BNSF suing Kootenai County over new regulations

BNSF is suing Kootenai County, Idaho, over new regulations proposed for the railroad's Hauser diesel refueling depot, the Spokesman-Review reports.

The railroad – which
refuels an average of 30 trains at the depot daily – says that operations at
the site are governed by federal transportation law and that counties lack the
ability to impose their own rules.

"Kootenai County does not
have the authority to regulate freight railroad facilities or operations that
are part of the interstate rail transportation system," according to the
lawsuit, which was filed in U.S. District Court in Coeur d’Alene last week.

The fueling depot lies
over the Spokane Valley-Rathdrum Prairie Aquifer, which provides drinking water
for more than 500,000 of the region’s residents. BNSF is disputing the county’s
authority to require additional aquifer protections, which railroad officials said
aren’t needed.

Last year, the county
conducted a five-year review of the Hauser depot’s operations, said Gus
Melonas, BNSF spokesman. The review determined that the site was in compliance
with the terms of a conditional use permit voluntarily negotiated by the
railroad and Kootenai County in 2000, Melonas noted.

The litigation revolves
around whether Kootenai County has the authority to amend the conditional use
permit. County commissioners have asked for several changes. Commissioners
want BNSF to pay for an Idaho Department of Environmental Quality staff
employee assigned to aquifer protection for as long as the depot is in
operation. The original agreement had a 10-year limit.

Commissioners also asked
for changes to the section determining when the depot would shut down in the
event of a leak, and new requirements for annual monitoring of test wells. A
public hearing on the proposed changes is scheduled for Dec. 2.

In the lawsuit, BNSF’s
attorneys said that the railroad had voluntarily agreed to the 33 conditions in
the original permit. Federal law pre-empts the county’s ability to amend
existing conditions or impose new ones, the suit claims.

BNSF opened the
high-speed refueling depot in September 2004. Within six months, a series of
leaks was discovered at the facility, with causes including crushed drainage
pipes and thousands of feet of cracks in the concrete refueling platform. A
state judge shut down the depot for 74 days until repairs could be made.

BNSF blamed the problems
on shoddy construction practices and sued its contractors. Melonas said the
depot has been problem-free since it reopened. The Hauser depot is an important
stop for freight trains that carry goods between Northwest ports and markets in
the Midwest and farther east, he added. Each of the trains that stop at
the Hauser depot has three locomotives, which each consume up to 4,000 gallons
of diesel fuel. Trains can be refueled and serviced in as little as a half-hour.

The Hauser depot
consolidated refueling operations for the railroad, which used to take place in
Seattle, Pasco and Vancouver, Wash. In Seattle, refueling freight trains
sometimes took as long as eight hours.

Kootenai County Prosecutor
Barry McHugh had no immediate comment on the lawsuit. He said he would be
talking to the commissioners about how to respond.