A dispute brewing between Hesperus neighbors over a coal-fueled boiler prompted one to file a federal lawsuit this week in U.S. District Court in Denver.
Robert Bridges and Karen Nakayama have accused Cody and Jennifer Sanders of causing health-threatening pollution by burning trash and other materials in a boiler that emits a plume of black smog over the County Road 120 properties.
The Sanderses moved into their 40-acre lot around 2012, just east of the Bridges’ and Nakayama’s home, purchased in 2001.
About a half-dozen families live within a quarter-mile of the Sanderses home. Cody Sanders installed the boiler in 2014, and since then, according to neighbors, they’ve received a daily dose of smoke during the cold months.
In a phone interview before the lawsuit was filed, Cody Sanders denied that he burns anything but wood and coal.
“I can tell you it’s 100 percent legal, and there is no law governing against it whatsoever,” he said.
According to the lawsuit, the boiler came from Pennsylvania, and it is now outlawed in that state for environmental reasons.
The plaintiffs seek $100,000 to fix the problem and pay legal fees, as well as unspecified damages.
Because of the pending litigation, Bridges declined comment when contacted by The Durango Herald. But a neighbor, Rick Crawford, attested to the problem, which sometimes occurs “four or five times” daily in the winter.
“It smells like rubber. It smokes yellow-black,” said Crawford, whose house sits about 400 yards from the Sanderses’ home. “We can’t be neighbors or friends with this guy. He fumigates us every day.”
Crawford said that since the Sanderses moved in, relations between Cody Sanders and nearby residents have been strained. That’s reflected in the lawsuit, which claims Cody Sanders raised a flag depicting a raised middle finger to send a message to his neighbors, and placed a pig sty on his property line.
Neighbors, including Crawford, have tried to find an amicable solution out of court, both among themselves and by seeking regulatory action, but the location throws a complicated wrench into the situation that leaves residents with no recourse.
The County Road 120 properties lie within the Southern Ute Indian Tribe’s exterior boundaries, where the land is under La Plata County purview, but the tribe controls the air shed. Here, the tribe’s jurisdictional regulation usually applies to matters that involve, for example, property owners affected by oil and gas pollution.
The Durango Herald inspected emails between Crawford and state and tribal officials that date to January 2016, including exchanges in which Crawford says his wife suffered a “severe respiratory issue” from the pollution.
Mark Hutson, the air quality program manager for the tribe, wrote to Crawford in a February 2016 email:
“The scope of the air quality programs we administer is limited primarily to major oil and gas source permitting, compliance and enforcement. Neither the tribe nor the Southern Ute Indian Tribe/state of Colorado Environmental Commission has sought to regulate residential heating source emissions.”
Hutson added that the reservation’s air code does not address “nuisance or visible emissions” and advised Crawford to seek legal counsel.
“My immediate response was, whose responsibility is it?” Crawford said.
In 1999, the tribe and state struck an intergovernmental agreement to govern air quality on lands within the reservation’s exterior boundaries. The two entities subsequently formed the Southern Ute Indian Tribe/State of Colorado Environmental Commission, which includes governor-appointed and Tribal Council-appointed members.
The commission sent a letter to the Sanderses in September 2016 acknowledging its authority to take regulatory action, but asking the neighbors to solve the dispute among themselves.
“Coal is a viable source of heat, numerous people burn it, and I burn it. My house is astronomically expensive to heat with propane,” Cody Sanders said.
He said he’s done nothing illegal, yet his neighbors have called “every alphabet agency” on him. He also questioned the plausibility of their claims.
“It would have to go through my house to get to theirs, and I live in the middle of 40 acres,” he said. “They live on my western boundary, the boiler is on the east side, and it would have to go through my house. We don’t have any problems.”
The lawsuit claims the smoke exceeds state, tribal and federal standards. Nathan Barton, an engineer contracted by the plaintiffs to analyze the air quality, declined to comment on his observations.
When the Herald tried to reach officials with the tribe’s air quality program, the tribe provided an emailed response:
“The Environmental Commission’s Reservation Air Code is designed to target and reduce emissions from large industrial sources and not designed to specifically regulate visible emissions or neighbor vs. neighbor nuisance complaints. While this type of situation is not regulated through the Reservation Air Code, the environmental commission and the tribe’s air quality program have provided as much technical assistance as possible and encouraged both parties to seek peaceful resolution.”
Jeremy Neustifter, an air quality planner with the Colorado Air Pollution Control Division, said the case is unique and that his department has no purview given the properties’ location within tribal exterior boundaries.
Furthermore, La Plata County spokeswoman Megan Graham said the county has no authority to regulate air quality issues in this area, only land-use issues, such as building code violations.
“The county won’t touch it. The state won’t touch it. We’re in this place where nobody will come out here and decide that he (Sanders) is in some kind of violation of any kind of code,” Crawford said. “I’m angry at our local governments for not being able to help us with this. Usually there’s recourse, but they’ve said, ‘Sorry, our hands are tied.’”
jpace@durangoherald.com