Crossways with the Railroads

Whatcom County challenges BNSF, with predictable results

Wednesday, December 9, 2015

Before Whatcom County citizens had a chance to speak their minds about closing Valley View Road, state and federal agencies appeared to have settled the matter.

It now seems likely that the north county road connecting town to country since the 1800s will be closed, to make way for a Burlington Northern Santa Fe (BNSF) railroad siding for oil trains and other freight.

Citizens spoke passionately at a state Utilities and Transportation Commission (UTC) hearing in the County Council chambers last week, lamenting the proposed road closure and suspecting the motives behind it. Too late, it would seem. Actions by the U.S. Army Corps of Engineers and the state Department of Ecology have taken away the county’s best legal argument.

The disagreement between Whatcom County and the railroad began last winter, when BNSF petitioned the UTC for permission to close Valley View by shutting down the road at the rail crossing near Arnie Road, about a half-mile south of Portal Way and Birch Bay Square. BNSF wants to extend a rail siding through that crossing, to store trains “for the good of several customers… to allow trains to meet and pass without blocking the mainline” according to a BNSF statement issued this week. It’s needed, the petition says, to accommodate all current traffic, including passenger trains.

“It is not for the good of any single customer,” BNSF spokesperson Courtney Wallace said.

County officials suspect that’s exactly what it’s for.

Whatcom County transportation engineer Joe Rutan views the road closure and the new siding as part of BNSF’s plan for delivering coal to the proposed Gateway Pacific export terminal at Cherry Point. As such, it would be included in the broad Environmental Impact Statement (EIS) that a federal/state/county team is currently preparing. Preemptive removal of a crossing at Valley View Road would reduce the project’s costs on the environment and the human community nearby.

The county filed a formal objection to the road closure, asking the UTC to investigate and take public comment. But before the county and its constituents could make their case to the UTC, the Army Corps announced its own finding.

The Valley View Road closure and rail siding are stand-alone actions, the Corps said, and not related to the GPT. The Corps deciders took BNSF at its word that the proposed siding will serve the oil refineries and general freight customers, but not the proposed coal port.

Therefore, no requirement for an EIS. The railroad gets an easy pass to approval: an environmental checklist (already done); a public hearing; a negotiable price for disturbing a nearby wetland. Then, bargaining with the county over who pays for turnarounds and other road changes that will be needed, once Valley View Road is closed.

The history of such negotiations would indicate county taxpayers will pay for those fixes, never mind that the road was there for decades before the first train crossed it.

If the Corps’ action hadn’t decided the issue, an announcement last month from the state Dept. of Ecology surely would have. Ecology issued its own Declaration of Non-Significance (DNS) regarding the road closure and subsequent rail siding construction. A DNS means, in effect, that the project won’t do any significant harm, and whatever damage it causes can be covered by a series of relatively small fixes.

A number of citizen skeptics at last week’s hearing described the Valley View project as piecemealing. They contend that BNSF is hiding its overall rail plan for servicing the coal terminal—showing one small sliver at a time without showing what’s really about to happen.

The State Environmental Policy Act explicitly forbids piecemealing, under the more elegant term “inappropriate phasing of review.”

Joe Rutan raised the issue in filing Whatcom County’s opposition to closing Valley View Road, last spring.

“We’re not accusing them of piecemealing,” Rutan said. “But we’re concerned they might be in conflict with SEPA for inappropriate phasing of review.”

In a 2014 letter to the City of Bellingham, BNSF promised that its plan for moving coal to Cherry Point would not require eclipsing vehicle access to Boulevard Park. A letter to the mayor and City Council said rail expansions would be better located, “in areas other than Bellingham.” Meaning, it would seem, at the Valley View Road crossing.

And in what other locations? Rutan says the County has no way of knowing.

The railroad company still hasn’t revealed its overall plan, and Rutan says that gets in the way of the County’s ability to follow its own plans.

“If we approve this project, when will we be asked to approve another crossing closure, and then another?”

Whatcom County Executive Jack Louws, usually affable, has been outspoken on this issue.

“The railroad’s actions make it challenging to citizens in the Valley View Road area,” he commented, “but also to our being able to manage our entire county road system. I would love to find out what the BNSF system is going to look like, then we could say O.K., now we can invest in the right places.”

It wasn’t just the imminent road closure and its implications that had upset some of the commenters at last week’s public hearing. They protested that neither BNSF,  Ecology or the USACE are taking seriously the dangers of storing oil tank cars loaded with the highly volatile Bakken crude.

Anarinata Douglass of Bellingham told the hearing that the siding proposed at Valley View Road is “not a secure location,” for storing such dangerous cargo.

Dangerous enough, Charles Storrs of Bellingham said, “That they won’t tell cities and counties how much or where or how often they’re moving Bakken crude, but they will park it in our neighbors’ backyards.”

Other commenters urged that the Bakken oil be stored on the sites of the refineries wishing to process it.

Notably, in a separate matter before the UTC this week, the commission announced a final settlement with BNSF that calls for fining the railroad $71,000 for failing to report more than a dozen spills including Bakken crude within the time required by state regulations. One of the unreported spills occurred at the BP refinery, where more than 1,600 gallons of Bakken crude that leaked from a tank car in November of last year. BNSF had argued that it was not responsible for reporting the leak because it was in the BP refinery yard at not in the railroad’s custody.

Bakken crude has been the stuff of spectacular explosions—10 in the United States and Canada since July 6, 2013, when 47 people were killed in Lac Megantic, Quebec.

Whatcom County Planning and Development issued Declarations of Non-Significance for two refineries at Cherry Point, the BP and Phillips refineries’ oil-by-rail plans in 2012 and 2013. The ruling would permit one 100-car train per week at BP, and one every other week for Phillips.

The determination occurred before Lac Megantic, and before oil producers—prodded by federal regulators—revealed the true volatility of Bakken crude, a mixture of oil, ethane and propane that explodes at about the same temperature as gasoline. A recent Wall Street Journal report indicates a tank carload of Bakken crude carries the explosive potential of two million sticks of dynamite.

Still, in 2012 and 2013, a DNS issued by Whatcom County planners for the oil train sets at BP and Phillips caused little stir. Time and events created an interesting contrast to what took place in Skagit County last spring, when Shell Oil applied for permits to build its own rail system for bringing Bakken crude to its Anacortes refinery.

Skagit County Hearing Examiner Wick Dufford required an Environmental Impact Study of the Shell Oil project.

Shell went to court—and lost—trying to overturn the requirement for an EIS. The oil company’s attorney argued that the impact study amounted to regulation of a railroad—a federal arena where state and local governments are seldom allowed.

Skagit County Superior Court Judge Michael Rickert dismissed Shell’s case, highlighting sharp differences between regulating an oil shipment and studying the impacts of oil shipment. The public, he agreed, has a right to detailed information about those potential impacts.

The future of Valley View Road rests for now with Rayne Pearson, an administrative law judge with the UTC in Olympia.

Judge Pearson conducted the Bellingham hearing and will study the evidence gathered there, then announce her decision sometime in 2016.

If that decision allows the Valley View project, Whatcom County could appeal it to the full three-member UTC, but it’s unlikely that the commissioners would overrule their administrative law judge. Beyond that, the only available appeal would be to Superior Court.

Upon learning that Ecology had announced a DNS—a quick pathway for Burlington Northern to close the road and develop the siding without an environmental impact study—Pearson posed an interesting question of her staff, at last week’s hearing:

“Have we (the UTC) ever challenged a DNS?” she wanted to know.

Staff members looked at each other, shrugged and shook their heads.

“Not that we know of,” someone said.

The judge moved on to other topics, leaving advocates on both sides to ponder what the the question might indicate.

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