(The following article by Karen Ogden was posted on the Great Fall Tribune website on February 6.)
HAVRE, Mont. — The Burlington Northern Santa Fe Railway faces a second wave of lawsuits from homeowners and businesses who say diesel fuel and other contaminants from its Havre rail yard ruined their property.
The five suits, filed in district and federal courts from July through January, allege the railroad negligently and knowingly leaked hundreds of thousands of gallons of diesel fuel and other toxins into the ground at its train repair and refueling station along U.S. Highway 2 from the 1940s to the 1970s.
“They’ve unjustly enriched themselves by using our property as a toxic dumpsite,” said Mike Cok, a Bozeman attorney representing three downtown Havre businesses.
The cases may never go to trial.
“We will probably discuss a possible settlement with the railroad at some point fairly soon here,” said Mark Kovacich, a Great Falls attorney representing some of the plaintiffs.
The railroad settled a similar suit last year with about 80 residents of the North Havre community neighboring the 90-acre rail yard. The terms of that settlement are confidential.
As in that case, the new plaintiffs are seeking cleanup of their land and compensation for lost property values.
“In some of those basements you can stick a stick into the dirt and come up with diesel,” Cok said of the downtown properties his clients own.
The new suits do not seek health damages.
The state Department of Environmental Quality considers the Havre rail yard one of the most serious diesel contamination sites in Montana.
Compounds such as vinyl chloride, a known carcinogen, have appeared in soil tests at the rail yard and in groundwater beneath the North Havre neighborhood.
The railroad is supplying North Havre residents with bottled water and working with the state on a cleanup plan.
BNSF spokesman Gus Melonas said the railroad doesn’t discuss ongoing litigation.
“We certainly aren’t walking away from this,” Melonas said from Seattle.
“BNSF has been consistent in implementing the latest technology available to remediate what has been identified as BNSF’s responsibility,” he said. “We will continue to work with the state on this matter.”
For decades, leaked fuel and cleaning solvents from the rail yard seeped into the groundwater and washed benzene, toluene and other cancer-causing toxins under North Havre, an unincorporated cluster of small homes and trailers between the rail yard and the Milk River.
The community does not have a municipal water system, relying instead on private wells.
To date, no amount of toxins above state and federal drinking water standards have turned up in household wells.
However trace amounts were detected in at least one well.
And a sample taken from a shallow test well in 2002 contained vinyl chloride at 35 parts per billion, seven times the allowable limit.
The sample was drawn at the intersection of 9th Avenue and 2nd Street North from a shallow water table roughly 20 feet below the surface.
The neighborhood’s drinking water is drawn from a deeper table, at least 40 feet below the surface.
A layer of silt, clay and sand separates the shallow water table from the wells, said Kate Fry, project officer with the state DEQ.
But the layer isn’t continuous and there’s a potential for contaminants to seep down into the lower water table that residents draw from, Fry said.
BNSF and the DEQ will meet in a couple of weeks to discuss the railroad’s voluntary interim work plan for the site, Fry said.
The railroad submitted a plan to the DEQ in 2002 to inject the contaminated groundwater with sodium lactate, an organic carbon source that would encourage micro-organisms to eat and break down some of the contaminants faster than they would break down naturally.
But Fry said the DEQ is concerned that the sodium lactate won’t completely break down some contaminants, leaving behind a concentration of “daughter products” that are even more toxic than the original.
It’s been over a year since BNSF proposed the sodium lactate project.
But Fry said the ongoing discussions aren’t endangering public health.
“The reason that it’s not super time-sensitive is that for the past year there’s been ongoing monitoring of the well water for the residents of North Havre and, except for a few isolated cases, those wells have not been impacted,” she said. “We have a handful of wells, and I mean literally a handful that have shown any impacts and those have been below drinking water standards.”
In the meantime, BNSF and the state are completing a remedial investigation of the contamination, the first step in creating a long-term cleanup and monitoring plan under the state Superfund program.
In other developments, the railroad is expected to submit a plan in the next couple of weeks to scale back well monitoring, Fry said.
The railroad has done quarterly monitoring of roughly 60 household wells.
Although some scaling back is likely, the DEQ has identified at least 10 wells that must be tested, Fry said.
“If they’ve had impacts to them historically or presently we won’t let those be dropped,” she said.
Although the impact on residential wells remains minimal, downtown Havre businesses adjacent to the rail yard have found fuel seeping into their basements from the contaminated earth.
“Once you have that stuff on your property you can’t sell your property, you can’t get loans on your property,” said Cok, the Bozeman attorney. “They want the railroad to clean it up. When you put toxic stuff on someone’s property you ought to take it off.”
Cok represents Russell and Corinne DeVries, owners of the Oxford Bar and the building housing Pizza Pro. He also represents Jerry Bergren, owner of PJ’s Restaurant and Casino, in a separate suit.
Their cases were filed in July.
In a third suit filed in federal court in Billings in September, Cok represents Kurt and Candy Johnson, owners of the Park Hotel building.
The Johnson’s co-plaintiffs in the suit are Rodney and Debbie Morse, the hotel’s previous owners. The Morses are represented by Billings attorney Clifford Edwards.
John and Modesty Caven, owners of the Shamrocks Bar and Casino, also have filed suit in District Court and are represented by the Great Falls law firm Lewis, Slovak & Kovacich.
The Great Falls attorneys represent three residential property owners in North Havre who have filed a suit.
A fourth property owner likely will join the suit, Kovacich said.
The plaintiffs are North Havre residents who weren’t part of the earlier suit.
The suits handled by the Great Falls attorneys also name as plaintiffs David Smith, the railroad’s regional manager of environmental remediation and Maurice Plott, general manager of the Montana division of BNSF.
They were not named in the suit that was settled last year.
“We weren’t as aware of every individual’s involvement the first time as we are now,” Kovacich said.