By Patrick Winderl
Havre Daily News
A Havre couple have joined a growing list of people who have filed suit against the Burlington Northern Santa Fe Railway and two of its executives for damage they claim was caused by chemical spills and leaks at the Havre railyard.
In a lawsuit filed last week in state District Court, John and Modesty Caven allege that chemical contamination has damaged their First Street business. The suit seeks unspecified actual and punitive damages.
Modesty Caven said Wednesday that the couple have been advised not to discuss the case.
BNSF spokesman Gus Melona said this morning that the railroad does not comment about ongoing legal matters, but said BNSF is taking responsiblity for contamination it has identified.
"We have implemented the latest technology to remediate the situation and work closely with the state on this matter," he said.
The Cavens are represented by the Great Falls law firm Lewis, Slovak & Kovacich. The firm is the same one that represents five other people who filed a similar suit Jan. 16. The firm also won a settlement from BNSF last year on behalf of more than 100 North Havre residents who were plaintiffs in another lawsuit.
The terms of that settlement were undisclosed, and BNSF admitted no wrongdoing. The plaintiffs in the two new lawsuits were not involved in that case.
The suit filed last week makes allegations similar to those in the Jan. 16 suit, but attorney Mark Kovacich said this morning that certain elements in the two cases are different.
"The railroad could attempt to (consolidate the two cases), but I don't think it would be appropriate," he said. "These people are on the other side of the tracks and there's a lot of different issues involved."
The plaintiffs in the Jan. 16 suit are all former or present North Havre residents. That lawsuit claims that chemical contamination has damaged residential properties in North Havre. The Cavens' lawsuit claims that chemical spills and seepage have damaged the couple's business, Shamrock's Bar & Casino, which lies south of the rail depot and the Milk River.
Both lawsuits claim BNSF "caused hundreds of thousands of gallons of diesel fuel and other toxic contaminants and hazardous substances to enter the soil, surface waters, and groundwater in and around" the railyard.
The documents claims that BNSF and its predecessor companies, Burlington Northern Railroad and the Great Northern Railway, knew the extent of the contamination and the hazards it created, but lied to nearby residents about the contamination and failed to take appropriate clean-up measures.
The suits accuse BNSF of deliberately dumping hazardous material into the ground, Bullhook Creek and the Milk River.
Kovacich said in a previous interview that that claim stemmed from testimony given by former railroad employees during the first lawsuit, which BNSF settled.
Both new suits also say BNSF failed to build or use proper facilities to prevent the spill of toxic chemicals within the railyard. The lawsuit said underground storage tanks and piping "ruptured and spilled their contents."
In addition to naming BNSF as a defendant, the lawsuit also names David Smith, the company's manager of environmental remediation, and Maurice Plott, general manager of the Montana Division of BNSF.
The Cavens' lawsuit seeks damages for a lost property value, loss of use and enjoyment of their property, lost business income, the cost of using alternative water sources and the cost of relocation expenses. It also seeks awards for "annoyance, inconvenience and discomfort," attorneys' fees and punitive damages.
BNSF has initiated a number of measures in recent years to remediate environmental contamination near the Havre railyard.
When the Montana Department of Environmental Quality said it found unacceptable levels of vinyl chloride in some samples of groundwater in North Havre in 2002, BNSF proposed a two-part plan to reduce the chance of drinking water becoming contaminated. Samples of drinking water were found to be at safe levels.
The first phase was to drill horizontal wells in the 200 block of 11th Avenue North. In the second phase, the railroad proposes filling the wells with sodium lactate, a substance that could speed up the degradation of the chlorides into less dangerous compounds. That proposal is still under review.
It was not the first time BNSF has been involved in monitoring water contamination in North Havre. Compounds associated with diesel fuel were detected in the water several years ago, and DEQ required the company to monitor and treat the problem.
DEQ has estimated that as much as 1.5 million gallons of diesel fuel spilled or leaked at the railroad yards in North Havre between the 1940s and 1970s and seeped into the groundwater under the community.