Vestal: BNSF derails its ‘good neighbor’ policy

Remember Livingston.

Whatever the outcome of the BNSF Railway Co.’s lawsuit against Kootenai County – in which the railroad argues that the county has no power to make sure it’s not spilling fuel into our drinking water – remember Livingston.

Remember Livingston? It’s a great little Montana town, full of artists and writers and good bars and perhaps a touch too much fly-fishing romance, in a valley named Paradise on the road to Yellowstone National Park. And it’s got a Superfund site, where BNSF for years dumped diesel, solvents and asbestos into the soil and water – and then for years wrangled with the state and the people whose health and property it fouled.

That’s what things look like on the back end of a big BNSF problem.

That’s why we can’t get too complacent here on the front end. After all, although the railroad’s refueling depot at Hauser has operated in the clear for several years now, who can forget that it sprung leaks right after it opened? And now, after a few years of keeping things clean, the railroad’s packing up its good-neighbor shtick and dancing with the one that brung them – the hardball lawsuit.

“They are not good neighbors,” Montana’s governor, Brian Schweitzer, said back in 2006. “I’ve had it with them.”

At the time, Schweitzer was announcing that Montana was taking over the cleanup of the Livingston site, saying BNSF had been dragging its feet for years. People in power tend to tiptoe around the railroad, so Schweitzer’s words were refreshing. It would be more refreshing still if BNSF would just keep up the good neighbor act for a while.

In our case, it could keep funding a staff position at the Idaho Department of Environmental Quality to monitor the depot. BNSF agreed to do that in its original permit with Kootenai County – but it’s suing over the county’s efforts to extend that provision and add other supremely reasonable conditions. The current permit with the county would expire in 2014, a decade after the depot opened.

“Because the Facility is integrally related to BNSF’s interstate rail operations, BNSF had no legal obligation to seek state or local permits to construct or operate it,” the company says in its lawsuit. “Nevertheless, BNSF has long had a policy of working with local communities to resolve concerns about the railway construction projects.”

The railroad says that a few years of spill-free operations show that no new conditions are legal or warranted.

But the aquifer didn’t go anywhere. It’s still down there, and we’re still drinking from it, and BNSF still owes us all a duty to keep its fuel out of our water.

Geoffrey Harvey, waste and remediation manager at the DEQ’s Coeur d’Alene office, said BNSF pays roughly $100,000 a year for the equivalent of a full-time position. It’s a fair price for doing business there – and a pittance compared to what the company spends battling governments, agencies and citizens in court.

If BNSF stopped paying that, the state’s monitoring probably “would not be done at the level we’re doing it now,” he said.

But doesn’t the railroad’s recent record eliminate the need for outside monitoring?

“No,” Harvey said. “The thing has to be monitored, simply because the stakes are high. … Even if it functions properly for 20 years, you can still have something go wrong.”

You may remember the protracted battle over the depot 10 years ago, when the Kootenai County Commission – against the wishes and wisdom of most people – approved a permit for the site. You may remember how the depot sprung a leak immediately after opening in 2004, then sprung another, then had to be forced to shut down.

And you may remember the Titanic-like promises of perfection that preceded those leaks, as you listen to the company tout its five years of perfection now.

I assume the current Kootenai County commissioners remember them, as well, though two of them, Todd Tondee and Richard Piazza, did not return my calls and one, Rick Currie, wouldn’t say anything about anything.

“We will not discuss that,” Currie said. “We would be wrong in doing that with anybody, media included.”

Of course, the commissioners have proposed specific changes to the conditional-use permit, discussed them at public meetings, and even scheduled a hearing for Dec. 2 over the proposals.

They must be written down somewhere, right? BSNF says it has reviewed them.

Currie – preposterously – said he wasn’t sure.

Well, here’s the truth: The county’s proposed changes to BNSF’s permit do exist and they make good sense.

Which doesn’t mean they’ll win in court, unfortunately.

Gus Melonas, spokesman for BNSF, said that the company is going to great lengths to make sure the depot runs safely, and has created a “state-of-the-art” monitoring system. He also says the company has unfairly gotten black eyes in Montana concerning cleaning up historic pollution. The situation here is different because of the modern technology and elevated attention to pollution, he said.

“Hauser’s totally different,” he said.

We can all hope so. But we shouldn’t have to take their word for it.