City of Colorado Springs Not Immune from Lawsuit for Spreading Gas Plant Contaminants

Colorado Springs, Colorado: The District Court in El Paso County ruled late today that Colorado Springs may not shield itself from a lawsuit for environmental contamination from its old gas warehouse site at 25 Cimino Drive. The City had tried to use its “governmental immunity” to deflect claims that it had contaminated the Smokebrush Foundation for the Arts.

The Smokebrush Foundation recently moved the bulk of its operations to Manitou Springs to avoid the wind-blown and below surface coal tar contaminants created from the City’s process of burning coal to create a gas to light city streetlamps in the early part of the 20th century. “The Court concludes that the presence of the alleged coal tar contaminants on the [Smokebrush] Property was caused by the inadequacy of the structures used to contain the coal tar and hydrocarbons,” ruled Judge Timothy J. Schutz.

In the mid-2000s, Colorado Springs had begun remediation of the coal tar contaminants, and asbestos, as part of a plan to sell the property to a developer who planned to construct a hotel project. When the developer dropped out, the City did not follow through with the remediation. The District Court noted that governmental immunity is waived for public facilities when a public entity is in a position to discover and correct the condition.

Smokebrush founder Kat Tudor was extremely pleased with the Court’s decision. Executive director Don Goede adds that “When gusts of dirt blew across our fenceline during the City’s recent demolition, we knew we needed to act to protect our health and the safety of the visitors to our neighborhood from known carcinogens. Judge Schutz has now ruled that we are ‘entitled to pursue the full panoply of relief available under [our] claims, whether equitable or monetary.’”

Randall Weiner, the environmental lawyer who argued for Smokebrush, noted that the decision will provide motivation for cities to remediate pollution that threatens neighboring properties, knowing that they may not be immune from the migration of such contaminants decades into the future.

The Smokebrush Foundation has been enhancing the arts in Colorado Springs since 1992, and donated, in 2001, the “Uncle Wilber Fountain” which has entertained thousands of children since then.

A copy of the Court’s decision in Smokebrush Foundation v. City of Colorado Springs, Case No. 13cv1469 (El Paso County Dist. Ct) is available upon request.