The Great Locomotive Chase

By Beacon Staff

The news is that Burlington Northern Santa Fe has been trying to buy property in Whitefish’s “Railway District.” Residents responded by hiring jet-setting tort attorney Cliff Edwards, who has a proven track record of chasing not only ambulances, but locomotives, too.

BNSF has been hit with judgments for pollution in Havre and Livingston, which both have large locomotive maintenance shops. Edwards’ firm was plaintiffs’ counsel in Livingston, winning its share of a $14.5 million settlement.

Now, pollution has a cause, and those responsible should be held liable for the actual impacts of their actions, right?

BNSF’s problems in Whitefish stem from decades of sloppy locomotive fueling and servicing, both at the roundhouse and in front of the Depot. The spills created good-sized underground plumes of solvents and diesel fuel, centered on the roundhouse and Whitefish Depot. BNSF responded by cleaning up its act and is pumping down the plumes, which for now have stayed on BNSF property. Neither have presented significant public health impacts.

So why is BNSF suddenly so interested in buying up the Railway District?

The triggering event was the Montana Supreme Court’s August 2007 ruling in Sunburst School District No. 2 v. Texaco. This is a $41-million lawsuit against Texaco for 200,000 gallons worth of ongoing gasoline spillage at its former refinery in Sunburst north of Shelby. The spill affects 19 acres and the fumes actually blew up a house in 1955. In a convoluted ruling, with concurrences and conditional concurrences, Sunburst upheld a $15-million award for restoration, even when a $1 million monitoring and reduction effort was under way, and the value of the impacted properties was only $2 million.

In short, entities responsible for pollution in Montana are now not only strictly liable for actual damages they cause, but are additionally liable for full remediation to, as BNSF head honcho Matt Rose put it, “pristine” condition.

So, if it costs $1 million to detoxify the ground under an overpriced $80,000 Railway District shack, guess what? If that shack belongs to a corporation-hating “progressive?” If punitive damages are on the table? Wow.

Honestly, I wish Cliff Edwards had showed up at council the other night. I wanted to check his eyes for dollar signs.

A bit further south, we’re seeing another pollution potboiler steam up. After years of squabbling, studies, and litigation, Montana District Judge Jeffrey Sherlock ruled in February that Burlington Northern Santa Fe is on the hook for $32 million worth of cleanup on the so-called KRY site, 55 acres of used-up industrial ground between Whitefish Stage and Pacific Steel in Evergreen. That’s $518,000 per acre, folks.

Clearly, in the wake of Sunburst, BNSF hopes to buy as much of the Railway District as it can in order to limit massive potential liabilities. If the property is owned by other parties, those parties have legal standing to sue, not for actual damages, but a sky’s-the-limit jackpot that won’t have any basis in fact.

Let’s not forget the little sidebar to the KRY story, with Flathead Democrats filing a state ethics complaint against Republicans for bailing contractor Dean Swank out of $600,000 in KRY cleanup liability. Swank’s “crime?” He paid $5,000 to buy a parcel for an equipment yard, which he never used. When he was told of the problems on the site, Swank agreed to pay what he thought would be a fair share. I asked Swank if, in his wildest dreams, he’d ever imagined a bill for $600,000? His response: “No.”

I have to ask DEQ, what is the point of spending so much to restore an industrial site to a “pristine” state? It’s industrial, for crying out loud, and after what happened to Swank, d’ya think any new business would ever consider locating there? Heck no, they’ll go cover up a nice green field someplace else.

I also have to ask, what’s going to be the end result in the Railway District after the Great Locomotive Chase ends? Will the environment be substantially improved? The community of Whitefish?

I guess that’s not really the point to chasing locomotives, is it?

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