Bnsf Says Feds Can’T Regulate Refueling Facility Depot Foes Want Surface Transportation Board To Review Plans

Burlington Northern and Santa Fe Railway says opponents are wasting their time with the federal Surface Transportation Board.

The board has no authority over fueling facilities like the 500,000-gallon diesel refueling depot BNSF plans to start building at Hauser next year, railroad officials said in a statement issued Thursday.

A petition depot opponents filed with the board late last week asking members to regulate the facility was also “filled with inaccurate and misleading information,” the railroad charges.

Depot critics, including Friends of the Aquifer, charged that BNSF sought Kootenai County’s approval of the depot to avoid federal scrutiny.

Burlington Northern and Santa Fe on Thursday argued that the point is moot: The depot is immune from any government regulations, local or federal.

As the railroad argued in federal court last spring, the STB has jurisdiction over the depot, which trumps local jurisdiction.

But the board does not and has never exerted regulatory control over fueling facilities, railroad officials say.

“Contrary to the claim made by FOA, there was no effort to bypass federal scrutiny, because there is no federal scrutiny to bypass,” John Gooding, Spokane division superintendent, said in the statement.

Petitioners responded that they want the three-member Surface Transportation Board to make that decision.

The railroad is saying, “`We’re the ones who decide things here,”’ said Rachael Paschal Osborn, the Spokane attorney representing the petitioners. “I think it’s high time somebody else makes some decisions about whether this depot is really in the public interest.”

The depot is to be built over the Spokane Valley-Rathdrum Prairie Aquifer, source of drinking water for 400,000 Kootenai and Spokane County residents. The depot will fuel 25 trains a day, with 5 million gallons of diesel a month.

The petitioners have asked the STB to review whether it has authority to intervene. Eventually, however, their goal is for the STB to attach conditions to depot construction or even call for a full-blown environmental impact statement, including an analysis of other places to locate the depot.

The petition mailed last week to the STB argues that the depot is part of rail reconfiguration with regional effects and therefore requires federal environmental review.

But the fact that the depot will sit over a sole-source aquifer is also enough to trigger review, argue petitioners, including Friends of the Aquifer, public officials, the city of Hauser and the Hauser Lake Water Association.

BNSF rebuts both contentions.

“The petitioners falsely claim the fueling facility constitutes an extension of the railroad line, requiring STB review and certification,” Gooding said. “Almost all rail projects … have regional effects, but have been found not to require STB approval.”

The railroad’s statement repeats assurances that the facility poses no threat to the aquifer, despite claims by the opposition. And it reminds the public that Spokane County is using the depot’s environmental safeguards as a model for petroleum storage regulations.

Railroad officials also say an alternate site proposed by depot critics at the intersection of Ramsey and Chilco roads is classified hazardous by the county due to a fault line.

The Kootenai County Board of Commissioners approved the depot permit in a 2-1 vote, but required BNSF to comply with 33 conditions.

BNSF has agreed to comply with local regulations on a voluntary basis. The company contends the county has no regulatory authority over the depot.

BNSF did not have to get a permit from Kootenai County, said the company’s Coeur d’Alene-based attorney, Janet Robnett.

But the company went through the local process in a show of good faith, Robnett said.

“Even if you don’t need a permit from the local entity, not everybody’s going to understand that,” she said.