(The following story by Angie Buckley appeared on the Bismarck Tribune website on September 10.)
GRAND FORKS, N.D. — Jurors heard opening arguments Thursday in a civil case against Burlington Northern Santa Fe Railroad Co. over the Mandan diesel spill.
Kelsch, Kelsch, Ruff and Kranda of Mandan are partnering with a Rapid City, S.D., firm to represent about 70 people who claim diesel fuel under downtown Mandan, allegedly put there by BNSF, has made them sick and destroyed property values. The case was originally grouped with a suit against BNSF by the state and Mandan, but those parties settled with the railroad last month for about $30 million, which will go toward cleaning up the diesel fuel.
In his opening statement, Tom Thornton, one of several attorneys respresenting BNSF, detailed the history of the railroad in Mandan. Trains started rolling through what was to be Mandan not long after Lewis and Clark, and the railroad has stimulated the economy there with jobs and money, Thornton said. From the 1950s to late 1970s, diesel fuel was stored in underground tanks to power the trains. Pipelines to fill a million-gallon tank were installed in 1980 and other tanks were removed.
While he admitted that there is fuel underground, Thornton suggested sources other than BNSF could be responsible. The fuel, estimated to be around 3 million gallons, was first discovered during excavation for construction of the Law Enforcement Center. A bus depot and maintenance shop was located across the street from the LEC site, and maybe it’s to blame, he said.
Regardless, he argued, no one should have gotten sick from the diesel below the LEC. He presented letters from the Custer Health Department saying the diesel levels weren’t high enough to cause danger, and ventilation systems installed in the elevator shaft lowered potential for exposure associated with the diesel by 400 times.
The settlement between the city, state and railroad took care of ensuring clean water and air in Mandan, but a health risk never has been shown, Thornton repeated. Rather, he said, it’s possible the personal-injury clients are afflicted with somatization disorder — a mental illness where people become preoccupied with their complaints and begin to believe them. He repeated that the diesel has “never shown” to pose health risks.
“The symptoms could be real as to what they feel, but they’re not real” according to medical experts, he said.
Even if diesel originated on BNSF property, Thornton said, it could not have reached downtown Mandan because of clay sediment acting as a dam to the area. Also, he said, the diesel fuel there does not match the consistency of fuel on BNSF property. The fuel downtown is saturated at higher levels than would be possible if it were transported from the railroad area.
Verne Goodsell, an attorney for the Mandan plaintiffs, told the jury that if one of his clients is awarded money for damages, it isn’t required that they all be. He said he will attempt to prove the diesel — and therefore BNSF — violated North Dakota’s hazardous waste laws, created a nuisance because property can’t be used, was negligent by leaving the problem unsolved and trespassed onto property owners’ land.
Goodsell said his clients did nothing wrong, and never planned to be in this situation. Rather, he said they are good citizens — owning property, going to work — and now their health and property have been ruined by diesel fuel, which he said resulted from the railroad.
Experts that will testify on behalf of his clients, Goodsell said, will say that the symptoms they experience — forgetfulness, nasuea, allergies — are a direct result of the diesel fuel that rested under their work places. As for his clients that own affected property, they haven’t been able to get financial assistance for their businesses because of the diesel. Hazards to property and health were conditional on where water tables were, he said, affecting all of his clients.
Goodsell’s case is simple, he said.
“It’s (BNSF’s) diesel, you put it there, you harmed our property and we want damages to clean it up … damages to the people who it made sick.”
The only possible source for the fuel, Goodsell told jurors, was the railroad. No other industrial users were in the area at the time.
During questioning later in the day, Environmental Health Chief Dave Glatt testified that the Department of Health investigated other possible culprits, but found none that would have spilled diesel fuel. The plaintiffs will finish questioning him today, and cross-examination by Thornton’s team will begin.
The trial is expected to last four to six weeks, with about 60 percent of the time going toward the plaintiff’s case, Goodsell said, since they have to prove their findings to the jurors. Several witnesses will be called, ranging from the plaintiff’s clients to environmental and health experts.
A jury of 11 women and one man from Grand Forks County are hearing the case. Northeast District Judge Lee Christofferson is presiding over the case, transferred from Mandan after BNSF requested a change of venue.