Depot May Sidestep Environmental Checks Planned Railroad Refueling Facility Would Fall Under Federal Jurisdiction

Burlington Northern Santa Fe Railroad may be able to get federal clearance to build a locomotive refueling depot near Rathdrum and simultaneously escape any environmental regulation.

Federal laws take precedence over local laws when it comes to railroads, attorneys for the federal Surface Transportation Board say.

That could mean Panhandle Health District regulations governing large fuel storage tanks the railroad would build wouldn’t apply.

Also, because the refueling depot would be built in a switching yard Burlington Northern already owns, it likely is exempt from the Surface Transportation Board’s environmental regulations, board attorneys said.

That’s a quirk in the 1996 federal law dissolving the Interstate Commerce Commission - which previously regulated railroads - and creating the Transportation Board.

And if it applies, it appears to mean Burlington Northern could build its depot without environmental oversight, board attorneys say.

The major caveat appears to be a case before the 9th U.S. Circuit Court of Appeals. The federal appellate court is being asked to overturn a Transportation Board ruling that King County and the cities of Auburn and Kent couldn’t have a say in the Burlington Northern’s rail line project over Stampede Pass in Washington state.

Burlington Northern reacquired control of a line it had sold to Washington Central Railroad. King County and the cities opposed that acquisition, in part because of the resulting increase in rail traffic. They appealed to the Surface Transportation Board and lost.

“The cities are clearly dissatisfied with the environmental mitigation we imposed, but that does not justify their application of local land use and building codes to force Burlington Northern to make additional concessions,” the board ruled. “We think that their effort to do so results in an unreasonable burden on interstate commerce.”

The Transportation Board did require some environmental review in the Stampede Pass case. But that’s because it involved a main rail line, where the board clearly has the statutory authority to do so, board attorneys said.

The Burlington Northern told the Coeur d’Alene Chamber of Commerce June 12 that it could have gone to the Transportation Board instead of Kootenai County for permission to build the depot. Railroad governmental affairs director Pat Chime cited Stampede Pass as an example.

Burlington instead chose to work through Kootenai County’s permitting process, Chime said. It has not yet decided whether it will go to the federal board if the county doesn’t say yes, he said.

BN spokesman Gus Melonas said Friday, “We have been working with, and are continuing to work with, local authorities.”

County planning officials said they don’t know enough about the Transportation Board’s authority to comment.

The Kootenai County commissioners will review the results of two planning hearings and other public testimony on the depot Tuesday. On Wednesday, at 10 a.m., the commissioners are scheduled to vote on the project.

They could table the issue, reject BN’s application or send it back to the planning hearing examiner for more review. The commissioners also could approve the project or schedule another public hearing.

The Planning Commission’s public hearings have elicited overwhelming opposition. The Coeur d’Alene Board of Realtors and several government entities, including Spokane County, are on the record opposing the project.

In general, opponents aren’t convinced the railroad can do enough to ensure the area’s drinking water aquifer isn’t polluted by the refueling depot, which will dispense at least 3 million gallons of diesel each month.