(The following story by Mike Dennison appeared on the Billings Gazette website on February 13, 2009.)
HELENA, Mont. — A judge has ruled that BNSF Railway is responsible for cleaning up a polluted former oil refinery site in Kalispell, a cleanup estimated to cost $32.5 million.
The ruling by state District Judge Jeff Sherlock of Helena was the first Superfund hazardous-waste case that state regulators had taken to trial.
Cynthia Brooks, the Department of Environmental Quality attorney on the case, said Thursday that the ruling clearly defines how BNSF or other parties with a stake in Superfund sites are responsible for cleanup of pollution at waste sites.
BNSF, however, indicated Thursday it strongly disagrees with the ruling, leaving open the possibility of an appeal to the Montana Supreme Court. The railroad said it has already spent $5 million cleaning up waste at the site, but that it “never owned or leased the refinery property,” which was the focus of the order.
“BNSF is reviewing the decision and is considering its options in light of the court’s reliance on a (related) case presently pending before the U.S. Supreme Court,” BNSF spokesman Gus Melonas said in a statement. “BNSF is committed to being a good corporate citizen. It has worked and will continue to work closely with Montana Department of Environmental Quality to perform remediation.”
The state and BNSF went to trial last March over whether the railroad is responsible for cleanup at a site used as an oil refinery from the 1920s to 1963. Soil and groundwater at the site are polluted from the dumping of petroleum products, penta, dioxin and other hazardous material, court records said.
The polluted area includes the Reliance Refinery site, the former Kalispell Post and Timber Co. yard and the former Yale oil yard, which has been cleaned up by ExxonMobil under a settlement agreement.
The court already has ruled that BNSF is liable for cleanup at the timber yard site. The site is near the Stillwater River in Evergreen, a Kalispell suburb on the northeastern edge of town.
Sherlock said BNSF shares at least some of the responsibility for the pollution at the Reliance Refinery site because its rail cars transported oil within the site to where it was dumped on the ground.
The railroad also “owned or operated part of the facility where the hazardous or deleterious substances were disposed of,” he wrote.
“BNSF is required to abate the imminent and substantial endangerment from the release of PCP, dioxins, furans, lead, wood-treating oil and petroleum products at the Reliance (Refinery) facility,” Sherlock said.
Brooks said BNSF has been denying responsibility for the Reliance Refinery site for 14 years and “consistently refused to do anything about that site.”
BNSF has done some cleanup at part of the property, but the state estimates $32.5 million worth of work still needs to be done, to excavate polluted soil and clean up polluted groundwater.