BNSF vs. The Pacific N.W., Yet Another Round?

[samfp1943]

TRAINS News Wire for March 17, 2006

Montana governor upset with BNSF freight rates, site cleanup

HELENA, Mont. – Montana Gov. Brian Schweitzer went after the BNSF Railway on two fronts Thursday, saying the state will take over the cleanup of a Superfund site in Livingston, and again chiding the railway for its high freight rates in his state, according to a story in the Great Falls Tribune.

"They are not good neighbors," the governor said. He referred both to the railroad's numerous Superfund sites within the Treasure State, and the fact that BNSF charges Montana shippers nearly twice as much as it does Midwestern shippers, even though Montana grain is traveling half the distance.

"I've had it with them," he said.

BNSF spokesman Gus Melonas said the railroad was "surprised" and "puzzled" by the governor's comments.

"This is the first that BNSF has heard of the [state's] interest in taking over remediation of the Livingston site," said Melonas. He said the railroad has worked for 20 years with the Montana Department of Environmental Quality (DEQ) on a cleanup agreement. In Livingston, BNSF is responsible for contaminated groundwater and pollution at the site of the former Northern Pacific yards and shops, but the mandated cleanup has been postponed for years.

"The negotiation process has not been working for us, it hasn't been working for BN[SF] or the DEQ, and certainly not for the people of Livingston," said DEQ Director Richard Opper, referring to the railway by its former initials for Burlington Northern (it became BNSF in 1995).

The state will bill BNSF for the cleanup, which Opper estimated will cost "many millions of dollars. It's not going to be cheap."

Melonas said BNSF found the state's decision unnecessary and unwarranted, and will continue discussions with the DEQ about the cleanup.

Schweitzer announced the move at a meeting of the new Rail Service Competition Council. BNSF was invited to send a representative, but chose not to, state officials said.

The newspaper said the council focuses on ways to help alleviate Montana's plight as a "captive shipper" state. Because BNSF has a near-monopoly on rail shipping in Montana, it can — and does — charge higher rates for some services here than elsewhere. The only other Class I railroad in the state is Union Pacific, which has a branch line up to Silver Bow, in the Butte area. Montana Rail Link, the large crosss-state regional railroad linking Sandpoint, Idaho, with Billings, Mont., feeds traffic to and from BNSF.

That fact is one of Schweitzer's pet peeves. Estimating that Montana grain growers pay an extra $90 million in shipping fees, compared to Midwesterners, Schweitzer said: "That's $90 million out of the pockets of farmers. It's $90 million that doesn't get spent in Great Falls, at truck dealerships, and farm dealerships. ... just so [BNSF] can subsidize grain farmers in the Midwest."

Melonas said the rates are under review.

Seems like the BN[SF] is continuing to step into another mess, one more time as they continue their quest to see how many different ententies they can turn against them. Surely, their corporate publicity mavens are wondering how oner organization can continually stumble from one image problem to another. Shades of Jim Hill, and the other rail magnates of the " Railroad Robber Barron Era" . They [The BNSF] never seem to learn from the lessons of the past, they have the political and social savey of Atilla the Hun. If the govenor of Montana, surely the govenors of Idaho and Washington cannot bee far behind him; Looks like the Environmental case will drag on another twenty years and the rail rates for that part of the country will climb, as the BNSF continues to ride roughshod over everybody. Cause," THE BNSF, don't need on stinkin' friends, or shippers", there in the PNW. I wonder how this latest episode will play out?
Sam

[CSSHEGEWISCH]

More political posturing, "After all is said and done, a whole lot more is said than done". Since Montana shippers seem to view lower rail rates as an inalienable right, this sort of posturing is inevitable.

[bobwilcox]

Another politician going for the Huey P. Long Award. Demagogue : a leader who makes use of popular prejudices and false claims and promises in order to gain power(Merriam-Webster's 11th Collegiate Dictionary). The Gov. stopped by UVA the other day hoping some of Mr. Jefferson would rub off. It is my impression he is ozzing with ambition and acts like he would sell his mother out for higher office. He needs to do himself a favor and stay off the national stage. He makes himself and his state look foolish.

However, I'm sure no one reading these posts is dumb enought to fall for just another politician in heat.

[MichaelSol]

So far, I see three politicians posturing on this thread, and the only one that was actually smart enough to get elected to anything is also the only of them who knows anything about the topic.

But as "arbfe" observed before he signed off, even from a lifelong railroader's perspective there is nothing like the mention of "Montana" and "wheat" on this forum to send the "trains forums" politicans into "heat." The Governor of Montana needs to learn what real "political posturing" is from these guys.

best regards, Michael Sol

[MP173]

The cleanup will no doubt be at "captive rates".

I will bet the cleanup bill will be more than 180% of variable costs.

The solution to this entire Montana grain rates is so simple, but it will not be in the interests of the pols involved to do it. Much better to feed the vote machine.

ed

[samfp1943]

I guess where I was originally going with this post was to question if it was truly a politician posturing, by beating up on a large target, that seems to be perceived in the PNW as anti- local shipper[ in particular by some of our forum fellows. How does a large public corporation allow itself to become the target of opportunity that the BNSF seems to have become? Does anyone know why the environmental issue that seems to be the cornerstone of the Montana governor's ire has gone on so long without resolution? Is it the State's fault or the Railroad's fault?
I am sure some of the forum members have some ideas on what the BNSF could do to polish its seemingly tarnished public image in the PNW.
Thanks,
Sam

[Anonymous]

Michael,

Should we post the next gem regarding BNSF vs Montana, or should we wait awhile longer?

Aw, what the hay, here it is.....

http://missoulian.com/articles/2006/03/19/business/biz_05.txt

gist - "Gov. Brian Schweitzer said he's going to ask lawmakers next year for money to sue the federal government for failing to protect Montana's grain farmers from price-gouging by railroad monopolies like BNSF Railway."

What is remarkable about this one is that it has the likelyhood of other states jumping on board. If Montana sticks to it's guns, we'll finally have a legal rendering of whether the STB was neglegent in enforcing the erstwhile competition caveats of the Staggers Act.

[Anonymous]

It would be nice if the BNSF could halt shipping for a couple of months........let them send their grain via truck or US Mail. This guy is scamming.

[PNWRMNM]

This is the reason the railroads have staff lawyers and retain the best firms in each state. I hope they drive a ton of spikes into this guy's political coffin.

Mac

[MichaelSol]

Some history:

In 1977 BNSF submitted self-monitoring data to DEQ indicating violations of BNSF’s 1974 Montana Pollution Discharge and Elimination System (MPDES) permit. These violations occurred between September 29, 1976 and January 12, 1977. On May 5, 1977, DEQ issued an administrative compliance order directing BNSF to correct all violations within 30 days. DEQ filed a complaint against BNSF in Park County District Court on December 22, 1977 seeking an injunction prohibiting further violations and requesting civil penalties of $340,000. In January 1979 the district court approved a stipulation between DEQ and BNSF which resulted in the dismissal of this suit with prejudice and imposition of a $170,000 penalty; $100,000 was suspended contingent upon BNSF obtaining full operational compliance with its permit by January 1, 1980.

In 1985 DEQ required BNSF to investigate the potential that diesel fuel was leaking into soil and migrating to groundwater. Diesel fuel was found in several monitoring wells.

Another investigation discovered VOCs in monitoring and municipal wells. In 1988, the city of Livingston shut down the Q and L Street municipal wells to eliminate VOC contamination in the city water supply and installed two new replacement wells outside of the plume.

On April 9, 1987, DEQ filed a complaint against BNSF alleging violations of Montana’s Water Quality Act and seeking an injunction prohibiting further violations and requiring BNSF to prepare and submit a groundwater cleanup plan.

In the summer and fall of 1988, DEQ and BNSF entered into two administrative orders on consent which provided for the disclosure of documents related to the BN Livingston Shop Complex by BNSF and the removal of underground storage tanks (USTs).

On December 27, 1988, DEQ filed an action in U.S. District Court (Civ. No. 88-141-HCCL) seeking to consolidate the issues raised in the two 1987 lawsuits and asserting other claims. These claims include liability under CECRA and under CERCLA for all remedial action costs incurred by the state and natural resource damages in connection with the Livingston site, as well as the Mission Wye facility, Park County landfill, and the Park County incinerator.

On July 31, 1989, DEQ and BNSF filed a draft partial consent decree with the U.S. District Court in Helena to resolve DEQ's claims against BNSF. The partial consent decree was the subject of four public meetings and a public hearing in Livingston during 1989. In light of public comments, DEQ and BNSF renegotiated many portions of the partial consent decree. A final Modified Partial Consent Decree was agreed upon and lodged with the court (U.S. District Court, Cause No. 88-141-H-CCL) on December 21, 1989. On April 6, 1990 the court preliminarily approved the Modified Partial Consent Decree and invited public comment to be filed with the court on or before April 24, 1990.

At a hearing on April 27, 1990, after consideration of the comments submitted and responses given by DEQ and BNSF, the court approved the consent decree and accompanying stipulations and motions.

Both 1987 lawsuits and many of the issues in the 1988 suit were resolved in connection with the Modified Partial Consent Decree. Through a stipulation entered into in conjunction with the Modified Partial Consent Decree, both 1987 lawsuits were dismissed with prejudice and BNSF agreed to pay $1,000,000 in settlement of DEQ's past remedial action costs through June 30, 1989 and penalties; $100,000 was suspended contingent upon the quality of the work performed by BNSF. The issue of water quality is addressed through implementation of the Modified Partial Consent Decree, work plans and addenda.

Pursuant to the consent decree, BNSF committed to perform the remedial investigation and feasibility study (RI/FS) for the site, with required oversight by DEQ. DEQ committed to selection of the proper remedy for the site through a record of decision process, upon consideration of the RI/FS, and drawing upon CERCLA and NCP for guidance or as otherwise appropriate.

In April 1991 the U.S. Environmental Protection Agency (EPA) initiated field investigations to determine whether the site should be placed on the federal Superfund National Priorities List (NPL). Based solely on the groundwater exposure pathway, the site scored 50.0 using the EPA hazard ranking system and EPA proposed the site for the NPL in August 1994.

The RI and two FSs were conducted between 1989 and 1994. During the RI and FSs, numerous interim actions were conducted and are considered part of the selected remedy.

An extensive record of noncompliance.

It has been nearly 30 years since the pollution and contamination problems were first identified.

The problems include:

Contaminant groups attributable to the BN Livingston Shop Complex include VOCs, semi-volatile organic compounds (SVOCs), metals, diesel fuel (both free product and dissolved phase), and asbestos. These are hazardous or deleterious substances under CECRA and include the following COCs: chlorobenzene, 2-chlorotoluene, 1,4 dichlorobenzene, methylene chloride, tetrachloroethene (PCE), trichloroethene (TCE), vinyl chloride, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, indeno(1,2,3-cd)pyrene, lead, cis-1,2 dichloroethene (cis-DCE), trans-1,2 dichloroethene (trans-DCE), and asbestos. Petroleum hydrocarbons are present as free product (diesel fuel) on top of groundwater, as diesel fuel adsorbed to surface and subsurface soil, and as dissolved phase petroleum hydrocarbons in the groundwater. Metals were found most often in soil, sludge, and the cinder pile; lead was also detected in groundwater.

Known areas where COCs exceeding cleanup levels remain at the BN Livingston Shop Complex are in the groundwater for VOCs, lead, and diesel fuel; above the groundwater for diesel fuel; in subsurface soils for VOCs and diesel fuel; in surface soils for PAHs; and at the cinder pile for asbestos. Suspected areas where COCs exceeding cleanup levels remain at the site are in surface and subsurface soils for lead contamination and petroleum and other contaminants; and basement gas for VOCs.

[From: EPA Superfund Record of Decision: BURLINGTON NORTHERN LIVINGSTON SHOP COMPLEX, EPA ID: MTD986066025, OU 01, LIVINGSTON, MT, 09/07/2001].

The shops are located in a residential district -- kids, dogs, families. In many cases, retired workers or descendents of shop workers of the Northern Pacific and Burlington Northern railroads.

What kind of a person suggests that BNSF's lawyers should "win" this case?

Best regards, Michael Sol

[TomDiehl]

Minor point there Michael, the BNSF merger is only about a dozen years old. Should read just "BN."

[MichaelSol]

QUOTE: Originally posted by TomDiehl

Minor point there Michael, the BNSF merger is only about a dozen years old. Should read just "BN."

The "BNSF" is contained in the original report as specifically cited.

An earlier paragraph in the report clarifies for the confused reader that the BN did, in fact, merge with the ATSF, but that, for clarity, the report would refer to all actions of the BN railway as that of the current liable party and successor in interest, the BNSF.

[MichaelSol]

QUOTE: Originally posted by PNWRMNM

This is the reason the railroads have staff lawyers and retain the best firms in each state. I hope they drive a ton of spikes into this guy's political coffin.

I've worked with Leo Berry and Dan Hoven of the law firm of Browning, Kaleczyc, Berry, Hoven, a Helena, Montana law firm representing the BNSF.

Somewhere on BNSF billing records for its lawyers, there is an entry something to the effect of:

8/6/04
LB "Drive to Missoula, meet with Michael Sol, discussed superfund sites, Livingston cleanup, history of rail operations in Montana, legal liability issues, refused compensation from BNSF" 10.2 hours

Dan Hoven had been opposing counsel on some case, I don't remember now, but I had been at their firm a few times. Good people to work with. Leo called up a couple of summers ago and wanted to "discuss" the history of the BNSF and Milwaukee Road in Montana from the standpoint of pollution, spills and operations.

My academic specialty in graduate school while working on my doctorate in biochemistry had been neurochemistry and the effects of certain environmental toxins on the aging process of neurons, and for some reason from the way he phrased it I initally thought that's what he was calling me on. That was a while ago, and I was out of date on that stuff, and told him so. He said no, that he wanted to discuss more history of operations and legal implications, so I said sure, come on over.

He drove over and came to my office, and he and his assistant spent the better part of the day discussing Livingston, and some other sites. Leo said BNSF wanted to compensate me for my time and contributions. I told him no, the last pay I received from the rail industry was from the BN and Union Pacific railroads in 1980 through John Delano for some lobbying work, and that I did not care again to be in the employ of the Burlington Northern Santa Fe Railroad under any circumstances, particularly regarding matters where I believed the Company had been remiss in its legal obligations that had affected the health of innocent people.

I like Leo, and I offered that my opinions and information were free to him and to the company at any time, but that I would not accept compensation from that company as that would impair the integrity of my opinions on the issue.

The BNSF has known those toxins are in the ground and the water supply for 30 years, and they are still stalling on cleaning them up.

I don't blame the Governor for getting "fed up."

Best regards, Michael Sol

[zgardner18]

I would think that if the price of moving grain is steep coming from BNSF, then wouldn't you think that MRL would step in and make money or would that be stepping on the feet of their friend BNSF?

[Anonymous]

Could it be that the extra money being paid by those Montana shippers is not subsidising Midwst shippers, but instead part of a cushion fund for the inevitable forking over of ca***o the state for the cleanup of the site? After 30yrs of "negotiations", one get's the idea that it was never BN(SF)'s intentions of cleaning it up themselves, anyway. Either that or they were hoping it would wash itself away over time.

In a spill such as this, isn't the only way to get rid of the site is to dig up very bit of contaminated soil, clean that soil, and then replace it?

[MichaelSol]

Part I

Legacy of contamination
BNSF blamed for tainted water in many cities

The Spokesman-Review (Spokane, Washington)
April 24, 2005

The fuel leaks found recently at BNSF Railway's refueling depot north of Post Falls have gotten under John Hiatt's skin.

The Spokane tavern owner doesn't consider himself an environmentalist, but he knows a thing or two about the company. He doesn't believe railroad officials' claims of being able to fix the underlying causes of the fuel leaks at the Hauser depot, or that the troubled depot doesn't pose any threats to the region's drinking water aquifer.

More than a foot of diesel floats on the groundwater below parts of Hiatt's hometown of Livingston, Mont. There have been diseases, early deaths and miscarriages in Hiatt's family that he blames on the water, though no independent tests have verified that opinion. When Hiatt learned that traces of diesel have already been found in the aquifer below BNSF's Hauser depot, he felt a knot in his stomach.

"I want these people to realize what type of mess they could be getting into," said Hiatt, who added that he will never forgive BNSF for poisoning Livingston. "It was like Mayberry. Now it's like Mayberry on acid."

Hiatt played his own part in the pollution, a fact he readily admits. Before moving to Spokane a decade ago, he worked for BNSF and once obeyed a foreman's orders to drain a full tank of diesel from a locomotive – about 3,600 gallons – onto bare dirt. The tank needed to be welded, the foreman told him.

BNSF is now pouring millions of dollars into repairing its Hauser depot, and the railroad insists it is committed to protecting the Rathdrum-Spokane Valley aquifer from further contamination. Railroad officials have said the company now makes environmental stewardship a top priority. But pollution from BNSF taints aquifers in communities across the West. Residents in some of these towns say the railroad continues to put profit over purity and then fights cleanup efforts.

"BN means bad news," said Jim Jensen, a Montana environmental activist who has been working for nearly 20 years to get the railroad to clean up polluted sites in more than a dozen cities across the state. "Every place they operate they contaminate the water. You can't trust them. The only thing you can trust with BN is they will contaminate your water and they will try every political trick to keep from being regulated and to keep from being prosecuted."

BNSF spokesman Gus Melonas said the company is working "aggressively" to repair the Hauser depot, as well as other sites dirtied by the company. Although Melonas declined to discuss allegations of company foot-dragging or political influence peddling, he issued the following statement: "We're not leaning on political connections. We've been upfront."

Major cleanup efforts are getting started at some of the company's polluted sites.

About 600,000 gallons of pure diesel have been vacuumed out of the aquifer below Mandan, N.D., but an estimated 3 million gallons remain. BNSF recently agreed to pay the city a $29 million settlement for the contamination, which was caused by leaks at a refueling depot, said Mayor Ken LaMont.

"It's a sad deal," LaMont said. "It was our central business district."

LaMont speaks about the business area as if it's already gone. The real estate has been rendered essentially useless by a 5-foot-thick plume of diesel less than 10 feet underground, he said. Petroleum fumes are overpowering in some buildings, and downtown now needs to be moved and rebuilt.

"Our central business district is null and void," he said. "Banks won't finance contaminated properties."

.......

[MichaelSol]

Part II

Legacy of contamination
BNSF blamed for tainted water in many cities

The Spokesman-Review (Spokane, Washington)
April 24, 2005

'Cheaper in the long run'

The contamination, caused by a "combination of leaks and carelessness" over many years, was discovered 20 years ago, but little was done to fix the problem until the state of North Dakota intervened in 2002 and sued BNSF, LaMont said.

"They were so slow, we finally had to pu***hem," he said of BNSF. "I have some hard personal opinions. I need to be careful about what I tell you because of the settlement. Basically, they were very difficult to work with."

Melonas would say only that the company has agreed to a settlement with the state of North Dakota.

More than 70 years ago, local government officials warned the railroad to clean up its act in Skykomish, Wash., a tiny mountain town 90 miles east of Seattle. Locomotives heading up steep tracks in the Cascades once stopped in the community for loads of fuel oil and traction sand. The oil was stored in large vats, which leaked into the nearby Skykomish River.

Even though the railroad had been warned to halt the pollution as far back as the 1930s – the rail yard master was even arrested at one point, according to historical records – only now are cleanup efforts beginning in earnest, said Michael Moore, a teacher and founder of the Skykomish Environmental Coalition.

Moore gives credit to local high school students, who made a video of the pollution, including scenes of steelhead migrating upstream through a rainbow sheen of oil. "That broke this whole place open," he said. "Believe it or not, it was the fish. That's what's pushing a lot of this."

Moore's house will likely be moved as part of the cleanup. Heavy oil contaminates the aquifer 15 feet below the home. On hot August afternoons, Moore can sometimes smell the fuel. When community members recently put in a septic tank at the community center, "We accidentally struck oil," Moore said.

The oil is heavy, with the consistency of molasses. It's not easy to remove from the aquifer, but state law requires a full cleanup, said Louise Bardy, cleanup manager for the Washington Department of Ecology. The state is currently negotiating a cleanup plan with the railroad.

Local residents are being given numerous chances to weigh in on the proposals and have even been given a grant by the state to encourage their participation. Costs range from $80 million for a "squeaky clean" state proposal to a railroad proposal with a $22 million price tag, Bardy said.

BNSF stopped its refueling operations in Skykomish in the 1970s. Bardy said she can't explain why the cleanup has taken so long.

"It's just a way that a lot of big companies operate. It's not just the railroad sites. Some of the bigger industries just fight to not do anything," Bardy said. "It's cheaper in the long run to pay attorneys' fees than take care of the problem."
....

[MichaelSol]

Part III

Legacy of contamination
BNSF blamed for tainted water in many cities

The Spokesman-Review (Spokane, Washington)
April 24, 2005

Big Sky pollution

Bardy and Moore both say BNSF has been cooperating lately [at Skyhomish] to clean up the mess, although the cooperation has come only after a significant fight. An underground barrier stops most of the estimated 160,000 gallons of underground oil from leaking into the nearby river, but up to 15,000 gallons coat a flood protection levee and continue to ooze into the river. BNSF has attempted to protect the river by employing floating oil capture booms.

The town's drinking water source is upstream from the contamination, but the mess has caused property values to drop, Bardy said. Some residents now have difficulty obtaining home equity loans.

Bardy said she expects a full cleanup of Skykomish within five years.

At BNSF's former and current refueling depots in Montana, there's little optimism for full cleanups anytime soon. The railroad has 25 polluted sites across the state, according to a rough count by Denise Martin, site response section manager for the state's Department of Environmental Quality.

BNSF fuel depots have tainted aquifers below many of the state's cities, including Billings, Butte, Havre, Missoula, Great Falls, Glendive, Helena, Livingston and Whitefish. Of 208 polluted sites on the state's cleanup priority list – ranging from oil refineries to old city junkyards and tanneries – 17 are from BNSF. No other business has more than two sites on the list.

Although Martin said BNSF might have completed cleanup on one "relatively small site," she was stumped when asked whether the railroad had fulfilled its cleanup obligations anywhere else in Montana.

"Doggone it, let me think," she said, adding moments later, "It has been a struggle to get a lot of the work done that the agency thought needed to be done. BN, of course, wants to minimize the costs at these facilities."

Melonas, the BNSF spokesman, disagreed and said the railroad has cleaned up some of its contaminated properties in Montana and the company continues to "aggressively pursue cleanup" at other sites.

"Some of those sites have been corrected," Melonas said. He could not provide details when asked for specifics. "I don't know which ones."

Closed-door meetings

More than 20 years after thousands of gallons of diesel and toxic solvents were found in Livingston's drinking water source, the state is still working with BNSF for a complete cleanup.

A major sticking point has been trying to get the railroad to agree to remove the pure diesel that floats atop the aquifer, Martin said. The toxic solvents are an even bigger worry and harder to clean because they have dissolved into the water. No such solvents have been associated with the spills at the Hauser depot.

Although lawsuits have been filed and agreements made, the state of Montana is unable to make any outright demands for cleanup from the railroad because of a special review clause granted to BNSF by previous leaders at DEQ. With any other company, "We're not negotiating with them," Martin said.

Martin did not want to speculate why such agreements were made – it happened before her time at the agency, she said. Others say the sites don't just stink of oil, they reek of political connections. BNSF's attorney for much of the Livingston cleanup fight was a man named Leo Berry, who previously served as commissioner of State Lands and the director of the state's Department of Natural Resources and Conservation. Former Montana Gov. Marc Racicot now serves on BNSF's board of directors.

"BN wields a lot of political clout in Montana," said David Scrimm, the former technical services bureau chief for Montana DEQ.

Scrimm, now an attorney for the Montana Wilderness Association, said DEQ employees pushed hard for a faster cleanup but their efforts were rebuffed by Racicot and the previous governor, Stan Stephens, who served from 1989 to 1993.

In the late 1980s, shortly after the full extent of the pollution in Livingston was discovered – two city wells needed to be shut down and BNSF had to supply some local residents with bottled water – Stephens replaced a state attorney handling the negotiations with the railroad with a political appointee and then allowed the discussions to proceed in secret, according to various press accounts from the time.

The meetings were accidentally discovered in 1989 by Jim Jensen, executive director of the Montana Environmental Information Center. Jensen was in a state office building when he spotted BNSF attorneys walking into a conference room with state officials and closing the door behind them. Jensen walked in and refused to leave. The meeting was promptly adjourned, Jensen recalled recently.

[MichaelSol]

Part IV

Legacy of contamination
BNSF blamed for tainted water in many cities

The Spokesman-Review (Spokane, Washington)
April 24, 2005

Critics of the Hauser depot say politics and backroom deals trumped science and common sense when Kootenai County (Idaho) voted 2-1 to approve BNSF's request to build a high-speed refueling depot above a federally protected drinking water aquifer.

Facing steep opposition across North Idaho and Spokane, BNSF hired the Gallatin Group in 1998 to direct a campaign to gain approval for the site.

The Gallatin Group, a leading Northwest public relations firm, employs former four-term Idaho Gov. Cecil Andrus. One of the firm's partners, John Etchart, is a former BNSF vice president and political appointee of Montana Gov. Racicot.

The Gallatin Group's Web site uses the Hauser depot as a case study: "The Gallatin Group worked intensely behind the scenes taking advantage of its extensive connections in both north Idaho and Spokane to build support for the facility and to blunt the opposition's initiatives."

Repairs and testing are continuing this week at the Hauser depot, which was ordered closed nearly two months ago by Kootenai County Judge Charles Hosack. The railroad returns to court Thursday and is expected to argue that its facility is safe to resume refueling operations. Seals have been tightened on the leaking underground fuel protection barrier and special wells have been drilled to help vent leaked diesel from the soil and groundwater.

Although details of the repairs are expected to be revealed at the court hearing Thursday, the railroad has refused numerous requests by The Spokesman-Review to observe work at the site. The Idaho Department of Environmental Quality has been negotiating in private with the railroad to develop a cleanup plan. Agency officials have refused to discuss any aspect of the settlement talks.

Jensen, the Montana environmental activist, said he is saddened by the news of BNSF's fuel leaks in North Idaho. He said he once thought the railroad's record of pollution and foot-dragging in Montana would have served as powerful ammunition to stop its plans for North Idaho. In 2000, Kootenai County commissioners granted BNSF permission to build the refueling station.

Although Jensen gave advice in the late 1990s to local residents who fought the depot, he expressed regret for not working harder. A conflict prevented him from traveling to Coeur d'Alene in 2000 to testify at a hearing about the construction of the facility.

"I still feel bad about that," he said.

[samfp1943]

Michael Sol and others;
Thanks for shedding some light on this topic, being from another area, and unfamiliar with the history of this dispute, it is pretty enlightening to see how it has come together at this point in time. Just on the face of it, as I stated earlier in the remarks, it seemed like the current govenor of Montana was just another politician hungry for an issue to make some political capital out of. I felt like there was a lot of the story being lost, and apparently,I was right.
The history would seem to fit with former corporate cultures of the past, to use resources and not be mindful of the costs to the adjacent communities. Chalk it up to a "Robber Baron" mentality that was earlier 18th and 19th century in origin. In this day and time people would expect a more enlightened attitude in a modern corporate structure. One in which the corporation would not necessiarily admit guilt ,but would become a willing participant in the mitigation of a problem existing from a less enlightened era when consequences were not examined as to future issues.
It truly is an interesting topic as to the outcomes, and local expectations, and the monetary consequences of the obfuscations ,and delaying tactics of the BNSF and its predecessor[s]. Hopefully, it will reach resolution for the citizens affected for so long.
Thanks, Michael.
Sam

[Anonymous]

"Hiatt played his own part in the pollution, a fact he readily admits. Before moving to Spokane a decade ago, he worked for BNSF and once obeyed a foreman's orders to drain a full tank of diesel from a locomotive – about 3,600 gallons – onto bare dirt. The tank needed to be welded, the foreman told him."

Wow, that is some pretty amazing reading! And that part is just incredible! I would really hope this is not a common practice on a Class 1 railroad.

So, would anyone care to speculate how many other refueling sites are quietly draining there toxic contents into an unsuspecting communities' water supply while a politician pads his/her pockets? And not just one particular railroad's sites, and not just rail related sites either.

This is not good news. [B)]

[Anonymous]

It sounds like the northern plains needs some real rail competition and here's my remedy.

1. Force BNSF to turn over the former MILW Road line from Billings to the Twin Cities over to MRL who's parent company has a line from St. Paul down the Mississippi to Savannah and east to Chicago.

2. Help MRL re-build the former SP&S line from Spokanne to Tri Cities which many people who know the route will tell you was better engineered than the former NP.

3. Give MRL trackage rights through Yakima valley to Ellensburg and help them re-build the former MILW Snoqualmie Pass Route.

I think a rail network like this extending from Puget Sound across the northern plains to Chicago could give BNSF a real run for its money.

[TomDiehl]

And the finger pointing continues: (from Trains Newswire March 21, 2006)

HELENA, Mont. - BNSF Railway officials took aim recently at new plans by Montana Gov. Brian Schweitzer for the state to challenge the prices the company charges and the arguably sluggish pace of the company's environmental cleanups, according to a story in the Helena Independent Record.

Mark Stehly, a BNSF vice president for environment and research and development, told Montana's Department of Environmental Quality director, Richard Opper, that the railway has not cleaned up several polluted groundwater plumes in Livingston because the state has failed to sign off on the company's plans.

The flap started last week when Opper wrote Schweitzer to tell him that 10 percent of all Montana's Superfund sites are a result of BNSF – and predecessor railroads - pollution. Some of the pollution has been identified for 25 years, but the railroad has consistently dragged its feet and challenged minor technical cleanup details in an apparent attempt to postpone cleanup, Opper wrote.

He suggested the governor end the long negotiations at one BNSF site in particular - several solvent and diesel plumes beneath Livingston, the site of a former Northern Pacific Railway shop complex - and begin cleaning up the place and billing the company for the work.

Schweitzer agreed and announced last Thursday that work would begin on the area as soon as the temperatures warmed up. Stehly responded with a letter last Friday, saying the company has always committed to cleaning up Livingston, but was stymied by the state itself.

Stehly said the company intends to clean up the site, but is worried that Opper's March 15 letter "will only make a cleanup more difficult and delay the closure of the site."

Sarah Elliott, a spokeswoman for the governor, said Schweitzer stands by his earlier plans.

"It's been over two decades since they found diesel and solvents in the Livingston aquifer and it's time to clean it up," she said.

Schweitzer also said last week he was going to ask the 2007 Legislature for money to sue the federal board that is charged with making sure rail rates are fair. Schweitzer said BNSF charges higher rates to Montana's farmers - most of whom have no other option than to send their grain to market via BNSF - than the company charges to Midwestern farmers, who have a more competitive shipping market.

BNSF spokesman Gus Melonas said Schweitzer's comparisons, which showed farmers in Sidney and other Montana farm towns pay more per mile to ship to Pacific Coast markets than farmers in Nebraska or Kansas, were not a fair comparison. He also said Montana's shipping rates have declined in recent years.

[MichaelSol]

QUOTE: Originally posted by TomDiehl
BNSF spokesman Gus Melonas said Schweitzer's comparisons, which showed farmers in Sidney and other Montana farm towns pay more per mile to ship to Pacific Coast markets than farmers in Nebraska or Kansas, were not a fair comparison.

Please note that the BNSF Railway is complaining that someone is not "fair."

And of course, not stating that the Governor's statement is wrong, only that it is "not fair." In other words the article quotes BNSF officials as confirming what the Governor said as accurate.

QUOTE: He also said Montana's shipping rates have declined in recent years.

Anyone wanna bet on the overall truth or falsity of this statement?

Anyone see BNSF's response, now interestingly escalated to the VP level, as almost implausibly "weak"?

Best regards, Michael Sol

[samfp1943]

QUOTE: Originally posted by MichaelSol

QUOTE: Originally posted by TomDiehl
BNSF spokesman Gus Melonas said Schweitzer's comparisons, which showed farmers in Sidney and other Montana farm towns pay more per mile to ship to Pacific Coast markets than farmers in Nebraska or Kansas, were not a fair comparison.

Please note that the BNSF Railway is complaining that someone is not "fair."

And of course, not stating that the Governor's statement is wrong, only that it is "not fair." In other words the article quotes BNSF officials as confirming what the Governor said as accurate.

QUOTE: He also said Montana's shipping rates have declined in recent years.

Anyone wanna bet on the overall truth or falsity of the this statement?

Anyone see BNSF's response, now interestingly escalated to the VP level, as almost implausibly "weak"?

Best regards, Michael Sol

It certainly seems as if the rhetoric is ratcheting up in this situation. That is probably a good thing for the people who have been effected bystanders for so long[Montana citizens]. They certainly deserve closure after so long, have been left to flap in the breeze.
I would gauge the written response by the BNSF to certainly bend the needle on the "Lame" meter. I was apparently mistaken about the motives of the govenor. Maybe he does need to shake the local political tree, and see what falls out..
Good for Gov. Schweitzer.
.Sam

[nanaimo73]

QUOTE: Originally posted by TomDiehl

BNSF spokesman Gus Melonas said Schweitzer's comparisons, which showed farmers in Sidney and other Montana farm towns pay more per mile to ship to Pacific Coast markets than farmers in Nebraska or Kansas, were not a fair comparison. He also said Montana's shipping rates have declined in recent years.

Doesn't BNSF per higher taxes per mile in Montana than most other States, or at least higher than average ?
Perhaps some quiet negotiations could see rates go down if taxes went down as well.
Allowing MRL and UP to interchange westbound agriculture shipments in Spokane would be a good start.
Competition for eastern Montana would occur if the Yellowstone Valley Railroad was allowed to run one train a day from Glendive to MRL at Huntley.

[MichaelSol]

Text of Letter

March 15.2006

Honorable Brian Schweitzer
Governor of Montana
Capitol Station
Helena, Montana 59620

Re: BNSF CECRA Facilities

Dear Governor Schweitzer:

As you know, the BNSF Railway Company (BNSF) is a major polluter in the State of Montana. The company is responsible for almost one-tenth of the sites on the state Superfund (CECRA) list. Most of these sites have been listed since the mid-1980s and none of them have been adequately remediated in the 25 years since the pollution issues were identified. This is a terrible legacy for BNSF to leave with Montana, and the only way to correct this is to clean up these sites as quickly as possible. Unfortunately, these sites have languished while BNSF has engaged in legal and technical squabbles that have delayed clean up activities. That will soon change.

Montana has issues with BNSF statewide, but one of BNSF's most egregious
contamination sites is in Livingston. As you know, the Consent Decree directed my department, the Montana Department of Environmental Quality (DEQ), to enter into negotiations with BNSF to fully implement the selected remedy at this site. Those negotiations resulted in the Statement of Work (SOW) for Spring 2005 Activities. Under the Spring SOW, BNSF is required to conduct certain work required in the Record of Decision. However, BNSF's actions on these tasks indicate that BNSF has no intention of actually completing the work in a reasonable or timely manner.

BNSF has impeded progress at this and other sites, bogged down negotiations with technical issues, and failed to respond to DEQJs requests and requirements in a timely manner. This is not acceptable. I sent BNSF a letter on December 6, 2005, outlining how DEQ expected to deal with BNSF on these sites. There has been no additional progress since that letter. As a result of BNSF's obstreperous behavior, DEQ feels that any further negotiations with BNSF related to the Livingston site would be a waste of valuable state time and resources.

Therefore, I recommend that you direct DEQ to terminate any further negotiations
related to implementation of the selected remedy and to take over the cleanup of the Livingston site. This includes activities under the Spring SOW as well as all other required remedial activities. BNSF's obligation will be to timely pay all the bills.

At an Environmental Quality Council meeting on January 26, 2006, BNSF indicated that it has an "open checkbook" for addressing sites in Montana. We have a right to expect BNSF to use it for the good of the state. If BNSF fails to pay all remedial action costs in a timely manner, we also recommend that you direct DEQ to take further enforcement against BNSF.

The Livingston site is one of many problems facing BNSF in Montana. Further, we recommend that you direct DEQ to take a global look at other BNSF sites and assess why things are moving so slowly. It may be necessary for the state to take further actions to remove financial and other roadblocks that prevent significant and timely progress towards cleanup and closure of other BNSF sites in the state. Finally, if BNSF continues to act in an unacceptable fashion at the other CECRA sites in Montana, we recommend that you direct DEQ to take over cleanup of those sites as well and bill BNSF for the costs incurred.

Sincerely,
Richard H. Opper
Director

[TomDiehl]

QUOTE: Originally posted by MichaelSol

QUOTE: Originally posted by TomDiehl
BNSF spokesman Gus Melonas said Schweitzer's comparisons, which showed farmers in Sidney and other Montana farm towns pay more per mile to ship to Pacific Coast markets than farmers in Nebraska or Kansas, were not a fair comparison.

Please note that the BNSF Railway is complaining that someone is not "fair."

And of course, not stating that the Governor's statement is wrong, only that it is "not fair." In other words the article quotes BNSF officials as confirming what the Governor said as accurate.

Best regards, Michael Sol

Of course, if you take the total shipping bill and divide by the number of miles hauled, a short run will cost more than a long run per mile, even if you send it by truck. Montana is closer to the Pacific coast than Kansas or Nebraska.

[MichaelSol]

QUOTE: Originally posted by TomDiehl
Of course, if you take the total shipping bill and divide by the number of miles hauled, a short run will cost more than a long run per mile, even if you send it by truck. Montana is closer to the Pacific coast than Kansas or Nebraska.

Aahh, it was only a matter of time before the wheat industry expert, produce industry expert, history of mineral exploration out west expert, rail capacity expert, BNSF operating department expert, Pacific Northwest rail rate expert needed to speak on yet another topic for which he is unsually well-qualified to speak ...

We are, of course, talking about rates, not costs.

As of today, single carload rate BNSF to Portland, STCC # 0113710:

Ritzville, WA, 315 miles, $3.65/mile
Cheney, WA, 364 miles, $3.74/mile
Spokane, WA 384 miles, $3.63/ mile

Eureka, MT, 627 miles, $5.55/mile
Whitefish, MT, 636 miles, $5.63/mile
Browning, MT, 727 miles, $5.13/mile
Shelby, MT, 785 miles, $4.05/mile

Williston, ND, 1191 miles, $3.49/mile
Beach, ND 1286 miles, $3.12/mile
Minot, ND, 1311 miles, $3.33/mile

Same mainline, same railroad.

Caveat: Washington State is closer to the Pacific coast than Montana. In fact, Washington State is the Pacific coast.

Best regards, Michael Sol

[samfp1943]

QUOTE: Originally posted by MichaelSol

Text of Letter

March 15.2006

Honorable Brian Schweitzer
Governor of Montana
Capitol Station
Helena, Montana 59620

Re: BNSF CECRA Facilities

Dear Governor Schweitzer:

As you know, the BNSF Railway Company (BNSF) is a major polluter in the State of Montana. The company is responsible for almost one-tenth of the sites on the state Superfund (CECRA) list. Most of these sites have been listed since the mid-1980s and none of them have been adequately remediated in the 25 years since the pollution issues were identified. This is a terrible legacy for BNSF to leave with Montana, and the only way to correct this is to clean up these sites as quickly as possible. Unfortunately, these sites have languished while BNSF has engaged in legal and technical squabbles that have delayed clean up activities. That will soon change.

Montana has issues with BNSF statewide, but one of BNSF's most egregious
contamination sites is in Livingston. As you know, the Consent Decree directed my department, the Montana Department of Environmental Quality (DEQ), to enter into negotiations with BNSF to fully implement the selected remedy at this site. Those negotiations resulted in the Statement of Work (SOW) for Spring 2005 Activities. Under the Spring SOW, BNSF is required to conduct certain work required in the Record of Decision. However, BNSF's actions on these tasks indicate that BNSF has no intention of actually completing the work in a reasonable or timely manner.

BNSF has impeded progress at this and other sites, bogged down negotiations with technical issues, and failed to respond to DEQJs requests and requirements in a timely manner. This is not acceptable. I sent BNSF a letter on December 6, 2005, outlining how DEQ expected to deal with BNSF on these sites. There has been no additional progress since that letter. As a result of BNSF's obstreperous behavior, DEQ feels that any further negotiations with BNSF related to the Livingston site would be a waste of valuable state time and resources.

Therefore, I recommend that you direct DEQ to terminate any further negotiations
related to implementation of the selected remedy and to take over the cleanup of the Livingston site. This includes activities under the Spring SOW as well as all other required remedial activities. BNSF's obligation will be to timely pay all the bills.

At an Environmental Quality Council meeting on January 26, 2006, BNSF indicated that it has an "open checkbook" for addressing sites in Montana. We have a right to expect BNSF to use it for the good of the state. If BNSF fails to pay all remedial action costs in a timely manner, we also recommend that you direct DEQ to take further enforcement against BNSF.

The Livingston site is one of many problems facing BNSF in Montana. Further, we recommend that you direct DEQ to take a global look at other BNSF sites and assess why things are moving so slowly. It may be necessary for the state to take further actions to remove financial and other roadblocks that prevent significant and timely progress towards cleanup and closure of other BNSF sites in the state. Finally, if BNSF continues to act in an unacceptable fashion at the other CECRA sites in Montana, we recommend that you direct DEQ to take over cleanup of those sites as well and bill BNSF for the costs incurred.

Sincerely,
Richard H. Opper
Director

Well, This certainly puts the fat into the fire for the Polution Issue. Hope the State can manage this issue and avoid the traps of legal delays and obfuscation that the 'legal-eagle" types have used to delay the BNSF's lack of movement on environmental remediation in Montana for the previous 20plus years.
Sam