clock menu more-arrow no yes

Filed under:

CLEANUP RULING COULD CLEAN OUT FIRM

Buying land that is later found to be polluted could leave a landowner bankrupt under a recent Utah Supreme Court ruling.

The Department of Environmental Quality has the power to make landowners clean up waste of their land even if they didn't create the waste, the court ruled.Landowners then are responsible for suing the previous landowner to recover the cleanup costs, the ruling says.

The unanimous ruling affirmed DEQ's power to sue those who own the land for the cost of waste cleanup, even if DEQ can't prove that the landowner left the waste.

But that ruling is contrary to the Utah Legislature's intention, said James Holtkamp, a local attorney who helped draft the law.

"We had obviously - and now unsuccessfully - tried to avoid that result," he said.

"We are appalled at the verdict," said Kevin Murray, attorney for Wind River. "More than that, I am surprised at the Utah Supreme Court's misunderstanding of the law."

The ruling will require Wind River Petroleum, the owner of a Vernal Top Stop gas station, to pay the state nearly $500,000 for the cost of cleaning up a petroleum leak coming from the Top Stop property.

The state removed more than 22,000 gallons of trapped petroleum from the land after a farmer reported that "what looked like straight diesel" was draining through a culvert onto his land.

Wind River bought the land and ran the Top Stop for a year before the leak was discovered. The prior owner, Olympus Oil Co., operated a service station there.

Several studies failed to prove whether Wind River or Olympus Oil caused the leak.

The state is pleased with the ruling because it allows taxpayers to be paid back for the cleanup, said Assistant Utah Attorney General Lee Dever.

If the state can't sue a present owner for cleanup costs, and a previous owner has gone bankrupt, the taxpayers are left with the tab, he said.

As it is, Wind River is left with the tab, Murray said.

So Wind River should sue Olympic Oil, Dever said. "If the pollution didn't come from them, then they can attempt to find the people who may have put some of the pollution there and have those people pay part of the cost," he said.

The ruling affirmed a landowner's right to do that, he stressed.

Two justices - Justice Richard Howe and Associate Chief Justice I. Daniel Stewart - agreed with the court's overall ruling, but dissented over a landowner's liability.

"It would place a heavy financial burden on a landowner to be singled out and made to bear the burden of ascertaining who else may be liable," Howe said.

He did not believe DEQ should have the power "to blindly bring its action for reimbursement against a single responsible party and ignore others," he wrote.

But DEQ did not appear to do that in this case, he wrote.

The high court's ruling vacates a state judge's ruling that Wind River did not have to pay the cleanup costs.

The case has been sent back to the judge, who will now issue a ruling in keeping with the court's decision.