State, BNSF clash over cleanup

(The following article by Sonja Lee was posted on the Great Falls Tribune website on May 7.)

LIVINGSTON, Mont. -- Surrounded by mountains, this gateway community to Yellowstone National Park is a Montana postcard.

The coffee shops are quaint, the houses charming. The Yellowstone River winds by, luring masses of trout fishermen to its banks.

Yet beneath the picturesque landscape lies a stalled environmental cleanup that dates back some 20 years. Contaminants from former railroad operations have locals worried about their health and frustrated by the lack of action.

"We get really cynical, and there is sort of a sense of helplessness sometimes," said Jim Barrett, executive director of the Park County Environmental Council.

That may change.

Last month Montana Gov. Brian Schweitzer threw down the gauntlet. And many Montanans who never knew about the pollution lingering under Livingston probably do now.

Schweitzer publicly demanded that BNSF Railway Co. clean up the mess. He warned that if it drags on the state will do the work and send BNSF the bill.

The railroad responded just as forcefully, placing full-page advertisements in Montana newspapers disputing the governor's claims.

Livingston is just one of 18 BNSF state Superfund sites in Montana. But it's among the most contentious, in part because of the health concerns and the seemingly endless cleanup negotiations.

BNSF officials say they are making progress in Livingston, and the state itself is responsible for the delays.

"BNSF is confident that the groundwater in Livingston can be cleaned up and in fact, has already taken cleanup actions, which have reduced both the size of the plume and its concentrations," said Gus Melonas, a spokesman for the railroad.

Northern Pacific built a maintenance shop in Livingston in the 1880s. In the early and mid-1900s, more than 1,000 railroaders worked in Livingston's Burlington Northern rail yard and locomotive repair shops there.

For decades, in what was then common practice, workers dumped excess chemicals and diesel onto the ground.

Today, a sheen of diesel floats on the groundwater under the tracks at the rail yard. Two other chemical plumes, trichloreoethene and tetrachloroethene, stretch from the rail yard northeast for more than a mile, passing under the Yellowstone River.

Some of the chemicals are volatile compounds suspected as likely causes of cancer and there's concern that they now are bubbling up in residential basements.

Since 1985, monitoring wells have been in place. And 18 years ago the city closed contaminated municipal wells in the area of Q and L streets. BNSF paid nearly $2 million for new, clean wells. Residents jokingly refer to it as the "nightmare on L Street."

Yet the full extent of the problem in Livingston still is being investigated 20 years after pollution was first discovered.

Steps were taken to make sure the pollutants aren't continuing to migrate. The majority of the diesel plume is gone, removed by natural degeneration and human efforts. Sludge pits were emptied and cleaned. Areas around the electrical shop were excavated and cleaned.

Last spring a 20-foot-high cinder pile, which also was about 600 feet long, was capped and covered in grass. That effort, too, was contentious, with a back-and-forth between the state and railroad about how thick of a soil cap was needed to bury the asbestos and other contaminants, Barrett said.

Not far from the rail yard a crumbling, older home is spray painted with the word "DEMO."

BNSF is purchasing property near the rail yard as part of the ongoing remediation process, Melonas said. Five properties have been bought to date and probably will be demolished.

Late last year, two real estate agents and railroad officials approached John Bauer and offered to buy his properties. Bauer sold a rental property to the railroad. It will be bulldozed.

On Bauer's other property, he agreed to grant BNSF a right of first refusal and allow the railroad to purchase the property when he's ready to sell. He has a home and auto repair shop near the railroad.

The neighborhood includes a mix of homes, mobile homes and a few businesses.

As Bauer shuffles through thick grass on his property, he pauses to check out a row of cars moving down the tracks. He lives spitting distance from the rail yard and the cinder pile that he refers to as the "grassy knoll."

He is a sixth-generation railroad man. It's hard to speak ill of a legacy.

Bauer doesn't know how the rental house checked out as far as environmental testing. He doesn't worry about his property, although he said that it's been tested several times, and trace amounts of abnormal chemicals were discovered.

He raised four children here, and he worries more about ash that used to spill from a nearby incinerator.

The Agency for Toxic Substances and Disease Registry did a pancreatic cancer study and a follow-up study in the early '90s. The agency's findings revealed an elevated number of pancreatic cancers in the Livingston area, but no definitive link was made between the old rail yard and the elevated levels.

"I don't think anyone knows whether there was a direct link or not," said Dr. Leslie Hutchinson, who conducted the first ATSDR study in Livingston. "From 1980 to 1985 there was a three-fold increase in pancreatic cancer for people living adjacent to the site."

Hutchinson, who is now president of HLM Consultants in Atlanta, said the study did rule that age and smoking the major risk factors for pancreatic cancer were not the cause of problems in Livingston.

There is typically a 20-year latency period for the cancer. Because no information dating back to the 1960s was available about chemical exposure, it was impossible to declare a link, he said.

"There was an unusual increase there, but there wasn't exposure information that went back far enough," he said.

"I think it was very memorable," he added. "It's very odd to find those elevated levels."

A subsequent study was done at other rail sites, but those sites were different in terms of chemicals and exposures, he said. The ATSDR concluded that the rail yard site constituted no public health hazard.

Barrett said more recent preliminary monitoring showed elevated chemical levels in a few residences and businesses near the rail yard.

"We are trying not to be alarmist about it," he said.

More testing is under way to monitor the air in a handful of homes to determine whether traces of chemicals are leaching from the ground, said Jarrett Keck, project manager for the Department of Environmental Quality. A "Record of Decision," or cleanup guide, completed in 2001 required the additional indoor air sampling, Keck said.

As far as DEQ knows, no one in Livingston is consuming polluted water, he said. The concern is vapor intrusion, or chemicals seeping into homes.

"How we proceed in the future is to be determined," Keck said. "Gov. Schweitzer has a plan. We are developing a plan to implement his mandate."

In fact, Schweitzer speaks about the Livingston mess almost as passionately as he advocates synthetic fuels.

He said he's intervening in the cleanup because it's simply taken too long. It's also near the headwaters of the Yellowstone, one of the nation's most endangered rivers.

"I don't want my legacy to be we didn't finish the cleanup, and then I got a job for Burlington Northern," Schweitzer said.

That's a reference to positions some of his predecessors in state government now hold:
pFormer Gov. Marc Racicot is an officer on the BNSF Board. Racicot, a Republican, served as Montana governor from 1993 until January 2001. In September of that same year, he was elected to the BNSF board.

pBarb Ranf, a high-ranking official under former Republican Gov. Judy Martz, recently became a lobbyist for BNSF.

Schweitzer doesn't know why the cleanup has drug out 20 years.

"I can't speak for former administrations, and they can't speak for themselves because now they work for BN," he said.

The Environmental Protection Agency investigated the Livingston rail yard and in 1994 recommended it be named a federal Superfund site meaning it would be listed among some of the most polluted sites in the nation.

Racicot declined to have the site listed, choosing to keep the state in the lead.

Railroad officials say the relationship between former government officers and BNSF have not and are not influencing issues in Livingston.

Mark Simonich served as the DEQ director under Racicot.

"He never tried to influence us," Simonich said of Racicot.

If Burlington Northern officials weren't getting a response they were pleased with, they would raise concerns with higher ups, Simonich said. Meetings would be set up with technical and legal staff, he said.

"But I was never pressured from anywhere above," he said.

Simonich said much of the work at the site was guided by agreements made by past administrations.

"BN is like most companies, they do their level best to be cautious about where they spend their money. They often times won't rush into a cleanup," said Simonich, who is now chief policy adviser to Secretary of State Brad Johnson.

He also said cleanups are complicated, and the state regulations aren't the easiest to work with. Superfund law itself is slow, he said.

"I can't begin to put blame on one party or the other," he said. "BN is trying to protect its stockholders and to be responsible. DEQ is dealing with complex regulatory laws."

Many in Livingston, a community of about 7,000, have a love-hate relationship with the railroad. The jobs were welcome; the pollution was not.

They are cynical about the politics and refer to Racicot and Ranf's positions as ironic.
Some are more outspoken.

"It's now over 20 years that they have known this stuff is under Livingston, and it's still there," said Public Service Commissioner and former Livingston legislator Bob Raney. "The reason is dollars and cents and 16 years of Republican governors cutting deals with BN."

BNSF sold the Livingston Shop Complex in 1987. By that time, the workforce had been reduced from a high of 1,700 to about 275 employees.

When BNSF pulled out of Livingston on Feb. 4, 1986, it broke a lot of hearts.

Montana Rail Link and Talgo-LRC, a company that services locomotive engines, operate today in Livingston. Every few minutes a slow-moving train rumbles down the tracks. The railroad depot is the heart of the community and now houses shops and offices. It's still where locals meet for receptions and gatherings.

When the contamination issue surfaced, lawsuits emerged as the rule not the exception. The state was going to sue BNSF, but a new administration dropped the suit. Former railroad workers started talking with lawyers, and the legal fights were on.

Neighboring business sued BNSF, so did Park County. Many cases were settled out of court. Park County won a $14.7 million settlement.

Livingston is one of the more complicated Superfund sites in Montana. There are 210 state Superfund sites, and 15 federal Superfund sites.

In 2001 measures costing at least $2.2 million were proposed for cleanup of railroad pollution in Livingston. The solution relied on removing contaminated soil and sludge and letting natural processes degrade pollution in the groundwater.

The next step was for DEQ and the railroad to negotiate the specifics. The endless negotiations are one reason Livingston is in the spotlight.

"We work on a lot of Superfund sites with a lot of different companies and some are much easier to work with than others," said Denise Martin, site response section manager with the DEQ, which oversees the cleanup of state Superfund sites.

"At this particular site we find we are in disagreement quite often, and BNSF wants to appeal all of those technical decisions," she added.

DEQ Director Richard Opper said the state has spent too much time negotiating.

"Now we have pulled the plug on negotiations. BN will get one chance to react to our work plans and decide if it will work," Opper said. "If not, we will order it be done, and BN will have to do it."

BNSF officials say the railroad has spent $12 million on remediation at the Livingston rail yard.

Melonas said the railroad has worked with different administrations and project managers to the best of its ability. BNSF submitted, and the DEQ approved, a final plan more than six years ago, he said.

"DEQ has asked for further studies," Melonas said. "DEQ is in charge of setting the timeline."

Cleanup actions at the site also are subject to a 1990 Consent Decree. Based on that agreement, the railroad can't initiate any remediation without the DEQ's approval.

The DEQ spent three years preparing a Record of Decision determining a remedy for problems at the site, according to a letter to the DEQ from Mark Stehly, a BNSF vice president of environment and research development.

"The time DEQ has taken to review BNSF's work plans and reports is over four times longer than the time BNSF spent preparing the work plans and finalizing the reports," Stehly wrote.

State officials acknowledge they are partly responsible for some of the slowdown.

"The work that is being done now is part of the final cleanup, and we have to make sure it's done right so that we are sure we are protecting human health and the environment," Martin said.

Martin also said DEQ staff turnover has contributed. Keck is the fifth state project manager for Livingston. There were periods when the position was vacant and couldn't be filled because of hiring freezes issued by former administrations, she said.

BNSF also has had different officials on the case. And in the case of both the railroad and the state, it takes time to get caught up on the project's long and complicated history.
The DEQ recently appointed one of its senior project managers, who has more than 15 years experience, to take over at the Livingston site. The agency also says it's time to stop pointing fingers and focus on the job.

Bob Jovick, who was Livingston city attorney from 1975 to 1995, said both sides share responsibility.

"We were concerned back then that things were not moving at a very rapid rate either on the Burlington Northern side of things nor the state side of things," Jovick said.

Monday, May 8, 2006

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