Schweitzer proposes a new fix for an old mess

If you live on or near any of the sites scattered across Montana that have been polluted by the Burlington Northern-Santa Fe Railroad (BNSF), Gov. Brian Schweitzer’s recent statements should have you kicking up your heels and dancing in the streets. Governor after governor has found it far easier to bow to this monopolistic corporation than to fight for Montanans, but that came to an end last week with Schweitzer’s declaration that “Enough is enough.”

Citing the authority granted the state under the decades-old “Comprehensive Environmental Cleanup and Recovery Act (CECRA),” Schweitzer came out swinging, saying that BNSF has had 20 years in which to clean up the horrific groundwater pollution in Livingston, and now the state will undertake the cleanup and charge the rail company for the costs.

“It is not acceptable for BNSF to leak diesel into our drinking water,” Schweitzer said. “BNSF is responsible for nearly one-tenth of the sites on the state’s Superfund list. They have been dragging their feet for nearly two decades even though in a meeting only two months ago they told DEQ [Department of Environmental Quality] that they have ‘an open checkbook’ for addressing sites in Montana. It is time for them to follow through on their commitment to clean up their mess.”

Indeed it is.

The original CECRA bill, which is better known as the state’s mini-Superfund Act, made it through a tough House Natural Resource Committee in 1985 thanks to one fact—nearly all Montana legislators have at least one toxic site in their district that, while dangerous to human health and/or the environment, will not qualify for federal Superfund listing. The choice was simple: either devise a method to get the cleanups done or live with enduring toxic pollution at nearly 300 sites statewide.

The Legislature made the decision to go with the cleanups and the law was tailored after the then-new federal Superfund Act, which required those responsible for the pollution to clean it up—or gave the feds the legal right to clean it up using federal dollars and then turn around and charge the responsible parties up to three times the cost of the cleanup. The “triple costs” clause proved very effective in getting those responsible for the pollution to pony up for the cleanups and has resulted in a recovering Clark Fork River and the upcoming removal of the Milltown Dam, among other signs of progress.

Montana’s mini-Superfund contains a similar clause, although the state’s allowable charges are limited to twice the cost of the cleanup. While most would think such an incentive would push cleanups right along, the reality has been disappointingly different—not because of flaws in the law, but due to a decade and a half of gutless governors who would rather grovel to corporate lobbyists and lawyers than serve the interests of the citizens who elected them.

Gov. Ted Schwinden, for all his “straight talk, good people” jive, filed a lawsuit against BNSF only in his last weeks in office. He was replaced by Gov. Stan Stephens in 1989, who took a trip to Livingston to see what all the fuss was about. I remember the horrified look on his face when the tech people pulled a tube from a test well right in the middle of the city that was covered in dripping black, oily sludge—a combination of the myriad contaminants, from diesel fuel to industrial solvents, that the railroad used over its century of operation in its locomotive rebuilding shop there. That toxic sludge, which was only a few yards beneath the surface, shocked Stephens, but what he did about it—or didn’t do—was more shocking yet.

Instead of immediately moving forward on the cleanup, Stephens resorted to the kind of backroom deal-making that is now so well identified with Republican politicians—but he got caught out by Livingston Representative Bob Raney and MEIC’s Jim Jensen, who discovered the secret meetings Stephens was having with BN’s lawyers and lobbyists. Those meetings came to an abrupt end and BN went back to its long-term “cleanup plan”—which seems to have been to pay its lawyers and lobbyists to delay extremely costly groundwater cleanup actions until such time as either the political or legal climate shifted to take them off the hook.

And so it went, with minimal effort expended throughout Racicot’s two terms in office, even though the former Attorney General certainly must have known the state had the legal right to move on the cleanup and charge BN for getting it done. Not to imply that he was rewarded for his complicity while in office, but Racicot now sits on BNSF’s Board of Directors. Judy Martz was as torpid as any of her predecessors—but then again, you wouldn’t expect the self-proclaimed “lap dog of industry” to bite the hand that feeds her.

Now, however, it appears that the worm has finally turned—spurred in no small part by the governor’s anger at BNSF’s shipping rates for Montana’s grain growers, which is about twice what it charges other states to ship to the Pacific Northwest.

What follows are excerpts from DEQ Director Richard Opper’s strong letter to Schweitzer prior to the governor’s announcement:

“As you know, the BNSF Railway Company (BNSF) is a major polluter in the State of Montana…Most of these sites have been listed since the mid-1980s and none of them have been adequately remediated in the 25 years since the pollution issues were identified…these sites have languished while BNSF has engaged in legal and technical squabbles that have delayed clean up activities…BNSF has impeded progress at this and other sites…As a result of BNSF’s obstreperous behavior, DEQ feels that any further negotiations with BNSF related to the Livingston site would be a waste of valuable state time and resources.”

Couldn’t have said it better myself. Go get ’em, Gov. As you said, “enough is enough”—and we’ve been waiting too long already.

When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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