Whitefish residents hire lawyer to test for contamination from railyard
(The following story by Michael Jamison appeared on the Missoulian website on May 4,2 009.)
WHITEFISH, Mont. 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.
BNSF suit would put Whitefish City Council in bind
(The following story by Michael Jamison appeared on the Missoulian website on May 4,2 009.)
WHITEFISH, Mont. 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 said the 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.
