News

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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An Artist's Universe

10:00am

View painter and mixed-media master David Syre’s latest installation, “An Artist’s Universe,” hanging throughout the corridors, lobby and dining room of Hotel Bellwether and the Lighthouse…

McKnight and DeLacy

10:00am

Mixed-media works by Bainbridge Island-based artist Aaron McKnight and sculptures by Marceil DeLacy can be viewed from 10am-5pm Fridays through Sundays through April 25 in Edison at Smith &…

Art-iversary Exhibit

10:00am

From 10am-5:30pm Mondays through Saturdays through April 30, celebrate 20 years of ownership for Sheri Wright of Fourth Corner Frames, 311 W. Holly St. A wide variety of works are for sale as…

The Work of Jesus Guillén

11:00am

“The Work of Jesus Guillen: An Artistic Legacy of Love and Courage” can be seen from 11am-4pm Fridays through Sundays through May 2 in La Conner at the Skagit County Historical Museum, 501 S.…

Recycled Art & Resource Expo

11:00am

A “Recycled Art & Resource Expo” can be visited from 11am-4pm Tuesdays through Saturdays through April 30 at Allied Arts, 1418 Cornwall Ave. In addition to providing a platform for…

Rock, Paper, Paint

11:00am

“Rock, Paper, Paint” shows from 11am-4pm Fridays through Sundays through April 25 in Edison at i.e. gallery, 5800 Cains Court. The exhibit features new “drop” oil paintings by Allen Moe, rock…

Spring Into Art

11:00am

View works by Stanwood-Camano Arts Guild members from 11am-5pm Wed.-Sat. in Stanwood at A Guilded Gallery, 8700 271st St. NW. A “Spring Into Art” regional juried art show can be seen through…

Briggs Shore at Good Earth

11:00am

Vases, planters and drinking vessels by Briggs Shore will be on display and for sale from 11am-5pm Mondays through Saturdays (closed Tuesdays) and 12pm-5pm Sundays through April 30 at Good…

Whatcom Art Market

11:00am

Works by as many as 45 Whatcom Art Guild members can be viewed from 11am-5pm Tuesdays through Sundays at Whatcom Art Market, 1103 11th St.

Origins and Evolutions Exhibit

11:00am

“Origins and Evolutions: Five Generations” can be seen from 11am-4pm Tues.-Thurs., and by appointment, at least through May 22 at Gallery Syre, 465 Stuart Rd. The show gathers together…

Tulip Poster Artists, Past and Present

11:00am

The fifth annual “Tulip Poster Artists, Past and Present” exhibit can be seen from 11am-5pm Wednesday through Sunday through May 2 in Anacortes at the Scott Milo Gallery, 420 Commercial Ave.…

Sculpture Northwest Exhibit

11:00am

The works of 15 Sculpture Northwest artists can be viewed both indoors and out from 11am-5pm Fridays through Sundays (and by appointment) through April 23 on Camano Island at Matzke Fine Art…

Scatter Sunshine

11:00am

From 11am-5pm Wednesday through Sunday, visit La Conner’s Pacific Northwest Quilt & Fiber Arts Museum, 703 S. Second St. Currently on display are “Scatter Sunshine: La Conner in Bloom…

Spring Juried Exhibit and More

12:00pm

A “Spring Juried Exhibit,” “Winter Textile Explorations,” Lisa McShane’s “A Decade of Landscapes,” and Ron Pattern’s “The Seasonal Forest” can be viewed from 12pm-4:30pm Thursdays through…

Seeds of Culture at Whatcom Museum

12:00pm

View “Seeds of Culture: The Portraits and Voices of Native American Women,” “Fluid Formations: The Legacy of Glass in the Pacific Northwest,” “Jac Trautman: The Specter of the Indigenous,”…

A Road Well Traveled

12:00pm

“Max Benjamin: A Road Well Traveled” can be seen from 12pm-4pm Thursdays through Sundays at La Conner’s Museum of Northwest Art, 121 First St. The solo exhibit featuring the work of the…

An Artist's Universe

10:00am

View painter and mixed-media master David Syre’s latest installation, “An Artist’s Universe,” hanging throughout the corridors, lobby and dining room of Hotel Bellwether and the Lighthouse…

McKnight and DeLacy

10:00am

Mixed-media works by Bainbridge Island-based artist Aaron McKnight and sculptures by Marceil DeLacy can be viewed from 10am-5pm Fridays through Sundays through April 25 in Edison at Smith &…

Briggs Shore at Good Earth

11:00am

Vases, planters and drinking vessels by Briggs Shore will be on display and for sale from 11am-5pm Mondays through Saturdays (closed Tuesdays) and 12pm-5pm Sundays through April 30 at Good…

Whatcom Art Market

11:00am

Works by as many as 45 Whatcom Art Guild members can be viewed from 11am-5pm Tuesdays through Sundays at Whatcom Art Market, 1103 11th St.

Tulip Poster Artists, Past and Present

11:00am

The fifth annual “Tulip Poster Artists, Past and Present” exhibit can be seen from 11am-5pm Wednesday through Sunday through May 2 in Anacortes at the Scott Milo Gallery, 420 Commercial Ave.…

Scatter Sunshine

11:00am

From 11am-5pm Wednesday through Sunday, visit La Conner’s Pacific Northwest Quilt & Fiber Arts Museum, 703 S. Second St. Currently on display are “Scatter Sunshine: La Conner in Bloom…

The Work of Jesus Guillén

11:00am

“The Work of Jesus Guillen: An Artistic Legacy of Love and Courage” can be seen from 11am-4pm Fridays through Sundays through May 2 in La Conner at the Skagit County Historical Museum, 501 S.…

Rock, Paper, Paint

11:00am

“Rock, Paper, Paint” shows from 11am-4pm Fridays through Sundays through April 25 in Edison at i.e. gallery, 5800 Cains Court. The exhibit features new “drop” oil paintings by Allen Moe, rock…

Sculpture Northwest Exhibit

11:00am

The works of 15 Sculpture Northwest artists can be viewed both indoors and out from 11am-5pm Fridays through Sundays (and by appointment) through April 23 on Camano Island at Matzke Fine Art…

A Road Well Traveled

12:00pm

“Max Benjamin: A Road Well Traveled” can be seen from 12pm-4pm Thursdays through Sundays at La Conner’s Museum of Northwest Art, 121 First St. The solo exhibit featuring the work of the…

Seeds of Culture at Whatcom Museum

12:00pm

View “Seeds of Culture: The Portraits and Voices of Native American Women,” “Fluid Formations: The Legacy of Glass in the Pacific Northwest,” “Jac Trautman: The Specter of the Indigenous,”…

Art-iversary Exhibit

10:00am

From 10am-5:30pm Mondays through Saturdays through April 30, celebrate 20 years of ownership for Sheri Wright of Fourth Corner Frames, 311 W. Holly St. A wide variety of works are for sale as…

Seeds of Culture at Whatcom Museum

12:00pm

View “Seeds of Culture: The Portraits and Voices of Native American Women,” “Fluid Formations: The Legacy of Glass in the Pacific Northwest,” “Jac Trautman: The Specter of the Indigenous,”…