Does anybody want any water?" Steve Millsap, Burlington Northern-Santa Fe Railway's assistant vice president for engineering, asked that question Monday afternoon as assembled media -- including a CBS news crew -- were donning hardhats, safety goggles and reflective safety belts prior to a rare tour of the railroad's locomotive refueling depot at Hauser. He didn't seem to understand why there was a sudden pause.
"What water?" someone asked.
The depot, which refuels, services and inspects up to 30 freight trains a day, had just reopened Monday after reaching an agreement with Idaho environmental regulators. It had been shut down as a potential public health threat for nearly three months after a cracked pipe leaked an estimated 2,000 to 3,000 gallons of industrial wastewater tinged with diesel into the Spokane area's primary source of drinking water.
After the leak was discovered in December -- at a facility hailed as "virtually leak-proof" when it opened last fall -- depot workers and Idaho environmental inspectors had discovered a range of other flaws: cracked concrete, leaky joints in the underground plastic liners and a clunky monitoring system that didn't allow precise snapshots of what was happening down in the dirt.
BNSF, hounded by its own embarrassment and the Idaho Department of Environmental Quality, has spent nearly $10 million since late February to redesign and repair the three layers of leak prevention and to beef up the leak detection systems at the depot.
Reading a statement at the Hauser fueling station on Monday, Millsap bluntly blamed the leaks on "faulty engineering and construction" and added that the railroad is suing the engineering and construction firms, including lead contractor Lydig Construction of Spokane.
But, he added, BNSF "is very pleased that there has never been any damage to the aquifer that affected the quality of drinking water as a result of this unfortunate situation. We believe the leak detection, monitoring and safety equipment ... did its job -- it protected our drinking water."
Still, the water Millsap handed out didn't come from the tap. It came in cute little bottles "purified," the bottle cap noted, "by carbon and micron filtration, reverse osmosis and ozonization." Good stuff.
Everybody else's drinking water in the Spokane Valley-Rathdrum Prairie Aquifer, just 160 feet below Millsap's shoes and the storage tanks for 500,000 gallons of diesel, doesn't come with such quadruple-guaranteed purity.
And when Idaho District Court Judge Charles Hosack announced in a Coeur d'Alene courtroom that he was lifting the temporary restraining order because the railroad and DEQ had reached a deal prior to the hearing, his words were greeted with cries of dismay from people hoping the depot would be permanently shut down and moved off the aquifer.
But Hosack's hands were tied, says a knowledgeable courthouse observer. "It's all moot," the source said. The judge "could order a hearing on a preliminary injunction, but when the parties come in and say they've agreed to lift the TRO, and that they further agree there are no other issues, there is really nothing for the court to do."
Opponents of the depot may have another chance, albeit a slim one.
Kootenai County Commissioner Gus Johnson says the conditional-use permit the county granted to BNSF includes a condition saying the county must approve for the depot to reopen.
But nobody else seemed to notice. "We do believe we have the permission of the county," Millsap said at Hauser, announcing the first freight would be headed in for refueling in a matter of hours.
Johnson plans to seek a public hearing on reopening the depot but must convince at least one of the other two commissioners, Rick Currie and Katie Brodie, when they meet today, May 12.
"I see no problem with a public hearing," Brodie says, "but I wonder if we would be raising expectations [on a shutdown] to levels we cannot fulfill. I don't feel we have the teeth to stop this."
Johnson says that John Cafferty, one of the county's civil attorneys, told him "he doesn't think we have anything to hang our hat on," when it comes to authority over a transcontinental railroad.
Still, Johnson says, "We don't need a Love Canal in North Idaho. When they first opened out there, I went out and looked at the facility and it looked good. It was like looking at a new car. But even a new Corvair looked good -- and they were leakers, too."
Citing the leaks and flaws that were revealed six months after the Hauser depot opened, Johnson says, "I think the community got sold a bill of goods." Referring to the recent re-engineering and repairs, he says, "This was major reconstruction. They redid the whole thing. That tells me there was no oversight the first time through.
"I would like them to shut down and move, but the odds probably are not that good," Johnson says, adding that he is willing to push the issue of authority over a railroad to a federal level because Hauser -- both in water quality threats and freight movement -- affects more people in Washington state than Idaho.
"It is so much bigger than this little desk here, but it's got to start somewhere," he says.
The agreement between BNSF and Idaho's Department of Environmental Quality was reached after a week of intense negotiation, says Curt Fransen, a deputy attorney general in Coeur d'Alene, who worked with deputy AG Garrick Baxter on the case.
There are actually two agreements, Fransen says. One, a formal consent order, decrees the railroad must replace the single-walled wastewater piping (the cracked single-walled pipe had merely been replaced with more of the same) with double-walled pipe that contains a continuous monitoring system.
"There is very little question this was a violation of Idaho law and there was contamination" of the aquifer, Fransen says.
But the main watchdog agreement -- dealing with ongoing inspection and monitoring -- is more like a contract, Fransen says; it is not directly enforceable under the Idaho Code and it is not part of the court file.
"That was one of the struggles with the railroad. They claimed pre-emption [that they answer to federal authority, not local] and they didn't want to give that up," Fransen says. "We [DEQ] were afraid to be back in the same position we were in in the fall -- that they would promise to do all this stuff" without any enforceable oversight.
The agreement is a good one, agree Fransen and DEQ's depot inspector Marc Kalbaugh.
The contract comes with detailed plans for inspecting the concrete, the piping, the underground liners, and it has more thorough leak-detection systems and many more test wells. There are also provisions for rigorous record-keeping and inspections by the railroad and independently by DEQ.
Kalbaugh says the agreement means any leaks will be more quickly detected and that changes made at Hauser will allow for removal of any leaked liquids before they breach containment layers and head for the drinking water.
Fransen says the agreement is better than a consent order.
"Consent orders usually go away," when the specific conditions are met, Fransen says. "This agreement stays in place."
But will this round of promises that systems are in place to protect the aquifer be different than the last round of promises?
"That's going to depend on BN to do what they say they are going to do and stay on top of it," Fransen says. "And DEQ needs to do the same." n
Publication date: 05/12/05