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BNSF sues Kootenai County

by Alecia Warren
| November 4, 2010 9:00 PM

The railroad says it's safe enough.

Burlington Northern Santa Fe Railroad recently filed a lawsuit against Kootenai County that objects to new regulations the commissioners proposed for the company's Hauser refueling station.

The suit, a complaint for declaratory and injunctive relief, calls for the courts to declare the county's proposed permit amendments as invalid.

"... The Hauser facility has operated for many years without any CUP (conditional use permit) amendments," reads the document, filed last week. "All of the evidence adduced at the 5-year review hearing confirmed that no CUP amendments were necessary."

According to the lawsuit, the county doesn't have authority to impose permitting conditions on railroad facilities involved with interstate rail transportation, under the ICC Termination Act.

It also states that BNSF never had a legal obligation to seek state or local permits to construct and operate the refueling depot, which sits above the Rathdrum-Prairie Aquifer.

"Nevertheless, BNSF has long had a policy of working with local communities to resolve concerns about railway construction projects," the suit reads.

The county recently scheduled a December examiner hearing for new permit conditions for the 500,000-gallon refuelingstation, whichservices an average of 30 trains a day.

The commissioners voted to look into adding such regulations after the station's compliance review last December.

The proposed amendments include: Standards for ceasing operations in the event of a leak; new well testing and groundwater monitoring; and continuing to fund a staff position for the Department of Environmental Quality's aquifer protection program.

According to the BNSF lawsuit, the station already follows similar standards under the current permit requirements, negotiated between the county and railroad in 2000.

The commissioners agreed that BNSF met all permit conditions at last year's compliance review, the suit says.

Imposing new conditions on the facility would interfere with BNSF's interstate rail operations, the document also states.

"There is no action at law available to BNSF to recover such loss from defendant," it reads.

Company spokesperson Gus Melonas pointed to his statement last week that the company had not requested any new amendments. All local and state agencies had agreed that no additional conditions were necessary at the compliance review, he added.

"As of today, we have gone 683 days without an employee injury on site at Hauser," Melonas wrote in an e-mail on Wednesday. "We have not experienced a leak since '04."

County Prosecuting Attorney Barry McHugh declined to comment on the lawsuit.

"We'll be talking with the commissioners about it, to see what direction to take," McHugh said.

Just months after the $52 million facility was finished in 2004, a leak was discovered that extended to the underlying aquifer. The facility was also shut down by the Department of Environmental Quality in 2005 when diesel was discovered on a liner.

BNSF staff has said the facility is safer with its new leak detection monitoring system.

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