Residents sue BNSF over pollution

A small group of former and present North Havre residents have sued the Burlington Northern Santa Fe Railway and two of its executives for damage the lawsuit says was caused by chemical spills and leaks at the Havre railyard.

The suit, filed Friday in state District Court in Havre, alleges 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 contamination caused damage to property belonging to Irvin and Ruby Borst, Earlene DeWinter, and John and Linda Malley, the suit said.

BNSF spokesman Gus Melonas said this morning that the railroad does not comment about ongoing legal matters.

The five plaintiffs are represented by Great Falls attorneys Mark Kovacich, Tom Lewis and David Slovak. The three are the same attorneys who won a settlement from BNSF last year on behalf of more than 100 North Havre residents who claimed that chemical seepage from the Havre railyard contaminated soil and groundwater. The five plaintiffs in the new suit were not involved in that case.

The terms of the settlement were undisclosed, and BNSF admitted no wrongdoing.

Kovacich said this morning that the plaintiffs in the new lawsuit own land in the same area as the plaintiffs in the other case. Friday's lawsuit alleges BNSF is responsible for contaminating water and land in a residential neighborhood and seeks unspecified damages.

The 18-page document claims that BNSF and its predecessor companies, the Burlington Northern Railroad and the Great Northern Railway, knew the extent of the contamination and the hazards it created, but lied to the residents of North Havre about the contamination and failed to take appropriate clean-up measures.

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 suit claims BNSF was negligent in 12 areas, including deliberately dumping hazardous material into the ground, Bullhook Creek and the Milk River.

Kovacich said the assertion stems from statements made by former BNSF employees.

"There was testimony by former employees in the prior case that people were directed to allow diesel to drain into the ground on many occasions," Kovacich said, adding that the claim is disputed by the railway.

The lawsuit also said 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."

The spilled chemicals include vinyl chloride, dichloroethane, dichloroethyne, and dissolved diesel and gasoline-related contaminants, Kovacich said.

Toxic chemicals were also spilled in other ways, he said.

"Our belief is that they used solvents to wash locomotives," he said. "The solvents drained into runoff pits, and was then pumped into wastewater lagoons on the north edge of railroad property near North Havre. Chemicals leached from the lagoon into the groundwater and were carried into North Havre."

The lawsuit said BNSF has committed trespass by allowing toxic chemicals to "invade the real property of the Plaintiffs by way of soil, groundwater, and air." It also said the railway should be penalized for engaging in abnormally dangerous activity by using large quantities of materials known to be hazardous in close proximity to residential neighborhoods.

BNSF profited from the use of these chemicals, the lawsuit said. It asks that the plaintiffs be compensated not only for their alleged loss, but also for the railway's financial gain.

The plaintiffs also allege that BNSF violated their constitutional rights. The lawsuit claims the railway denied them "the right to a clean and healthful environment" as guaranteed by the Montana Constitution.

The suit asks that BNSF be ordered pay to remove present and future contamination and compensate the plaintiffs for actual damages. The damages are described as a loss of property and rental value, economic opportunities, and loss of enjoyment and use of personal property. In addition to actual damages, the suit also seeks 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 November 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. DEQ is still studying that proposal.

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 seeped into the groundwater under the community.

BNSF has paid for bottled water supplies for some North Havre residents.