{"id":55745,"date":"2013-05-23T22:58:19","date_gmt":"2013-05-24T04:58:19","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/a-contamination-controversy\/"},"modified":"2026-03-28T18:39:20","modified_gmt":"2026-03-28T18:39:20","slug":"a-contamination-controversy","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/a-contamination-controversy\/","title":{"rendered":"A contamination controversy"},"content":{"rendered":"\n

\"Ray
Ray McCarty has put up a sign to bring attention to a gas spill that has destroyed the value of his land.<\/span>Sam Green\/Cortez Journal<\/span><\/figcaption><\/figure>\n<\/p>

A prolonged dispute over land contaminated by fuel at a former gas station on Highway 160 has reached an impasse.<\/p>\n

Wild Wild Rest, located between Mancos and Mesa Verde National Park, used to host motorcycle races and other entertainment events. The property also operated as a Sinclair Gas station and convenience store for many years.<\/p>\n

But all that is gone now, and what\u2019s left behind is a bitter feud between landowner Ray McCarty and an engineering firm hired by Fraley & Company, Inc., over cleanup procedures of fuel contamination.<\/p>\n

The frustration of living on contaminated land that has yet to be restored caused McCarty to recently install a large orange banner visible from the highway that reads: Massive Petroleum Spill, Toxic Site.<\/p>\n

Skull-and-crossbones graphics bracket the message. Other signs warn of benzene, a toxic petrochemical ingredient in gasoline.<\/p>\n

\u201cI put up the banner because nobody was paying attention, I was getting no action from anyone,\u201d McCarty said during an interview at the site. \u201cI feel duped and I feel that my land and all of its value has been destroyed.\u201d<\/p>\n

FEDERAL LAWSUIT<\/p>\n

The details of the case are complicated and accusatory, a saga that played out during a U.S. District court case that ended in March 2012.<\/p>\n

The problem began seven years ago in 2006 with spillage of leftover fuel during tank removal, McCarty said.<\/p>\n

Under state laws regulated by the Colorado Division of Oil and Public Safety (OPS), closed gas stations must remove fuel storage tanks and infrastructure, and clean up any contaminated land.<\/p>\n

The Sinclair station closed in 2004, and in 2006, OPS deemed Fraley & Co. the operator responsible for removing the tanks, officials said.<\/p>\n

But according to McCarty, when the three above-ground tanks were removed, residual fuels flowed back through gas lines and spilled out onto the land.<\/p>\n

\u201cThey didn\u2019t shut off the valves at the pumps, and thousands of gallons flowed onto the ground,\u201d he said.<\/p>\n

In attempt to remedy the situation, Fraley & Co. hired engineering firm Souder, Miller & Associates Inc. (SMA), which obtained a corrective action plan from OPS regulators, according to agency officials.<\/p>\n

McCarty says that while he was away, SMA drilled test holes and installed 22 wells on the property to determine where clean up and mitigation should occur.<\/p>\n

McCarty and his lawyer in the case, James Preston, sued SMA in federal court, arguing that the drilling was trespass because a written access agreement with the landowner was not in place.<\/p>\n

They further sought $1.7 million in damages, claiming negligent drilling techniques made the contamination worse by causing it to drain it into the aquifer and spread throughout the property.<\/p>\n

\u201cThey drilled through the Mancos shale bedrock, and into the artesian aquifer,\u201d McCarty said. \u201cThe spilled fuel is migrating below the bedrock is poisoning my land and the water table completely.<\/p>\n

\u201cI can smell it in the water, on the land; the stress of it is going to give me a heart attack.\u201d<\/p>\n

The federal court jury had a mixed verdict. They ruled that SMA engineers did trespass because a signed access agreement was not in place, but awarded McCarty only $1 in damages.<\/p>\n

The lawsuit was not filed against Fraley & Company specifically. Engineering firm SMA is listed as the defendant.<\/p>\n

CLEANUP STALLED<\/p>\n

SMA disputes claims that the contamination was more widespread, and asserts they had a verbal agreement to do the testing, according to court documents. The engineers said testing wells did not exceed 40 feet and were not 70 feet deep as claimed in the lawsuit. They also challenged the existence of an artesian aquifer under the property or that there was a massive spill from fuel tanks.<\/p>\n

Fraley referred questions to an attorney, Tim Gablehouse.<\/p>\n

Asked whether the test drilling had been done improperly, Gablehouse responded, \u201cThe jury\u2019s verdict speaks for itself, is all I can say,\u201d referring to the $1 awarded in damages.<\/p>\n

Now the cleanup has stalled and distrust has prompted McCarty to close off access to his property for any further mitigation.<\/p>\n

\u201cI just don\u2019t see any hope, so I put up the sign to raise awareness,\u201d he said.<\/p>\n

The stalemate puts a cleanup solution in limbo.<\/p>\n

\u201cThe ball is in his court now; there is nothing else Fraley can do until access is granted,\u201d Gablehouse said. \u201cOr (McCarty) is free to submit his own corrective action plan and get someone else to do the work. It is a fairly straightforward cleanup procedure there; it\u2019s not extraordinary.\u201d<\/p>\n

That lack of access is a major obstacle for a prompt cleanup, said OPS Director Mahesh Albuquerque.<\/p>\n

\u201cThese fuel cleanups at old gas stations are 99 percent of the time completed very smoothly, and owners are happy to have it done and behind them,\u201d he said. \u201cBut this case has been problematic because the operator and the landowner are separate parties and they are having some differences.\u201d<\/p>\n

McCarty would not be responsible for the cleanup, he said because it is covered by a state reimbursement program and involves no costs for the landowner.<\/p>\n

\u201cWe will send him a letter explaining the program that allows cleanup to occur and defers costs, but there has to be access agreed to onto the property to break the logjam,\u201d Albuquerque said.<\/p>\n

Mitigation includes removal of contaminated soil, re-contouring the property and installing monitoring stations, he said. Cleanup costs were estimated to be around $200,000 for the site, according to OPS officials. The company who does the work applies for the reimbursement, regulators said. But no application for cost recovery has been submitted as of yet.<\/p>\n

NEIGHBORS CONCERNED<\/p>\n

However, McCarty said he is not satisfied with the corrective cleanup plan as it stands, and he believes the contamination level is much higher than is being reported. Mitigation would involve a large drainage ditch to be installed, he said, and would cause a health hazard by directing contaminated runoff into Mud Creek, a tributary of the Mancos River, and off of the property.<\/p>\n

\u201cThe plume of contaminates has already migrated off of the property and under the highway,\u201d said Preston, McCarty\u2019s attorney in the case. \u201cIt has negatively impacted the water quality here as well. All of this property has been devalued, the test wells are in trespass violation, and there needs to be an agreement on damages before they could be let onto the property.\u201d<\/p>\n

Spilled fuel that has left the property could trigger more enforcement action from state regulators. A continued stalemate could also force the state to step in and conduct the cleanup, Albuquerque said, although a negotiated settlement with the affected parties is the primary goal.<\/p>\n

\u201cWe will continue to work with the landowner to allow access, because that is what will allow the clean up process to go forward,\u201d Albuquerque said.<\/p>\n

Neighbors were startled by the \u201cToxic Site\u201d banner, and the subject was raised at Monday\u2019s county commission meeting.<\/p>\n

\u201cWe were scratching our heads when we saw it, wondering why would someone do that?\u201d said neighbor Ted Ullman. \u201cIt makes me worried about health risks. There are 8-10 families around here. There needs to be some sort of monitoring installed so people know if it is coming their way.\u201d<\/p>\n

jmimiaga@cortezjournal.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Cleanup plan is in place, but landowner blocks access<\/p>\n","protected":false},"author":1,"featured_media":55746,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[174,13],"naviga_topic":[],"class_list":["post-55745","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-environmental-cleanup","tag-frontpage-lead"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/55745","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=55745"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/55745\/revisions"}],"predecessor-version":[{"id":56342,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/55745\/revisions\/56342"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/55746"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=55745"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=55745"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=55745"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=55745"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}