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  • Ever Worked in Whitefish BNSF Yard?

    FELA FELLA Comment: If you have ever worked in the BNSF Whitefish yard, you may want to monitor the below story as it progresses. I am not sure which "toxins" they are expecting to find, however, depending upon the results, obviously certain toxins medically cause certain problems. Once the results of their testing is determined, if you are having any of the associated medical problems that go along with exposure to those toxins, you would probably have a FELA claim. The law covering toxic exposure generally comes down to an evidentiary question on causation. There is a famous case known as Daubert v. Merrell Dow Pharm., wherin the US Supreme Court stated that, for an expert to render an opinion on causation, there must be certain criteria met. The Daubert decision has resulted in many injured persons' cases thrown out simply because there was insufficient "science" on the the particular toxin and the medical problem suffered. Nevertheless, there are constantly studies coming out that provide more and more support for an expert's opinion. The Edwards firm seems well qualified for this endeavor. I am sure this is not the last we will hear about the town of Whitefish and this toxin issue.
    ------------------------------------


    Whitefish Residents Hire Lawyer to Test for Contamination from Railyard
    By MICHAEL JAMISON of the Missoulian



    WHITEFISH - A high-profile trial lawyer from Billings will arrive in Whitefish on Monday, with a plan for detecting suspected railroad contamination in a trendy downtown neighborhood.

    Cliff Edwards - who has more than a decade of courtroom experience uncovering Burlington Northern Sante Fe railway pollution - has announced his firm soon will begin environmental testing here, with several households already agreeing to play host to monitoring wells.

    The move comes just weeks after BNSF began quietly knocking on doors, offering to buy homes and businesses that aren't for sale, while hinting the ground beneath might be polluted with toxins.
    In an April 27 letter to city officials, the firm of Edwards, Frickle and Culver indicated it has been “retained by several Whitefish citizens to represent them regarding the potential migration of the Burlington Northern Sante Fe Railway's toxic plumes.”

    In that letter, Chris Edwards - Cliff Edwards' son - confirmed the firm is “in the process of investigating and testing the soil and groundwater near the rail yard to independently determine the plumes' boundaries and the migration route.”

    The Edwards family owns both business and residential property in Whitefish.

    The town, like nearly two dozen other Montana towns, is home to a known railroad pollution site, with groundwater poisoned by spilled diesel fuel and chemical solvents. Although the historic emphasis has been on the diesel, state health officials have worried about vapors that could rise from pools of chlorinated solvents, tainting the buildings above.

    The railroad has so far monitored the pollution itself, reporting to the state Department of Environmental Quality, which has no funding to conducts tests of its own.

    That self-monitoring, however, has not always proved adequate. In Havre, for instance, residents conducted independent tests similar to those Edwards has begun in Whitefish, only to reveal toxins the railroad had missed.

    Recent court decisions have increased the railroad's potential liability, allowing citizens to sue for cleanup costs well beyond the value of their properties.

    “If the company buys these properties, they eliminate their liability, possibly forever,” said City Attorney John Phelps.

    The railroad, for its part, insists it has no new information suggesting the Whitefish plumes have moved. The company has been making offers to neighbors, a BNSF spokesman said, because it “merely determined that it may be constructive and helpful for everyone to discuss various economic options related to property in the area.”
    The Edwards firm, however, isn't buying that, and in the April 27 letter alleges “their actions only mean one thing - BNSF knows their toxic plumes have migrated or are migrating off of BNSF's property onto residential and business properties.”

    “We're getting more inquiries every day,” Chris Edwards said in a telephone interview. “Our big concern now is identifying the actual extent of the plume. What's so frustrating now is that the plume seems to be very poorly defined.”

    BNSF spokesman Gus Melonas said the company has not been informed as to the details of Edwards' planned environmental review.

    If the railroad neighborhood - newly renovated and targeted for substantial downtown investment - is clean, but the plume is moving toward it, then lawyers may be able to force BNSF to speed its cleanup process.

    If it's not clean, neighbors may be able to sue for damages and cleanup costs. And if it's just fine, well, then homeowners could argue that BNSF has hurt their property values by suggesting contamination where there is none.

    Either way, Phelps said, the Edwardses' upfront investment in monitoring wells appears to set the stage for potential litigation against BNSF.

    “Obviously, the cat's out of the bag,” said Whitefish City Councilman John Muhlfeld, “and the economic impact to residents and business owners has already begun.”

    Previously, the law firm represented Park County in a claim that BNSF had dumped chemical solvents in the county landfill there. The company offered to settle for $2 million, Chris Edwards said, in an attempt to be “good neighbors.” Jurors ultimately ordered the railroad to pay $14.5 million.

    “BNSF is not going to, voluntarily, be a good neighbor,” Chris Edwards wrote, adding that “BNSF's tactics never change. It always denies the extent of the pollution. It always purchases property near the edge of the plume and then abandons the property, leaving a blight.”

    That is precisely the concern of many Whitefish residents.

    “I think people just want some answers,” said Councilman Muhlfeld. “They want to know what's going on, and what's going to happen to their neighborhood.”

    The company has refused to address those concerns, however, and last month declined a state DEQ request for a list of households contacted. Similar requests from the Missoulian also were refused.

    Last week, several elected city officials met with worried property owners, “because we're all interested in figuring out what BNSF knows, and how long they've known it,” Councilman Frank Sweeney said. Those attending did not propose a specific course forward, he said, “but I think there's going to be action taken, to bring pressure to bear to create some kind of dialogue.”

    The city already has made requests for information, he said, but received “a polite ‘it's our private business, don't bother us' kind of response,” he said.

    As to the possibility of a neighborhood lawsuit against BNSF, “I don't know that, given the company's present tack, they can avoid that outcome,” Sweeney said, adding that at this time the city has no intention of joining such an action.

    The city could, however, allow Edwards' firm to install some monitoring wells on public property, Phelps said, adding that “we have a history of allowing that sort of thing.”

    If evidence emerges of contamination outside the known plume area, then DEQ can require BNSF to pay for additional testing. But for now - with DEQ unable and BNSF unwilling to conduct such tests - any evidence, if it exists, must be collected by the property owners themselves, which in this case means Edwards, Frickle and Culver.

    The city of Whitefish, the firm wrote, is a destination resort that has banked its future on a clean environment, and “BNSF must not be allowed to use it for toxic storage.”

    “Our intent is to answer some basic questions,” Chris Edwards said. “Then we'll see where we go from there.”

    Cliff Edwards is expected to address both residents and town officials at the Monday, May 4, meeting of the Whitefish City Council.
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
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    Serving Injured Railroad Employees Nationwide
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  • #2
    already found

    The current wells being drilled to try and figure out it the plume has expanded onto private land are not expected to find any additional/new toxins. All of the toxins expected to be found outside the rail yard have already been identified inside/underneath the yard. The DEQ has a listing and a map detailing what is there.

    Comment


    • #3
      Originally posted by dhc02 View Post
      The current wells being drilled to try and figure out it the plume has expanded onto private land are not expected to find any additional/new toxins. All of the toxins expected to be found outside the rail yard have already been identified inside/underneath the yard. The DEQ has a listing and a map detailing what is there.
      Dear DHC02-

      You definitely sound like you know what you are talking about on Whitefish. If you have some documents that you could share with the Forum members you can perhaps upload them to a post. That way, if anyone is suffering from medical illnesses that could be caused by exposure to those particular toxins, they would be better informed. Alternatively, if for some reason, you do not want to do that, you can PM me and I will figure out a way to disseminate it. IF you are "in the know" and can not do anything more than you have done without breaching some duty, please PM me and let me know that as I do not want you to do something that would cause you problems.
      On the other issue, I was once involved in a case where we had to drill some monitoring wells and we were very surprised how the migration of the benzene in that case developed. Migration of toxins can be dependent on many factors, e.g. wind, rain, aquifers, etc. So, unless you are 100% sure that the lawyer who is involved in this matter will come up with a goose egg, I would want to hear about his results. Either way, at least from a BNSF employee's FELA claim perspective, if there are already proven toxins to exist upon the yard's property, those person's potential claims would not be dependent upon any findings of the Whitefish "experiment" currently taking place.

      Take care and thank you for your post!
      Steve Gordon
      FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
      Steve Gordon
      Gordon, Elias & Seely, L.L.P.
      FELA Lawyer
      FELA Lawyer Blog
      Serving Injured Railroad Employees Nationwide
      Call for a FELA Lawyer 24/7/365
      800-773-6770

      Comment


      • #4
        Suit Would Put Whitefish City Council in Bind

        By MICHAEL JAMISON of the Missoulian



        WHITEFISH - The suggestion of a lawsuit over railroad contamination in Whitefish has put the city in something of a bind, placing it in an awkward spot between citizens and a large corporate neighbor.

        “The council would have to weigh a lot of things before it joined any litigation, including whether the city wants, or needs, to take an adversarial position with a neighbor such as the railroad.”

        So said John Phelps, city attorney for Whitefish, who added that any such decisions remain a long way off.At issue is an up-and-coming neighborhood, a formerly derelict part of town now being revitalized and gentrified, right alongside the train tracks.

        In recent weeks, representatives of Burlington Northern Sante Fe railway have approached property owners there, saying they'd like to buy buildings that otherwise aren't for sale. The offers have come with hints of possible toxic contamination.

        The neighborhood is adjacent to a known BNSF cleanup site, where diesel and solvents have polluted groundwater. Until now, however, the toxic plumes were not thought to extend into the neighborhoods.

        BNSF will not say why they're making the offers, and will not say which property owners have been approached.

        On April 27, a Billings law firm wrote to city officials, confirming that it had been hired by several locals and would be conducting environmental tests of its own.

        The city, Phelps said, has an interest in the issue, because the known plume does extend beneath several city-owned properties. A recreational bike path treads over the contamination, as does part of a public park and a school playground. A portion of the town's library is atop the plume, as is the city-owned O'Shaughnessy Performing Arts Center.

        Many of those properties, Phelps said, were purchased by the city more than a decade ago, “and no one checked. Back in the early '90s, the contamination wasn't well known in the general community.”

        But now, he said, “we're going into it with our eyes wide open.”

        Phelps saidthe city remains interested in purchasing a patch of land north of the library, where a new city hall has been considered. “It definitely has contamination problems,” he said of the site, “and we're only going to move ahead if we can resolve all those issues.”

        He'll want assurances that the property is safe and healthy, as well as guarantees that any future cleanup costs will be borne by the railroad, and not the city.

        In the past, the city has drilled some test wells of its own, Phelps said, and those have shown a small degree of contamination. But now, with new worries about possible toxic fumes rising from the groundwater aquifer, “we have more questions we'll need to ask.”

        The Billings firm of Edwards, Frickle and Culver are asking those same questions, with plans to sink monitoring wells into the neighborhood along the tracks. The city likely would allow wells on its property, Phelps said, but signing on to any subsequent litigation is another matter entirely.

        “We work with BNSF all the time,” he said, adding that the city and the company have a generally cooperative relationship. The city runs utilities on easements under the tracks, cooperates with weed-control programs, and is thinking of placing a new sewer pipe across BNSF land.

        “We have a very complicated relationship with BNSF,” Phelps said, “but we also have obvious obligations to our citizens. The council will have to find the proper balance.”

        Last week, the mayor and two councilmen met with concerned residents. No such meetings are scheduled with BNSF.

        Just An Update
        FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
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        Gordon, Elias & Seely, L.L.P.
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        Comment


        • #5
          Quick question:

          I was told a while back that a desiel RIP, built before a certain time, were grandfathered from any DEQ regulations as long as theyremained in operation. However they told me that the day it closes, they must start a clean up strategy.

          Wondered if this was true.
          All postings by BadOrderKing are public information, works of fiction, sometimes resembling the rants of a madman and in no way should be construed to represent the positions, views, or thoughts of any particular railroad carrier. No one listens to him anyway.

          Comment


          • #6
            Update on Whitefish Article

            Whitefish residents near rail yard to test for toxins WHITEFISH (AP) — Some Whitefish residents with property near a Burlington Northern Santa Fe rail yard have hired an attorney and plan to test for toxins after BNSF started offering to buy property near the rail yard. Advertisement In an April 27 letter to Whitefish city officials, the Billings firm of Edwards, Frickle and Culver said it had been "retained by several Whitefish citizens to represent them regarding the potential migration of the Burlington Northern Santa Fe Railway's toxic plumes." The firm is "in the process of investigating and testing the soil and groundwater near the rail yard to independently determine the plumes' boundaries and the migration route," according to the letter written by Chris Edwards, son of Cliff Edwards, who won a $14.2 million judgment against BNSF in Park County. A recent Montana Supreme Court decision has increased the railroad's potential liability in a pollution case. Citizens can now sue and recover cleanup costs well beyond the value of their property. A BNSF spokesman said the company has no information suggesting plumes of groundwater contaminated with spilled diesel fuel and chemical solvents have moved. The railroad monitors the pollution itself, reporting to the Department of Environmental Quality. Spokesman Gus Melonas said BNSF does not have the details on Edwards' planned environmental review. Melonas said the company has been making offers to neighbors because it "merely determined that it may be constructive and helpful for everyone to discuss various economic options related to property in the area." More to Follow... Steve Gordon FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
            Steve Gordon
            Gordon, Elias & Seely, L.L.P.
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            Serving Injured Railroad Employees Nationwide
            Call for a FELA Lawyer 24/7/365
            800-773-6770

            Comment


            • #7
              Signs Point To Whitefish River Clean-Up

              Richard Hanners / Whitefish Pilot Orange flagging on a stake shows where surveyors working for BNSF Railway consultants Kennedy/Jenks measured the cross-section of the river near the interceptor trench.
              Whitefish Pilot

              Whitefish mayor Mike Jenson brought the subject up during the city council's June 1 meeting — the Environmental Protection Agency might make a decision on cleaning up the Whitefish River "within a month," he said, based on information from the Montana Department of Environmental Quality.

              Other signs point the same direction. Local surveyors have been out on the Whitefish River in the past few weeks taking cross-sectional measurements of the river. Meanwhile, local contractors report hearing about requests for a dredge large enough to handle river-bottom clean-up work.
              *

              BNSF Railway spokesperson Gus Melonas, however, told the Pilot that dredging is not part of the company's remediation plans. The company's consultants are taking samples from the river, but there are no plans to use a dredge in the river, Melonas said.

              A decade of sampling in the Whitefish River clearly shows diesel fuel contamination in the sediments covering the river bottom, but the exact source of the pollution has not been identified.

              BNSF Railway's environmental consultants, Kennedy/Jenks, began sampling river sediment in 1998. That was the year DEQ issued a "unilateral administrative order" for implementation of a remedial investigation of the company's railyard facility in Whitefish, which is now a state Superfund site.

              The next year, BNSF submitted a draft Ecological Risk Assessment Work Plan to DEQ. A final version of that plan is still being developed.

              The most recent round of river investigations began after a citizen complained of seeing an oily sheen on the surface of the river at several locations. On Aug. 16, 2007, Kate Fry, at DEQ's remediation division, wrote to David Romero, at the EPA's emergency response program in Denver, Colo., informing him of the report. While DEQ is the lead agency investigating the railyard, the EPA is the lead agency for the river.

              DEQ was "looking into seep of oil discovered on Whitefish River (not related to Town Pump)," Fry stated in her activity report. The oil was seen outside the Superfund site's boundary but "could possibly be historic contamination from BNSF," she said.

              Fry said she "wasn't aware of specific releases' and referred to "100 years of operation" and "wastewater lagoons directly discharged to river."

              Romero requested the sediment data collected by Kennedy/Jenks as well as data the consultants had collected from the railyard Superfund site. He also asked "if the city had been told if EPA involved," Fry said.

              The EPA hired its own consultants to investigate the river pollution — URS Operating Services, in Denver. URS personnel traveled to Whitefish in August and October 2007, where they encountered steep riverbanks and thick vegetation and ended up using a boat and waders to collect samples.

              By that time, the official name of the project had been changed from "Whitefish River Gasoline Seep" to "Whitefish River Diesel Sheen," as pollution seen in the river just upstream from the U.S. 93 culverts began to be associated with a leaking underground tank at the Town Pump gas station.

              A number of possible sources for diesel contamination in the river were already known:

              ¥ In 1973, BNSF had installed an interceptor trench between the Whitefish River and its railyard to prevent an underground plume of diesel and Bunker C fuel from entering the river. The trench is below the BNSF Loop Trail and east of the roundhouse, downhill from BNSF's fueling facility.

              ¥ As many as 45 leaking underground storage tanks were documented around Whitefish, and at least 17 of them had not been resolved. These included gas-station and heating-fuel tanks.

              ¥ In July 1989, a BNSF freight train derailed, spilling 25,000 gallons of diesel into Mackinaw Bay, on Whitefish Lake's east shore.

              Kennedy/Jenks' reported in 2000 finding two sites in the river with significant contamination — near BNSF's interceptor trench and near the Riverside Park footbridge, upstream from the Baker Avenue bridge. The first site made sense, but the source of the pollution at the second site was unidentified.

              In addition, Kennedy/Jenks concluded that "heavy contaminants' were being absorbed into the sediments, lessening the chance of water contamination. The consultant also claimed underground fuel had been contained at the railyard, and "natural attenuation" between 1994 and 1999 was decreasing the concentration of the underground plumes in the railyard. The pollution was "weathering away" underground, Kennedy/Jenks claimed.

              URS samples collected in 2007 were tested by the U.S. Coast Guard's Marine Safety Laboratory, which specializes in analyzing samples associated with oil spills. Many of the same chemicals analyzed in the Kennedy/Jenks samples were also analyzed by URS — particularly diesel-range organics, total extractable hydrocarbons and poly-aromatic hydrocarbons, all associated with petroleum.

              Samples were collected by URS at 15 locations — from the outlet of Whitefish Lake downstream to the city's sewage treatment plant. Thick sediment laying at the bottom of the river was disturbed by either walking or using a shovel, and samples were collected if an oily sheen appeared on the surface.

              URS discovered unusually high contamination near the Columbia Avenue bridge, where local fire personnel had set up oil-containment booms. The Coast Guard laboratory concluded that the sample collected there contained very heavy "asphalt-like" petroleum oil.

              Out of 15 locations sampled, only four had no visible sheen on the water surface after the sediment was disturbed. Diesel-range organics were found on both sides of the river, but four locations had the highest concentrations — near the interceptor trench, at Kay Beller Park, near the Columbia Avenue bridge, and 800 feet downstream from the Columbia Avenue bridge.

              "The (diesel-range organics' concentrations in between these four locations decrease, which makes it difficult to link these four locations to the same source," URS reported in March 2008, but the consultants suggested several explanations:

              ¥ Contamination near the interceptor trench came from BNSF's fueling facility, but it was unclear if it was historic or current.

              ¥ River flow is not consistent at different locations, and contamination might settle in areas of low flow or be washed away in areas of high flow.

              ¥ The composition of the river sediments could change from one location to another, and some materials might better absorb contamination.

              ¥ Contamination might be migrating by groundwater or subsurface pathways
              .
              Steve Gordon
              Gordon, Elias & Seely, L.L.P.
              FELA Lawyer
              FELA Lawyer Blog
              Serving Injured Railroad Employees Nationwide
              Call for a FELA Lawyer 24/7/365
              800-773-6770

              Comment


              • #8
                Argh, the past is prologue! Shades of (name your favorite abandoned Superfund town)
                sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

                Comment


                • #9
                  Originally posted by jonnyseeandoh View Post
                  Argh, the past is prologue! Shades of (name your favorite abandoned Superfund town)
                  Unfortunately, these things have such a slow way of developing. The information just "seeps" out slower than the contaminent seeped out. It would be nice if the EPA and the state DEQs would just jump on the issue and get to the extent and severity of the problem amd then get down to how much and who pays. Meanwhile the injury just gets larger and harder to repair while all the political jockeying goes on.

                  Steve Gordon
                  http://www.Gordon-Elias.com
                  Steve Gordon
                  Gordon, Elias & Seely, L.L.P.
                  FELA Lawyer
                  FELA Lawyer Blog
                  Serving Injured Railroad Employees Nationwide
                  Call for a FELA Lawyer 24/7/365
                  800-773-6770

                  Comment


                  • #10
                    The knee-jerk reaction always seems to be denial. Should be more along the lines of. "We'll look right in to it, and tell you what we find." Hiding doesn't make the eventual cost go away, sneaking around doesn't either. But if you're going to spend zillions anyway you might as well try for some goodwill by being proactive.
                    sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

                    Comment


                    • #11
                      jonnyseeandoh--Maybe BNSF Reads Your Posts!

                      Official: Havre diesel fuel contamination may be worst

                      HAVRE (AP)

                      The contaminated ground that underlies a portion of Havre and the threat it poses to drinking water supplies represents one of the most serious diesel fuel contamination sites in Montana, a Department of Environmental Quality officer says.

                      An estimated 1.5 million gallons of diesel fuel was spilled by workers or leaked from equipment at the railyard between the 1940s and 1970s, and initial attempts to clean it up began in the 1980s.

                      The property is owned by what is now the Burlington Northern Santa Fe Railway, which is in the midst of a long-term effort to remove the fuel from the soil and prevent further contamination.

                      “It’s a deep, deep problem and how it’ll all shake out — who knows? It depends on how much the public cares or wants to get involved,” said Byron Welter, former owner of the Park Hotel. Diesel fuel began leaking in shortly after Welter purchased the historic building in 1993.

                      “The steps that BN is taking now with the product recovery system and the monitoring are helping the situation and decreasing the amount of fuel that’s within the subsurface,” said the DEQ’s Doug Martin. “But one question that won’t be answered for a while is, is the situation improving or is the situation becoming worse?”Martin is supervising the cleanup in Havre and 20 other sites in Montana where the Texas-based railroad is trying to remove fuel pollution.


                      The railroad has accepted responsibility and removed some 170,000 gallons of fuel from the ground at its facility since a network of wells was installed in 1989.

                      “We have stepped up to the plate,” said BNSF spokesman Gus Melonas. “We have not denied that there was contamination and we are committed to taking care of this matter.”

                      Since 1985, the railroad has spent millions of dollars investigating the extent of the contamination, he said. It has upgraded leaky underground pipes and instituted safety measures to prevent more fuel from spilling.

                      Based on the analysis of more than 60 wells on the BNSF property and nearby, the plumes of fuel appear to be fanning out and sinking toward a 50-foot-deep underground aquifer.

                      Compounds such as benzene and vinyl chloride, both known carcinogens, have appeared in soil tests at the rail yard.

                      Traces of fuel — considered safe and drinkable at 1 or 2 parts per million - were detected in 1997 and 1998 in seven of 27 water wells tested in the North Havre residential blocks nearest the rail yard.

                      Though no traces were found this year, officials can’t declare that the three large plumes have stopped spreading into the community. With low or undetectable traces of contamination and no reported medical problems related to the water, they contend the water remains safe to drink.

                      Steve Gordon
                      FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
                      Steve Gordon
                      Gordon, Elias & Seely, L.L.P.
                      FELA Lawyer
                      FELA Lawyer Blog
                      Serving Injured Railroad Employees Nationwide
                      Call for a FELA Lawyer 24/7/365
                      800-773-6770

                      Comment


                      • #12
                        Will wonders never cease?
                        sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

                        Comment


                        • #13
                          Gee.....Really?

                          BNSF explains why it bought homes near rail yard

                          By The Associated Press


                          Story Published: Jul 8, 2009 at 7:17 AM MDT
                          Story Updated: Jul 8, 2009 at 7:17 AM MDT



                          KALISPELL - BNSF says it bought several properties near a Whitefish rail yard not to avoid cleaning up contamination but to mitigate the company's legal liabilities.Some Whitefish residents with property near the yard had hired an attorney and planned to test for toxins after BNSF started offering to buy the homes. They feared toxic plumes from a refueling facility were migrating to their properties.
                          But BNSF Vice President Charles Shewmake assured a group of property owners and officials, including Gov. Brian Schweitzer, Tuesday there are no health or safety risks posed by plumes of contaminated groundwater near the yard. [Sure!!]

                          Shewmake says the railroad wanted to avoid a similar outcome to a court case between the town of Sunburst and oil giant Texaco. In that $41 million lawsuit from 2007, the state Supreme Court ruled against Texaco for extensive gasoline spillage at its former refinery in Sunburst.
                          Shewmake says BNSF probably won't buy any more homes near the yard, and the company and environmental officials believe the subsurface is stable and so are the plumes.
                          ---------------------------------------------------------
                          Whitefish superfund site raises concerns

                          Posted: July 7, 2009 06:33 PM

                          Updated: July 7, 2009 07:42 PM
                          Whitefish superfund site raises concerns
                          Reporting for KAJ in Kalispell
                          Whitefish residents say the state superfund site at the Burlington Northern Fueling Facility is a concern both for safety and financially.

                          On Tuesday, the governor, property owners and Burlington Northern officials gave an update on the site.

                          Burlington Northern Sante Fe has been trying to purchase properties along the rail yard in Whitefish to avoid lawsuits. But officials say property values are remaining high and it didn't make sense to go forward with that plan.

                          "So we're really scaling back any attempts to acquire property in this market, we think number one, it's a distraction from remediation efforts, and we are also concerned that it's creating some concern in the community that doesn't need to be there," BNSF VP and general counsel Charles Shewmake said.

                          BNSF has purchased three to four properties along the site and possibly two or three more will close.

                          Spills from the fueling facility caused soil and shallow groundwater contamination. Railroad officials also sa

                          they don't think the site is any safety risk. They added that the groundwater is drinkable and poses no imminent health risk.

                          BNSF is working with the Department of Environmental Quality on the site clean-up. They are also working with the Environmental Protection Agency to remove some diesel contamination from the Whitefish River.

                          The Whitefish mayor says this is a two-fold problem, both determining what the actual level of environmental problem is and the economic impacts.

                          "Whitefish will survive it. My biggest concern though is that individuals and people that have invested in the area may not, and it's very important that we protect those fledgling businesses that have migrated to this area," Whitefish Mayor Mike Jenson said.

                          Jenson asked BNSF officials to put the properties they purchased back on the market.

                          Steve Gordon
                          http://www.gordon-elias.com/CM/FELA/...A-Overview.asp

                          Last edited by FELA FELLA; 07-08-2009, 10:42 PM.
                          Steve Gordon
                          Gordon, Elias & Seely, L.L.P.
                          FELA Lawyer
                          FELA Lawyer Blog
                          Serving Injured Railroad Employees Nationwide
                          Call for a FELA Lawyer 24/7/365
                          800-773-6770

                          Comment


                          • #14
                            BNSF comes clean in Whitefish, but residents skeptical about contamination

                            BNSF comes clean in Whitefish, but residents skeptical about contamination
                            By MICHAEL JAMISON of the Missoulian


                            WHITEFISH - Four months ago, railroad officials began offering to buy homes in a trendy Whitefish neighborhood, discreetly suggesting the ground beneath might be contaminated.

                            On Tuesday, representatives for Burlington Northern Santa Fe admitted they have no evidence of contamination; rather, they were hoping the property purchases would help to limit future legal liabilities.

                            “But you can't un-ring the bell once it's been rung,” said Jan Metzmaker. “They've done quite a bit of damage around here with this real estate play. People's livelihoods have been hurt, and we still don't know what to believe.”

                            Please Install Flash Player
                            Metzmaker is director of the Whitefish Convention and Visitors Bureau, which keeps offices in Conductor's Row. The facility is mixed use - residential condos up top, commercial down below - and is located at the heart of the newly refurbished Railroad District neighborhood.

                            For years, city officials have encouraged investment to revitalize the neighborhood, identifying it as the obvious direction for downtown growth. That investment stalled, however, when BNSF representatives started approaching property owners - and then refused to say whom they were contacting or why, despite official requests from state regulators. Speculation ran rampant as several landowners sold out, but still the railroad offered no explanations.

                            It's no secret, of course, that the adjacent railyard is contaminated - diesel in the aquifer, chlorinated solvents in the ground water, metals in the soil. Cleanup has been ongoing since 1973.

                            “And bear in mind,” Metzmaker said, “that plume is not in a holding tank. It's moving.”

                            She doesn't entirely trust railroad maps that show the plume stopping, “conveniently,” at the company's property line.

                            It's a story repeated at BNSF sites statewide, with nearly two dozen railyards on Montana's top-priority cleanup list.

                            In fact, company officials said, legal opinions from those other sites - including a multimillion-dollar liability decision in 2007 - increased BNSF's financial exposure and spurred railroaders to contact Whitefish property owners.

                            Courts have concluded that BNSF can be held liable for expensive cleanups to neighboring properties, if contamination spreads.

                            The decision to make offers on Whitefish lands, railroad officials said, was not an attempt to avoid cleanup; instead, it was an attempt to “manage our costs and risks” during cleanup.

                            That answer, however, may prove too little and too late for at least some of the property owners. Bill Kahle, for instance, already has lost income due to the railroad's initial secrecy.

                            Kahle owns Conductor's Row, and had leases finalized for a new bakery on the ground floor, as well as a couple of residential condos upstairs. But then BNSF came knocking, he said, mentioning possible contamination, “and of course we felt obliged to share that with the potential tenants.”

                            The tenants chose to rent elsewhere.

                            Why, Kahle wonders, didn't the railroad admit up front that there was no contamination, and that the purchase offers were simply an attempt to reduce legal liability? If they had, he said, he could have rented his spaces without concern.

                            “The secrecy,” Kahle said, “was the real problem.”

                            Company spokesman Gus Melonas said the company did, in fact, tell the public there was no new data indicating contamination - but that just leaves landowners wondering why BNSF would mention contamination when making purchase inquiries.

                            Others shared experiences similar to Kahle's, and all now are wondering what sort of remedy BNSF might offer, if any.

                            “That's a question we're trying to answer right now,” Kahle said.

                            Another question is what to do about the stigma now attached to the Railroad District.

                            “We have a reputation problem,” Kahle said, “and it's not necessarily of our making.“

                            Officials at BNSF have launched a Web site - Whitefish Remediation Information - to clear up confusion and to stress that the neighborhood is safe.

                            In addition, city officials and residents are discussing what sort of public relations message to send regarding the resort town's environmental health.

                            “The lake, the river and the clean environment are our economic drivers,” said local innkeeper Rhonda Fitzgerald. “That's our brand. I really don't think BN has any idea how damaging their talk of contamination might be. The potential for harm here is huge.”

                            Already, Metzmaker said, BNSF has pulled electrical service from the few properties it has purchased, and she fears the buildings will be left vacant or even torn down, leaving holes in an otherwise vibrant neighborhood.

                            Mayor Mike Jenson has asked the company to put the lots back up for sale.

                            “If, in fact, what they say is true, and there is no contamination, then why not put the properties back on the market?” Jenson asked. “They say they don't want to be in the property management business, and nothing would demonstrate more clearly that the neighborhood really is clean.”

                            The railroad, for its part, says on the Web site that it “has made no decisions with regard to the properties we have acquired. BNSF also works and lives in Whitefish and has a vested interest in the Railroad District's economic viability.”

                            The company also says that “at this time, we may not make any additional property purchases in Whitefish. Frankly, some property values are too high for us to justify acquisition.”

                            At least some of those who did not sell now are looking at third-party soil and water testing, to confirm BNSF's clean bill of health.

                            “Absolutely,” Mayor Jenson said. “You will see some independent testing. That's for sure.”

                            The city already has applied for a $50,000 state grant, he said, and private property owners are likewise initiating environmental tests.

                            “Certainly, we have our concerns,” Kahle said, “and it's quite likely that we'll pursue some research of our own.”

                            As will the state. “We're looking for other resources,” said Gov. Brian Schweitzer, who convened Tuesday's meeting, “so that we can punch some new wells and see where we are up there.

                            “Let's get the data,” Schweitzer added. “People deserve to know what's going on.”

                            Richard Opper, director of Montana's Department of Environmental Quality, said a new site manager has been hired to oversee cleanup at the Whitefish railyard, and residents will see increased DEQ investigation into both the scope and the parameters of the contamination plume. There's a “renewed commitment” to the site, he said, and residents can expect better communication, he said, both from his agency and from BNSF.

                            Tuesday's meeting, Schweitzer said, marked “a beginning” for better relations.

                            “I think BN was fairly frank that they had blown it in terms of public relations,” Opper said, adding that he hoped Tuesday's meeting would spark a more open dialogue.

                            “The residents who are right on the cusp of the plume are justifiably ,” Opper said. “We need to provide them some answers.”

                            And not just any answers.

                            “So far,” Fitzgerald said, “the railroad has been doing all the testing itself. What the community wants is the real answer, not the answer BNSF is providing.”

                            Steve Gordon
                            http://www.gordon-elias.com/CM/FELA/...A-Overview.asp
                            Steve Gordon
                            Gordon, Elias & Seely, L.L.P.
                            FELA Lawyer
                            FELA Lawyer Blog
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                            • #15
                              Why it’s Hard to Believe BNSF

                              By Kellyn Brown, 07-17-09
                              Burlington Northern Sante Fe Railway was hoping to clear the air last week when it told a group of prominent Whitefish politicians and business owners – oh, and Gov. Brian Schweitzer – that a large swath of the fastest-growing city in the state is habitable. But instead of appeasing those who have watched their property values drop and feared that their soil may sit on top of an oily plume, the railroad giant dug itself into a deeper toxic hole.

                              The company feared getting sued, BNSF Vice President Charles Shewmake more or less told the crowd gathered at Whitefish’s Depot Park near what once was a fueling station blamed for the dubious seepage. Shewmake went on to reassure everyone that it’s safe to live near the tracks and his company has changed its mind and now really wants to be forthcoming about its recent real estate transactions.

                              While those at the hastily scheduled meeting appreciated Shewmake’s candor, they told him that they would conduct their own soil tests and might sue his company anyway. And, really, who can blame them? BNSF’s undercover real estate operation couldn’t have come at a worse time, especially for those who border the few properties that BNSF has already purchased.

                              Speculation and rumors spread fast in small towns like Whitefish. And BNSF’s interest in buying the properties derailed at least one major project, Bill Kahle’s Conductor’s Row development, and likely muddled a handful of others. The railway district is essential to the town’s future growth; it’s an attractive mixed-use neighborhood a stone’s throw away from downtown. In this economy, it certainly didn’t need BNSF spooking jittery investors.

                              Now, the neighborhood is in limbo, and BNSF’s response to the problem it created is rather weak. The railroad said it will make a public relations push by running some advertisements and creating a Web site to let everyone know that what lies beneath the railway district properties, many of which were recently renovated or built, is just plain-old dirt.

                              That, however, will do little to quell fears when the company’s answers continue to raise more questions.

                              Is the neighborhood safe? BNSF says it is, but why then did it go on this buying binge in the first place when pollutants near the tracks have been known about for years. What, exactly, set the company off?

                              Shewmake pointed to Montana’s “unique litigation” conditions and cited a 2007 case where the town of Sunburst was awarded $41 million from Texaco after the Montana Supreme Court ruled against the oil giant for spilling gas at its former refinery there.

                              But what are BNSF’s plans for the three homes it has already bought and the few more it plans to close on? Whether they are abandoned or razed will matter little to those who own the neighboring real estate and must worry if their values are plummeting.

                              BNSF being upfront now hasn’t brought any type of closure to the Whitefish neighborhood. Along with private citizens, the Department of Environmental Quality will be taking its own soil tests. The nearby Whitefish River will also be tested.

                              The lack of transparency is a public relations disaster for the railroad company, which is an integral part of the town’s storied history. And along with distrust, BNSF is also likely to get sued anyway.

                              “Whitefish is safe,” Shewmake declared.

                              Too bad there is no reason for anyone in the railway district to believe him.

                              COMMENT: I think the execs at BNSF should be required to move into the three purchased homes. I wonder if they would do it?

                              Steve Gordon
                              Mississippi FELA Overview - Law Firm Gordon & Elias, L.L.P. Attorneys Houston, Texas
                              Steve Gordon
                              Gordon, Elias & Seely, L.L.P.
                              FELA Lawyer
                              FELA Lawyer Blog
                              Serving Injured Railroad Employees Nationwide
                              Call for a FELA Lawyer 24/7/365
                              800-773-6770

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