BNSF Railway Company plume trial to begin

LIVINGSTON (AP) — A trial to determine BNSF Railway Company's responsibilities for cleaning up plumes of fuel and toxic solvents beneath Livingston starts Monday in Great Falls.

The trial is set to resolve a suit 165 Livingston plaintiffs filed in 2007, which alleges BNSF has neglected to adequately clean up pollutants the company and its predecessors dumped at the Livingston Rail Yard for decades.

Pollutants migrated from the 90-acre rail yard into surrounding residential and business properties, exposing affected landowners to health and safety risks and diminishing the value of their properties, plaintiffs contend.

Since the suit was filed, about 50 plaintiffs have been removed from the case because their properties were found to be outside of the plume or because of the time frame of their ownership.

Montana Department of Environmental Quality data indicate a plume of diesel fuel that could range from 110,000 to 700,000 gallons floats on groundwater beneath Livingston. The plume stretches from E Street to O Street beneath the rail yard and reaches halfway across the block between Park and Callender streets to the south, according to DEQ documents.

Less is known about a more extensive plume of toxic solvents, which DEQ documents indicate is dissolved in groundwater and has penetrated bedrock.

The railway contends it and its predecessors exercised reasonable care and followed the law during the course of railroad operations and cleanup efforts that followed.

Railroad operations began in 1883 in the area that later became Livingston, case documents state. BNSF and its predecessors operated the facility until about 1987, and cleanup efforts began in the late 1980s.

"Considering the total amount of diesel fuel and solvents used as part of the operations of the rail yard, the amount of diesel fuel and solvents released into the ground and groundwater is indicative of minor spills and releases and is consistent with BNSF handling these materials with reasonable care, in conformance with standard industry customs and practices, and in accordance with applicable law," BNSF contends in case documents.

The plume migrated to nearby properties despite BNSF's best efforts to clean up and contain the contamination, BNSF contends. The company has spent $51 million so far on cleanup at the rail yard, according to the documents.

The plaintiffs in the suit seek punitive damages in addition to their request that the pollution be cleaned up.

The trial will be held in three parts, with a 12-person jury determining first whether BNSF polluted and whether the pollutants migrated beneath plaintiffs' properties. If BNSF polluted, the jury will determine during the first part of the trial what BNSF should pay to clean up the pollution and what compensation the company owes property owners.

If the jury decides in plaintiffs' favor during the first part, the second part of the trial will decide whether punitive damages should be awarded to plaintiffs in order to punish BNSF for their conduct, court documents state.

The third part of the trial would determine an amount for the punitive damages.

A 1980s trial regarding BNSF pollution at a landfill Park County owns east of Livingston resulted in the company paying the county $15 million.

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Information from: Livingston Enterprise, http://www.livingstonenterprise.com