Is a county a “person?”
That is the question the Colorado Supreme Court will decide, after it announced on Monday it will hear a case that hinges on whether the language of the Solid Wastes Disposal Sites and Facilities Act permits enforcement against counties.
The issue stems from a dispute between La Plata County and the Colorado Department of Public Health and Environment. The county owns a landfill in Bayfield that closed in 1994. However, 10 years later, groundwater tests at the site showed elevated vinyl chloride, a gas associated with increased cancer risk.
CDPHE and the county initially cooperated to address the groundwater contamination, but in 2016 the department issued a compliance order. According to The Pine River Times, La Plata County balked at the directive because it would cost more than $1 million. The facility contains 100,000 cubic yards of trash from two decades of dumping.
The state’s solid waste law gives CDPHE power to require a “site and facility or person” comply with its rules. Specifically, a person is “an individual, partnership, private or municipal corporation, firm, board of a metropolitan district or sanitation district, or other association of persons.”
La Plata County argued that it did not fall within the solid waste act’s definition of a person, hence CDPHE could not order it to comply.
La Plata County sought a review of the order from the Office of Administrative Court, which rejected the county's contention. On appeal, a three-member panel noted the law did specifically reference “counties” in other provisions, but determined than an “association of persons” could reasonably apply to counties.
"Even absent the broadly defined ‘person,’ the parties do not dispute that the landfill nevertheless qualifies as a facility under the SWA,” wrote Judge Terry Fox in a March 2020 opinion. “Thus, the plain language of the statute authorizes the Department to issue an order to those who own or operate a facility to comply with the SWA.”
The court read the fiscal notes of an amended version of the act, which indicated local governments that operated waste facilities would pay increased penalties for violating CDPHE orders. While acknowledging that fiscal notes were not the same as the text of the legislation, the panel deemed it evidence enough to show the solid waste act’s enforcement provision covered counties.
“While the General Assembly never amended the definition of ‘person’ under the SWA to include counties expressly,” Fox wrote, “its subsequent amendments and related notes show the General Assembly recognized that counties and other governmental units are subject to enforcement actions under the SWA.”
The state Supreme Court will also take up the issue of whether the Colorado Governmental Immunity Act, which bars most liability lawsuits against public entities, shielded La Plata County from the CDPHE order. The appellate panel concluded that because the enforcement order was not a claim seeking compensation, the county could not assert immunity.
The case is Board v. Colorado Department of Public Health and Environment.