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Still Closed 

by Kevin Taylor

How many cases of bottled water can the average freight train haul to a community where drinking water has been fouled by railroad locomotive fuel?

We may never know. A bizarre run of testimony on "fun facts about freight trains" in a Coeur d'Alene courtroom ended Monday just shy of the drinking water question as Idaho district court Judge Charles Hosack tried to determine whether the Burlington Northern Santa Fe Railway's refueling depot is fit to reopen.

It is, insisted Coeur d'Alene attorney Rusty Robnett for BNSF.

It is not, testified hydrogeologist Gary Stevens, of the Idaho Department of Environmental Quality.

Here's a typical exchange in their hour of jousting on the witness stand:

ROBNETT: So, the leak detection system did exactly what it was supposed to do, right?

STEVENS: Leak detection systems are designed to detect leaks before they impact the environment. Unfortunately, in this case, it detected a leak at the platform but did not prevent a release.

The $42 million depot, with storage for a half-million gallons of diesel fuel, was built with three layers of leak containment 160 feet above the Spokane area's sole source of drinking water -- the aquifer. It was built despite heavy grassroots opposition, driven by fear that it could create a potential catastrophe for the aquifer that serves 500,000 people.

A series of embarrassing leaks and construction flaws were discovered at BNSF's Hauser Mainline Refueling Depot last winter, prompting Hosack to issue an emergency order to shut the facility down as a health threat on Feb. 23.

Idaho regulators have documented that diesel fuel and wastewater tinged with diesel have reached the aquifer, though not in amounts to make drinkers sick. The depot had opened only months earlier, hailed as "state-of-the-art" and "leakproof" by railroad and construction officials.

But Monday's court hearing on lifting the restraining order -- already delayed several times as BN-hired experts have worked to redesign and rebuild the depot -- was delayed yet again. Hosack had just announced a short "stretch-your-legs" break at 1:45 pm, with attorneys to begin closing arguments right afterwards.

Instead, what was intended as "15 or 20 minutes" of possible settlement talks during that break turned into two hours of intense discussion, Idaho Deputy AG Curt Fransen said.

"There are risks for both sides if the decision is made by a judge. I think both sides would like to control their fates a little more," said Fransen, who is assisting Deputy Attorney General Garrick Baxter on the case.

DEQ, Fransen said, wants more time to review all the test results taken at the depot during the last two months. The agency wants the railroad to agree to enforceable leak-detection and action plans instead of abiding by the "gentleman's agreement" previously in place. The agency also wants many of the wells dug during the last two months to remain in use as leak detectors.

The railroad, which has claimed nearly $20 million in losses and expenses since the depot was shut down, wants the refueling facility open as soon as possible. Both sides told the judge they hope to reach an agreement on re-opening the depot in a week, and they'll appear before Hosack again on Monday morning, May 9.

Burlington Northern tried to bring out the violins early in Monday's hearing by showing just what sort of a loss people hereabouts suffer without freight trains.

Attorney Rob Jenkins was brought from Washington, D.C., Monday to lay the groundwork for an argument that Idaho has no jurisdiction over a transcontinental railroad. Jenkins led BNSF's Spokane-area terminal supervisor Maxine Timberman through a scripted Q and A about what freight trains carry and why we need to keep them rolling. Timberman testified that the loss of the Hauser refueling depot keeps seven to 12 freights per day off the tracks to refuel at other, less-efficient depots.

"How many loaves of bread are there in an average 80-car freight train?" Jenkins asked.

"There are about 30 million loaves," Timberman replied. She also said the average train could carry coal to heat 9,000 houses for a year.

They did not estimate how much drinking water could be hauled, however, but the question is germane because BNSF is required to ship bottled water to the area in event of a catastrophic spill over the aquifer.

Publication date: 05/05/05

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