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

Trains Magazine General Discussion
1

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 Counc

2

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.

3

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.

4

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

5

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

6

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

7

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.

8

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.

9

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

10

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 liabilit

11

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

12

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.

13

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 Bur

14

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?

15

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?

16

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

17

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

18

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

19

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 activi

20

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