BNSF suing Kootenai County over new regulations

BNSF Railway Co. is suing Kootenai County over new regulations proposed for the railroad’s Hauser diesel refueling depot.

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.

“We move everything from A to Z through there,” Melonas said of the Hauser depot.

The freight trains carry “apples, automobiles, lumber … wheat and even elephants,” he said. “We have a contract with the Barnum & Bailey Circus.”

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.