(The following story by John S. Adams appeared on the Great Falls Tribune websiteon February 15.)
HELENA, Mont. — Thirty-two neighbors have filed a lawsuit against BNSF Railway over rail yard pollution they say has contaminated and devalued their properties.
The lawsuit, filed Jan. 24 in Lewis and Clark County District Court, alleges that BNSF is responsible for contaminating their yards and homes with diesel fuel, lead and other toxic substances by failing to contain and control hazardous materials at the Helena fueling station.
Many of the plaintiffs live or own property within a few hundred yards of the BNSF fueling station where, the suit alleges, the company dumped thousands of gallons of hazardous contaminants onto the ground. Those contaminants then migrated onto and under the plaintiffs’ property, placing their “health, welfare and property values,” in “serious jeopardy,” according to the suit.
The suit also claims that BNSF officials were aware of the extent of the contamination and knew that voluntary remedial efforts were “inadequate to reduce the risks and damages” to private property, but that they failed to warn property owners of the danger.
The plaintiffs are seeking damages to clean up the contamination as well as actual and punitive damages “in an amount sufficient to punish” and deter BNSF and others from engaging in “similar wrongdoing,” the suit states.
Mark Kovacich, the Great Falls attorney representing the plaintiffs in the case, was out of the office Wednesday and could not be reached for comment. A BNSF spokesman said in an e-mail that the company “does not comment on legal matters.”
The Helena lawsuit is the latest in a string of legal actions filed against the company in recent years. The city of Livingston, six businesses and nearly 100 residents filed a lawsuit in September in Park County against BNSF and Envirocon, the company’s environmental consultant. That lawsuit alleges that BNSF caused the release of “alarming quantities” of hazardous materials into the soil, surface water and groundwater in Livingston, and asks for damages.
In 2003, the company settled a class-action lawsuit involving about 80 Havre residents who said diesel fuel that leaked into their groundwater from a neighboring rail yard ruined their property values and threatened their health. The terms of the settlement weren’t made public, but the company ended up buying many of the homes in the area. Neither BNSF nor the landowners would say whether the purchase agreements were part of the settlement.
According to Department of Environmental Quality records, the Helena BNSF rail yard at Phoenix Avenue and Harris Street is an active locomotive fueling facility and former maintenance shop that has been in operation since the 1890s. Spills and leaks from fueling activities contaminated soils and shallow groundwater with petroleum hydrocarbons, primarily diesel, the report states.
BNSF and the DEQ have conducted several investigations over the years to determine the extent of the contamination. One survey showed a sizeable area of diesel contamination extending beyond the rail yard and through a residential neighborhood to a series of city retention ponds approximately 4,000 feet north of the facility.
According to the DEQ report, some residential yards located north of the rail yard along Phoenix Avenue also showed elevated concentrations of lead. In 1999, BNSF found high levels of lead contamination at the rail yard.
In 2004, BNSF discovered cleaning solvents, including tetrachloroethylene, in the groundwater at the facility. The federal Department of Health and Human Services has determined that tetrachloroethylene “may reasonably be anticipated to be a carcinogen.” A carcinogen is a substance capable on contributing to cancer.
The Helena fueling facility is one of 28 BNSF properties on the state Comprehensive Environmental Cleanup Responsibility Act priority site list. The Helena rail yard is considered a high priority by the DEQ, but the company has not been required to undertake any mandatory remediation action, a DEQ spokeswoman said. There are more than 200 sites on the CERCA list, ranging from dry-cleaning facilities to mines and rail yards.