Glaser Weil Secures Major Victory in the Tenth Circuit for Environmental Restoration

Glaser Weil is pleased to announce the successful conclusion to a four-year-long pursuit of dismissal of over 250 individually named plaintiffs in a case involving the accidental release in August 2015 of “acid mine drainage” (AMD) from the abandoned Gold King Mine near Silverton, Colorado, the “Point Source” of the release. 

The AMD flowed downstream into the Animas and San Juan Rivers, and all the way to Lake Powell. Our client was working on that mine under contract to The United States Environmental Protection Agency (EPA). The release made front page news in The New York Times and elsewhere. The EPA has “taken responsibility” for the release.

Our client (Environmental Restoration, LLC, based in St. Louis) was sued by three sovereigns (New Mexico, Navajo Nation, and Utah) and later by a large group of individual plaintiffs, consolidated for all proceedings as the “Allen Plaintiffs,” whose claims were set to be tried in an initial group of 20 Bellwether Plaintiffs starting in November 2022.

On May 3, 2022, the Tenth Circuit ruled that our client was right to invoke a “Point Source Rule” and have the Court hold that the Allen Plaintiffs had missed their two-year deadline to sue in tort under Colorado law. The argument required an application of prior decisions on the use of the Point Source Rule. The District Court denied our client’s FRCP 12(b)(6) motion back in 2018 and applied New Mexico’s three-year limitations period.

Agreeing with the position in our original motion, the Tenth Circuit was unequivocal – “Because we hold that a district court must apply the point source state’s statute of limitations to state law claims preserved under the CWA, we remand to the district court for proceedings not inconsistent with this opinion.”  The Allen Plaintiffs’ requests for rehearing were denied on June 1, 2022.

The team was led by Terry Avchen, deceased and former partner and chair of the Environmental & Energy Department; Peter Sheridan, partner and chair of the Construction Department; and Michael Smith, litigation associate. Glaser Weil dedicates this win to and gives thanks for the careful and steady guiding hand of Terry Avchen who was a founding partner of Glaser Weil and who had recently passed. “Our only wish is that he could be here to savor this long-fought-for victory,” said Peter Sheridan.