BNSF shutters depot

Freight trains were backed up for miles Thursday during the final hours of refueling operations at BNSF Railway’s depot in Hauser, Idaho. Because of fuel leaks at the facility, the depot was under court order to cease all refueling by midafternoon.

“There’s trains stopped clear down as far as Argonne Road,” roughly 10 miles from the depot, said Hauser resident Wes Michael.

Not that Michael was complaining. He and many other Hauser residents were thrilled by Wednesday’s court ruling, which temporarily closed the depot. Hauser City Councilwoman D.J. Nall, who also publishes the city’s newsletter, quickly posted an update to the Hauser Times Web site following the ruling.

“I couldn’t believe my eyes,” Nall wrote. “God bless Judge Charles Hosack.”

Many were predicting a federal court challenge from BNSF to the state court ruling, but no appeals were filed Thursday in U.S. District Court in Idaho. The railroad did not respond to a reporter’s request to visit the site and observe remediation and leak-detection efforts under way.

BNSF Railway spokesman Gus Melonas issued a statement Thursday afternoon that “BNSF continues to comply with the conditions of this order. … All legal options are being considered.”

About 40 BNSF mechanical workers at the facility are being given temporary reassignments to other railroad locations in the Northwest, Melonas said. Locomotives normally serviced by the facility – the quickest in BNSF’s system – are now being refueled in Tacoma, Seattle and Vancouver, Wash., as well as Havre, Mont.

Hours after Hosack issued his order, Kootenai County sent the railroad a notice that it had violated its conditional-use permit. The notice means the railroad must present additional safety assurances to the county before it can reopen. In 2000, BNSF agreed to comply with 33 special conditions presented by the county before the depot could be built over the Spokane Valley-Rathdrum Prairie Aquifer.

The railroad is currently violating two of the conditions, including a requirement for three levels of fuel containment and another condition demanding the depot “be constructed in substantial accordance with the construction plans,” according to the violation notice faxed late Wednesday by County Planning Director Rand Wichman to BNSF executive Mark Stehly.

At least two layers of containment have been penetrated by leaking diesel.

“Your company can either immediately correct the failures of the containment system, or cease refueling operations at the site until the failures are corrected,” Wichman wrote.

If operations continue without the required environmental protections after 5 p.m. on March 2 – the same day as the railroad’s next court date – the county commissioners will schedule a permit-revocation hearing, Wichman said.

“What we’re asking is that they operate in the manner we were promised, which is three layers of containment,” Wichman said, adding that the county is not seeking a permanent closure of the six-month-old facility. “We expect the railroad to fix this and be back in operation. I don’t think anybody should think that this depot is going to go away at this stage of the game.”

The wild card, however, would be a possible federal court action. Depot critic and Spokane water lawyer Rachael Paschal Osborn said the state of Idaho might have made a large error by taking the depot fight to court.

Osborn, who teaches at the Gonzaga School of Law, said the county’s conditional-use permit rests on thin legal ice. If the railroad took its case to federal court, there’s a decent chance the BNSF could be freed of the county’s conditions, she predicted.

Former Kootenai County Commissioner Dick Panabaker, who has faced criticism in recent weeks for his decision in 2000 to support construction of the depot, has long claimed that the county was in an impossible situation. Commissioners could have denied the permit, but the railroad would have likely been able to build the depot atop the aquifer anyway because of federal interstate commerce laws, Panabaker said.

“They would have built that thing with or without us,” Panabaker said, explaining his decision Tuesday during a meeting of the current board of county commissioners.

Osborn said she once “pooh-poohed” Panabaker’s reasoning. “I now think he’s right.”

It would take action from the U.S. Congress to give local authorities more control of the railroad, Osborn said. “The railroad is virtually unregulated.”

Planning director Wichman said the county is aware of the possibility that the conditional-use permit could be quashed by a federal court. But he also thinks the railroad sincerely wants to be a responsible corporate citizen.

“We’re pretty confident that we have a conditional-use permit in effect out there, and we believe BNSF acknowledges that. I don’t sense a movement underfoot to remove that,” Wichman said. “I believe we still have a good relationship with Burlington Northern.”

BNSF is currently testing “the entire facility to ensure that the environment is not threatened,” according to a statement Wednesday night from Melonas.

Officials with the Idaho Department of Environmental Quality were at the facility Thursday and plan to be on site over the weekend to work with the railroad to fix the problems, said DEQ’s Marc Kalbaugh.

“We want to continue working with Burlington Northern so they can operate, so they can assure us of the integrity of the system,” Kalbaugh said. “Everybody is concerned with the current situation. A lot of people have been working long hours on both sides.”