GUNNISON Wind River Petroleum may and should have known that it's Gunnison Top Stop's underground storage tanks were leaking in 2002 or before, according to a lawsuit filed this week against the company.
Gunnison City, two businesses and nearly four dozen individuals, all represented by attorney Peter Stirba, filed suit jointly against Wind River in Sixth District Court in Manti, seeking redress for damages caused by the leak.
Though no amount for damages is specified in the document, it's a fair guess that it could reach into the millions.
The suit's allegations connect some dots between July' s "catastrophic" 20,000-gallon spill, residents' reports of gas fumes long before then, and what the lawsuit calls Wind River's pattern of non-compliance with state regulations.
Records from the state Division of Environmental Response and Remediation show several instances when Wind River received notices of non-compliance for various deficiencies at its Top Stop store.
In most cases, Wind River performed the requisite action or supplied the proper documents to come into compliance.
The lawsuit, however, latches onto one glaring exception and uses it to allege that Wind River knew there was a problem years ago.
In December 2002, the state found Top Stop out of compliance with regulations governing the replacement of underground storage tank piping.
First, Wind River had failed to get the state's approval through a permit to replace the piping. Then the company did not submit necessary documentation afterward, including results of soil-sample testing.
The state only found out about the replaced piping after a compliance investigation in November, 2002.
Two non-compliance notices and nearly five years later, at the time last summer's leak was reported, Wind River still had not become compliant on this issue.
The lawsuit alleges that Wind River discovered the leak during the piping replacement, "and therefore fraudulently concealed their knowledge of a discovered leak" by simply ignoring the state's requests for compliance.
Top Stop's president, Craig Larson, could not be reached for comment.
Whether Wind River did actually know about the leak as early as that or not, plaintiffs' attorney Peter Stirba said, "Given the public records referenced in the complaint ... certainly we believe they knew they had a substantial leak of gasoline in June of 2007 and didn't report it."
Gunnison Top Stop's inventory records from the state show a consistent pattern of fuel loss at the end of June. The statistical method used to report the inventory allowed a maximum discrepancy of 131 gallons for the month. In June, the inventory report shows a net loss of 154 gallons.
But the lawsuit alleges that more gasoline than that was actually lost in June, and that Wind River fudged the numbers to make the problem look not quite so bad, and then made up for it by beginning to record higher losses by hundreds or even thousands of gallons beginning in July.
Wind River never reported the numbers to the agency, even though by federal and state law significant changes such as that are automatically considered to be suspect leaks and need to be reported within 24 hours.
Rather than report the suspected leak, the lawsuit states, "They intentionally concealed it with the hope that it would not be discovered."
As a result of the gas leak, businesses have closed; several residents have either had to leave their homes or have had health problems, or both; private and city property has been destroyed because of both the initial leak and the subsequent remediation; and business have lost patronage, with the trickle-up effect that the city has lost sales-tax revenue.
The lawsuit seeks redress for those damages.
"To put this in perspective wearing my hat as the Gunnison City attorney," Stirba said, "the first phase of this was the remediation and cleanup. And now, after the taxpayers of the state of Utah have paid $1 million and it's still ongoing we believe the crisis has passed. Now it moves to phase two, which is the economic impact that we think was catastrophic, and also the health issues. The state fund is not designed to address those issues, which are being addressed in this lawsuit."
It is the second lawsuit to arise from the Gunnison Top Stop gas leak. In January, a prominent businesswoman, Lila Lee Christensen, owner of Lila Lee Apparel, filed suit against Wind River for losses at her business, which she had to close because of the leak.In addition, the Utah Attorney General's Office is conducting a criminal investigation into Wind River's knowledge and actions regarding the gas leak.