Whitefish residents worry about BNSF offers

By MICHAEL JAMISON of the Missoulian

WHITEFISH - The Burlington Northern Santa Fe railroad company has been quietly knocking on doors in a trendy Whitefish neighborhood, offering to buy homes and businesses that aren't for sale, while hinting that the ground beneath might be contaminated.

"They're creating a lot of fear, but not providing many answers," said Henry Roberts, whose Internet business owns a building in the neighborhood. "The guy shows up with an offer, suggests there may be something toxic underground, but then won't admit anything, won't say anything specific."

The immediate problem, Roberts said, isn't pollution. "The problem is secrecy."

It's no secret that BNSF owns a whole lot of toxic liability around the state. Nearly two dozen BNSF sites are on Montana's priority cleanup list, poisoned by spilled diesel fuel and chemical solvents.

Historically, the emphasis has been on the diesel, but in recent years neighborhoods have found volatile organic compounds - trichloroethylene, dichloroethylene, vinyl chloride - in their soils. Those chemicals can taint groundwater, and vapors from the chlorides can poison the homes and businesses above.

Problem is, "we have no budget and no staffing to do the tests ourselves," said Mary Ann Dunwell, spokesperson for the state Department of Environmental Quality. Her agency, she said, relies on the railroaders themselves to do the testing, which often focuses on company property and has not always proved sufficient for off-site neighbors.

It's long been known that the Whitefish railyard is contaminated - diesel in the aquifer, chlorinated solvents in the groundwater, metals in the soil - but according to DEQ project manager Kate Fry, "there's nothing to suggest there's any contamination in the neighborhood BNSF wants to buy, according to the data we have."

Except, of course, the suggestions recently made by the company to local landowners.

The data DEQ relies upon was collected by the company, Fry said, just as it was in Havre, where diesel contamination was discovered in 1985 at a BNSF fueling facility. There, neighbors initiated their own off-site tests and found a plume of contamination that BNSF had failed to locate. They sued, and the company began buying and razing dozens of houses.

Yet despite that history and BNSF's hints to Whitefish landowners, "we cannot require them to do additional testing without a strong suspicion of contamination," Fry said, something based in science.

But any scientific evaluation would have to be conducted by the neighbors, because BNSF cannot be compelled, and DEQ, as Fry said, "has neither the staff nor the resources, and that kind of testing costs a lot of money. Right now, we have no way of knowing the whole story."

In February, a state court ordered BNSF to pay the cleanup bills on a site near Kalispell, even though the company does not currently own the property.

And in 2007, the state Supreme Court cleared the way for Montana residents to sue BNSF for cleanup, and not just to the "health-based" threshold that DEQ uses but to the land's "original state." That same ruling allows residents to capture the full cleanup cost, which often is well beyond the value of the property.

"The railroad's financial exposure," DEQ attorney Bill Kirley said, "increased substantially with that ruling."

"Burlington Northern could be on the hook for a million-dollar cleanup on a $100,000 property," added Whitefish City Attorney John Phelps. "If I were them, I'd be buying properties, too."

The company, for its part, remains tight-lipped. In a March 11 letter to DEQ, BNSF acknowledged it was contacting property owners "to discuss confidential economic options," but refused to say which properties had been approached or why.

And in a written response to questions posed by the Missoulian, BNSF spokesman Gus Melonas said only that "there is nothing that has materially changed at the site that has lead to these (property sale) discussions." He added that BNSF "has merely determined that it may be constructive and helpful for everyone to discuss various economic options related to property in the area."

"So then why raise the issue of contamination?" asked Craig Prather, who owns a bicycle business on the edge of Whitefish's railroad district neighborhood. "Why start buying properties?"

"People are scared," Prather added. "They're jumping ship and selling out before we even know what's going on. This is ridiculous. This isn't the 1800s. Is it dirty or not? I want the answer to that question. If BNSF won't answer it, then the state or the city should. If there's bad dirt, fine, it needs to be cleaned up. If there's not, then get out of our neighborhood."

The railroad district neighborhood is a key to Whitefish's economic future, according to City Councilman John Muhlfeld, and has been identified as the place for future downtown growth. In fact, it was at the same City Council meeting where residents first complained of BNSF's inquiries that the council approved its long-awaited growth plan, naming the railroad district as the spot for commercial and residential investment.

"BNSF was silent through that process," said local lawyer and Councilman Frank Sweeney. "Why didn't they step up then? What's changed now? The railroad has not been very forthcoming on these points."

As far as City Attorney Phelps is concerned, "they wouldn't be buying properties unless they knew, or at least suspected, there was contamination."

The railroad district was intended to be "our finest up-and-coming neighborhood," said Jan Metzmaker, whose regional tourism offices are housed in a brand-new building there. She doesn't know for sure if her landlord has accepted the BNSF offer, "but he did tell us we needed to start looking for a new office."

If the newly gentrified neighborhood starts to sell, she said, and buildings are razed, "it'll be just like a domino effect, right down the line."

No one, Metzmaker said, wants to be last in line to sell, because by then property values will be shot. "It's all about scare tactics so far," she said. "It's all hints, and no facts, but it's enough to divide and conquer. We're going to be looking at a dead zone in the middle of downtown, and we don't even know if it's actually polluted."

The city, Muhlfeld said, likely "will not wait to be invited to the table on this," but rather will invite itself as an intermediary. Beyond that, however, no one knows how state or local government might help. Like DEQ, the city has few resources for water and soil testing, and no real leverage to compel the railroaders.

"Bottom line," Muhlfeld said, "is people want answers, and I don't think that's too much to ask. But right now, we don't know how to get those answers from BNSF."

In Havre, it was the collective neighborhood, finally, that got together to do the testing and file the lawsuit; but so far that kind of cooperation hasn't emerged in Whitefish. Perhaps that's because some believe it's better not to know, better to take the deal while it's on the table, before you have a known plume beneath you.

Prather, however, is not one of those people. He's staying put, looking for a second opinion.

"I'm not a lawyer," he said. "I'm a bike mechanic who happens to own a little piece of property that was supposed to be my nest egg."

"There is one thing I do know, though: This is our town. It's not Burlington Northern's."