Hickel to Moore/Diamond Aire Property Fuel ContaminationThe City ofKalispell
Incorporated 1892
Telephone (406)758-7708 Charles A. Harball
FAX (406)758-7771 City Attorney
Post Office Box 1997
Kalispell, Montana Richard M. Hickel, Adjutant
Zip 59903-1997 Kristi L. Curtis, Assistant
November 2, 2009
JAMES D. MOORE
ATTORNEY AT LAW
P.O. BOX 116
KALISPELL, MT 59903
RE: Diamond Aire Property Fuel Contamination
Dear Jim:
As you are aware, during the Environmental Assessment which was conducted by Roger
Noble of Applied Water Consulting last year, fuel contamination was discovered in the immediate
vicinity of Mr. Talmage's fuel pumping facility. Upon discovery of the contamination, Roger
contacted the Montana DEQ as he was required to do by law. It is my understanding that a leak in
the pumping equipment was discovered and was repaired. It was our further understanding based on
discussions with Roger that Mr. Talmage does not contend that his facilities are responsible, at least
in part, for contamination which was discovered during the assessment. Mr. Noble states that
subsequent to the discovery, action was taken with his assistance to qualify this site for
reimbursement for monitoring and remediation expenses from the Petroleum Tank Release
Compensation Fund (PTRC Fund). It has been our experience that following the discovery of a fuel
release, the DEQ will review contamination data and will complete a Remediation Plan which they
expect to be implemented as a condition to continued qualification for reimbursement under the
PTRC Fund.
With this background, my reason for contacting you is to encourage Mr. Talmage to continue
to work cooperatively toward addressing and resolving the fuel contamination issue. The City
remains interested in the possible purchase of the property. But, it would not be prudent to proceed
further until we know the full extent of the contamination problem. This, in turn, may impact the
appraised value of the property. Again, it would seem to me to be difficult, if not impossible, to
accurately appraise property without having a relatively firm handle on the scope of the existing
contamination and in turn, having a reasonable estimate of the likely cost of remediation.
Jim Moore
Page 2
November 2, 2009
I know we have discussed Mr. Noble's involvement in this matter. And I know that you
stated that Mr. Talmage takes issue with Mr. Noble's expenses incurred in conjunction with work
performed on the property. It is the City's position that to the extent that Mr. Noble's work was
conducted as part of the Environmental Assessment, this is the exclusive responsibility of the City.
However, to the extent that Mr. Noble has assisted Mr. Talmage in complying with Montana DEQ
requirements and qualifying the property for reimbursement under the PTRC Fund however, the City
believes that this has been a direct benefit to Mr. Talmage and his property. As such we believe that
Mr. Talmage should bear his share of the deductible portion of the PTRC reimbursement.
That said, the City and Mr. Talmage have a common interest in seeing the fuel contamination
situation remedied. We believe it is important that the property remain in compliance with Montana
DEQ requirements to ensure that the property remains eligible for expense reimbursement from the
State of Montana. The City has a great deal of confidence in Mr. Noble's knowledge and expertise
in this regard. He is among the most informed experts in the State on these issues. For this reason,
we would not want to see Applied Water cease operations on the property due to non-payment of
their bills. If Mr. Talmage's current cash situation does not permit him to compensate Mr. Noble for
his work at this time, the City may be willing to work out an arrangement whereby it would, in
effect, "loan" funds to Mr. Talmage by making direct payment to Applied Water Consulting. These
would, in turn, either be credited against the future purchase of the property or would be repaid by
Mr. Talmage on such terms as we could agree. The important thing, however, is to act quickly and
avoid the possibility that expense reimbursement eligibility is lost. This would not serve the interests
of either Mr. Talmage or the City.
Please let me know if your client is interested in considering this possibility. Thank you for
your attention to this matter.
Since ely,
Richard M. Hick
Adjutant City Attorney
CC: Jane Howington, City Manager
Charlie Harball, City Attorney
Fred Leistiko, Airport Manager