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STATE LOSES CASE AGAINST OWNER OF GAS STATION

SHARE STATE LOSES CASE AGAINST OWNER OF GAS STATION

The state has lost its court case against the owner of a Vernal Top Stop gas station whose property was leaking petroleum into a neighboring farmer's field.

During a conference call Wednesday, 3rd District Judge Homer Wilkinson told attorneys for both sides that the state did not prove Top Stop caused the leakage in question.The ruling could make it more difficult for the state to recover costs of cleaning up environmental spills.

In 1991, the attorney general's office filed a suit on behalf of the Division of Environmental Response and Remediation against Wind River Petroleum, the parent company of Top Stop.

The suit came about a year after thousands of gallons of petroleum began leaking underground from the Vernal Top Stop's property into a farmer's field across the street.

Using the Hazardous Substances Mitigation Act, which provides a broad definition of parties responsible for the release of hazardous substances into the environment, the state argued that Top Stop is liable because it owns the property from which the release occurred.

But Doug Parry, an attorney for Top Stop, argued that liability can only be assessed to parties who are actually responsible for the release. In Top Stop's case, the previous owners - not Top Stop - contributed to the underground spill, Parry said.

Wilkinson apparently agreed. "The judge said the person who causes the release is responsible for the cleanup," Parry told the Deseret News. "We did not cause the release. It was already in the environment when we bought the property."

But Assistant Attorney General Doug Credille said the law doesn't require that the state prove who was responsible for the release. The statute lists "the owner or operator of a facility" in its definition of "responsible party."

"How the (pollutant) got there is irrelevant," Credille told the Deseret News. "It's leaking into the environment from Wind River's property. The judge wanted to go beyond the statute and wanted proof that Wind River caused it to be there. We don't think that's relevant."

Parry criticized the state for "going after" his client and not investigating previous owners of the property.

"The state knew of these other contributors" to the release but failed to prosecute them for political reasons, Parry said. The property had been owned previously by a state legislator and by a prominent Utah businessman, he said.

The state, however, "vehemently denies" that politics played into the prosecution of Top Stop, said Credille. The state didn't even know who the previous owners were until Top Stop brought it to the state's attention, Credille said.

Responding to Parry's criticism that the state was unfairly persecuting his client, Credille said, "We're just trying to protect the public health and environment. We're not trying to punish anyone. We're trying to reimburse the (Hazardous Substance Mitigation) fund."

Credille said the state has already paid more than $420,000 mitigating the Top Stop spill in Vernal.

"We will definitely want to consider an appeal," Credille said.

The Vernal case is a victory not only for the Vernal Top Stop but for small gas station owners around the state, said Paul Ashton, director of the Utah Petroleum Retailers Association. Many gas station owners simply cannot afford to pay for problems caused by previous owners, most of whom were big oil companies.

"The state's got to stop trying to get guys to clean it up who didn't do it," Ashton said. "There lies the question: Whodunnit? . . . The state was barking up the wrong tree."