Depot foes rallying

Polite requests have not been enough to temporarily stop refueling operations at the leaking BNSF Railway depot in Hauser, Idaho.

Attorneys for the state of Idaho and Kootenai County spent Friday gathering legal ammunition to stop the railroad. Courtroom action could begin early next week.

State, federal and county laws are being studied, said Deputy Idaho Attorney General Garrick Baxter.

“I can’t exactly say what our time frames will be. Things are moving very rapidly out there,” he said, referring to the depot. “We’re also trying to move rapidly.”

Friday night, BNSF had not responded to Thursday’s request to “immediately” cease all operations. That was in a letter to the railroad from Toni Hardesty, director of the Idaho Department of Environmental Quality. The railroad insisted Friday that keeping the depot open would not subject the aquifer to further risk, but officials from across the region say the railroad’s assurances no longer carry much weight.

“There’s definitely a lack of confidence in the facility,” said Kootenai County Planning Director Rand Wichman.

Kootenai County Commission Chairman Gus Johnson said information about the latest leak has been sketchy. During some meetings, railroad officials described the leak as a “slight sheen” of petroleum. In others, the amount of diesel floating on the errant wastewater is described as up to a half-inch thick.

“There’s no exact science here whatsoever. … They don’t know,” Johnson said. “I don’t care if it is a sheen or not. It needs to be corrected. It needs to be shut down until it’s corrected.”

BNSF said that it has offered to meet with state and county officials Tuesday, but that refueling would continue over the long holiday weekend on two of its three operational platforms.

Calls for closing the depot have also started to come from Washington. Spokane Mayor Jim West has sent a letter in support of the Kootenai County commissioners’ decision to ask for the temporary closure. The Spokane City Council will consider a similar resolution Monday.

Spokane council President Dennis Hession said many residents feel frustrated about their lack of power to protect the city’s source of drinking water.

“We’re legitimately and genuinely concerned,” Hession said. “We have a responsibility to speak on behalf of our citizens. … We do have very responsive agencies here in Washington and Spokane. We count on them and believe that they’re watching out for our best interests. That’s not a slight on the Department of Environmental Quality in Idaho, it’s just that it isn’t their charge to take care of us. … They don’t answer to us.”

Washington Department of Ecology Director Linda Hoffman also issued a statement Friday supporting the closure request from the Idaho Department of Environmental Quality.

“If this new, state-of-the-art facility is springing leaks already, it does not bode well for the future,” she said.

Earlier this week, diesel was found to be leaking through cracks in the depot’s sealed concrete refueling platform. The fuel had also broken through at least one of the two plastic membranes buried about 10 feet below the platform. It was the second leak since the $42 million facility opened in September.

Health officials on both sides of the state line say the region’s drinking water remains safe.

BNSF spokesman Gus Melonas issued a statement Friday that a soil sample from below the fueling platform shows no traces of petroleum. Enhanced measures are being taken to ensure no more fuel leaks through the platform.

“Full and complete inspections and testing of the fueling platform containment systems are under way,” Melonas said.

The railroad blames the latest leak on cracks in the concrete caused in part by intense freeze-thaw cycles that occurred over a 10-day period beginning Feb. 1, according to a statement from BNSF executive Mark Stehly. The railroad said the cracks were found in the drip pan at only one set of tracks, but Idaho officials worry there could be more trouble.

“If we felt confident, we wouldn’t have sent the letter” on Thursday calling for immediate closure, said DEQ’s Marc Kalbaugh.

None of the letters between BNSF and government agencies includes any mention of laws or legal authority. This is partially because of the lack of evidence of contamination below the third layer of containment, Kalbaugh said. The state has clear authority to close the depot if fuel is released into the environment.

But the state might have the power to order the facility closed based on a spill discovered in December, when traces of diesel were found to have reached the aquifer below the depot. “It’s under consideration,” Kalbaugh said. “There’s a whole lot of discussions going on right now.”

County officials have taken a magnifying glass to the special permit issued in 2000 allowing the construction of the depot. They’ve zeroed in on one of the permit’s 33 conditions, which states, “all operations at the facility shall immediately cease” if contamination is found.

A legal battle with the railroad would quickly get messy, said Spokane attorney Rachael Paschal Osborn, who represented an unsuccessful lawsuit in 2000 to stop construction of the depot.

Kootenai County could seek a temporary restraining order to close the site, but railroads typically shrug off local laws, claiming protections under federal interstate commerce provisions, Osborn said. The best weapon will likely be state law, she said.

“Obviously, when you have a public health issue like this, the state has significant powers,” Osborn said, adding that even a combined legal and political effort might face steep odds. “How do you stop a railroad?”