Gold
4 King mine spill;
5 (3) That the Governor of Colorado, the Natural Resources
6 Trustees, and the Colorado Department of Public Health and
7 Environment, in consultation with the Attorney General, should
8 investigate the availability of natural resources damages under CERCLA
9 as a mechanism to obtain payment for injuries related to the Gold King
10 mine spill;
11 (4) That the state of Colorado and the communities affected
12 should cooperate in and support the ongoing Superfund process to remedy
13 the water pollution problems and secure funds going forward to help
14 downstream communities; and
15 (5) That the Governor of Colorado, the Natural Resources
16 Trustees, the Colorado Department of Health and Environment, and the
17 Attorney General should vigorously pursue all other legal options
18 available for making whole the people and businesses harmed by the spill,
19 and should pursue a lawsuit as the last option.".