DERR-2025-001423

MEMORANDUM
Confidential-Attorney Client Privilege
TO: Avery Holyoak, LUST Remediation Manager
TO: Eileen Brennan, LUST Remediation Scientist
FROM: David McKnight, Asst. Attorney General
DATE: February 16, 2023
RE: PRICE RENTAL, 175 South Carbon Avenue, Price, Utah; Facility 5000405, Release HOK; Current Assessment of Responsible Parties
Ownership of Property and USTs Timeline
There was no title or chain of ownership search for this site in the AG or Agency file. The chain of ownership or title below is from the facts that were stipulated to and adopted by
a court order and from other information in the case file.
Phillips Petroleum owned the property from the late forties to 1956.
It is uncertain when the USTs were installed but there are comments of around 1947.
Duane & Velma Frandsen purchased the property from Phillips Petroleum and became the owner in 1956.
In 1974, Duane Frandsen ceased operating the station and emptied the USTs of all product and used the property for other purposes.
Frank and Carol Feichko purchased the property from theFrandsens and became the owner in February of 1984.
In the deed from Duane and Velma Frandsen to Frank & CarolFeichko, Frandsens maintained ownership of the USTs
Duane Frandsen removed the USTs in May of 1992 and they were verified as having been previously emptied.
It was at the time of the UST closure that the petroleum release was discovered.
Discussion of Responsible Parties
Based on the court documents in the agency file there are only three possible responsible parties in the case. Phillips Petroleum installed the USTs in the late 1940s and owned the facility
until 1956 when they conveyed the property to Duane and Velma Frandsen. Phillips Petroleum cannot be pursued as a responsible party. From court filings it appears DERR did include them
originally as a responsible party butin February 2005, Phillips by a stipulated court order was dismissed from the case with prejudice. No reason is given for Phillips being dismissed
from being pursued as a responsible party. The AG file indicated negotiations for Phillips to pay a settlement amount for investigation and remediation. There are no court documents
indicating that negotiated settlement was the reason for the dismissal. It could be also that Phillips owned the tanks when they had only been in operation for less than 10 years. Currently
it has been 65 to 70 years since Phillips had any ownership or operator connection to the tanks.Perhaps DERR concluded that it would be difficult to prove any meaningful level of liability.
Either way, the dismissal order released them from the matter with prejudice meaning they can’t be rejoined even if some level of liability could be shown.
The Frandsens owned the USTs from 1956 to 1992 when the USTs were removed. The Frandsens actively operated the USTs from 1956 to 1974 when they closed the station and emptied the USTs
of their product. The Frandsens were owners of inactive emptied USTs from 1974 to 1992 even though they conveyed the real property to Frank and Carol Feichko in 1984. In the 1984 deed
of conveyance, the Frandsens maintained ownership of the USTs. Thus, the Frandsens remained owner of the USTs until the Frandsens had them removed in 1992. Duane Frandsen has been the
focus of responsibility for investigation and remediation.
Although the Feichkos never owned the USTs, they could be considered a responsible party as operators of the USTs from 1984 to 1992 when the USTs were removed. Still, they were never
actively pursued as responsible parties in the previous court actions on this site. It is probable they were not pursued as a responsible party since their status as operators were over
emptied and inactive tanks at a facility that was no longer a gas station. Their responsibility and liability would have been minimal to none. Frank Feichko is now deceased, and Carol
Feichko is in her late eighties with no signs of possessing any notable resources to go after.Accordingly, the Feichkosremain and areeven more a non-viable option topursueas to any kind
of action on this site.
With Phillips Petroleum being dismissed with prejudice thereforefree from any possible further action and Feichkos having no real potential for liability, as stated DERR past actions
as to responsible parties with this site was solely with the Duane Frandsen.
Duane Frandsendied in 2002 while DERR was pursuing aninvestigation/remediation enforcement action against him. For reasons unclear in the AG file and agency file on this case, after
Duane Frandsen’s death the Frandsen estate (that was in probate)through the estate’s personal representative in February 2005 stipulated by court order to perform investigation and corrective
action at the site. The Frandsen estate and later surviving children have performed investigation and remediation since that time.
The stipulated order does not spell out the legal authority that is the basis of having the Frandsen estate enter the stipulated agreement and order. The stipulated order does have a
sentence saying the Frandsen estate is responsible under the UST Act to perform investigation and remediation. However, there is no further legal authority put forth on how a personal
representative of an estate in probate under the Utah Probate Code is authorized to carry out environmental investigation/remediation responsibilities for a deceased responsible party.
It may be that it was based on a broad reading of a personal representative’s authority to “settle claims” of the estate under Utah Code 75-3-714(27). But that is a guess.
Either way, Wayne Frandsen who was the personal representative of the Duane Frandsen estate has performed investigative and remedial activity even as recent as January 2023. Yet recently
Wayne Frandsen is also questioning if the Duane Frandsen estate still has any responsibility to continue following the stipulated order. In a letter datedMarch 31, 2020, Wayne Frandsen
sought to be exempted from further responsibilities as he stated that the estate was closed in 2007 with all Duane Frandsen’s assets distributed and therefore under the probate code
there is no further responsibility to adhere to the stipulated order. DERR responded to this updated information by requiring Wayne and his siblings to continue with the investigation
and remediation until a site closure although they could submit an exemption request through DERR’s exemption form.
In a letter dated, November 6, 2020, Wayne Frandsen again when sending DERR some forms, asserted that Duane Frandsen’s estate has long beenclosed and he no longer is the personal representative
of the estate. Further, DERR cannot hold him and his siblings responsible for the investigation and remediation. In a letter dated October 5, 2021, Wayne Frandsen asked why his letter
asking to be exempted has not been responded to.
In a May 16, 2022, letter from DERR the agency informed Mr. Frandsen that the agency would no longer send cost recovery oversight invoices. But the letter still gave direction on further
investigation/remediation action to determine how close to closure the site is. DERR has yet to specifically respond to Wayne Frandsen’s assertion that he and his siblings are not responsible
to abide by the Duane Frandsen probate estate stipulated order now that probate is closed.
In the Utah Probate Code, the personal representative of an estate is responsible to “proceed expeditiously with settlement and distribution of a decedent’s estate” without involving
the court. If a court action is necessary the court can be used only in proceedings authorized by the probate code. See, Utah Code 75-3-704. In Utah Code 75-3-714, the probate code sets
forth what a personal representative is authorized to do as to settling the estate and distributing the decedent’s assets. As stated earlier, the only possible clause that could be read
to authorize the personal representative to enter a stipulation with DERR is in 75-3-714(27) to “satisfy and settle claims”. Yet, this section only allows the personal representative
to settle claims “as provided in this code” (meaning the probate code).

The question then is, is there any place in the probate code that allows the personal representative to deal with environmental regulatory claims or duties that existed with the decedent’s
estate. There is a section, Utah Code 75-1-109 that does require fiduciaries of estates (which includes personal representatives) to comply with environmental laws. Specifically subsections
75-1-109(1)(b)&(d) require a personal representative to take “any action necessary to prevent, abate, or otherwise remedy” threatened violations ofenvironmental laws and “settle or compromise”
environmental claims. However, this authority given to a personal representative only extends toviolations of “any environmental law affecting property held by the fiduciary” that is
part of the estate being probated. At the time of Duane Frandsen’s death he had no ownership interest in the Price Rental property and the USTs he owned were removed years earlier.
The Price Rental property was not a part of his estate therefore outside of the reach of the personal representative’s authority to settle or compromise as to environmental regulations.
Twenty years ago, it may have seemed fine with Duane Frandsen passing away during an active case involving him as a responsible party of a facility for the personal representative to
enter a stipulated settlement on behalf of the estate. DERR was fortunate that the personal representative with legal counsel entered the stipulated order without questioning whether
the estate could be held regulatorily responsible to conduct investigation and remediation at a property it did not own. Again, there may be something missing from the AG case file or
DERR file concerning the legal background on the stipulated order of this case. Either way, Wayne Frandsen now informing DERR that the estate has been settled and closed means there
is no longer a probate estate with its personal representativeexisting for this matter.
In other words, there is no longer a probate authorized legal entity to enforce the stipulated order against. The probate code allows for an estate to be reopened and a personal representative
to be reappointed if new circumstances arise needing to be addressed. I doubt with 20 years passing there is any asset from this estate that could be traced to a beneficiary for DERR
to attempt to cost recover or a legal theory to reopen the probate case for environmental enforcement. This is particularly true as stated under Utah Code 75-1-109 which only allows
actions against estates where the environmentally affected property was part of the estate.
The Frandsensurviving children of late are asserting that with the estate closed in 2007 the surviving children no longer have a legal duty to comply with the DERR v. Duane Frandsen
Estate stipulated order. Yet, the surviving children even with legal counsel involvement have to some extent complied with the order.The DERR accepted the survivors’ good faith compliance
with the stipulated order. Now that the survivors of a closed estate have formally asked to no longer be involved in the site, my legal recommendation is that DERR view the case as one
where the obligated party in the stipulated order no longer existsas a legal entity to seek enforcement from.
Summary Statement
This has become a site that no longer has aresponsible party or legal entity available to perform what is left of investigation and remediation. Wayne Frandsen asserts his father Duane
Frandsen spent quite a large sum of money toward investigation and cleanup which included removing contaminated soil. With theremaining responsible party being dead for 21 years and
his estate now closed for 13 years,there is no real chance of finding traceable assets for reopening probate and there are real questions on legal authority under probate law to seek
these assets anyway. DERR will now need to assess what to do next.