Top court ruling may affect railroad liability

A 2006 Montana Supreme Court decision involving Texaco and the Sunburst School District is the likely impetus for BNSF Railway Co.'s pursuit to buy property on the fringes of its railroad fueling sites across the state.

In that landmark case, the Sunburst School District and landowners in that oilfield community north of Shelby sued Texaco for damages caused by migrating benzene pollution. The Supreme Court upheld a District Court ruling that awarded restoration damages exceeding the value of the damaged property.

Texaco, which operated a gas refinery outside Sunburst from 1924 to 1961, had a long history of contaminating soil in that area.

In fact, the Supreme Court ruling noted that the contamination came to Texaco's attention as early as 1955 when escaping fumes from the underground plume caused a house in Sunburst to explode. That accident forced the oil company to conduct a partial cleanup, but a significant amount of pollution remained.

"This case has the same implications' for the Whitefish rail yard, where contamination from the railroad has been well-documented, Whitefish City Attorney John Phelps said. "It would scare the heck out of BNSF."

Within a few months of the state Supreme Court ruling, Phelps said the city of Whitefish was contacted by two different groups of attorneys wanting to represent them in any future litigation.

With the high court's declaration that a company causing pollution is liable for cleanup that surpasses even the state's requirements and requires restoration to the land's original state, BNSF is 'sitting on billions [of dollars' of potential liability," Phelps said.

In essence, BNSF could be responsible for a million-dollar cleanup on a property worth $100,000.

Buying property that could be affected is a safeguard and a practical way to lessen that liability, Phelps said.