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How a call to the North Sound Baykeeper pollution hotline led to the $75,000 fine against BNSF

posted Sep 2, 2016, 3:22 PM by RE Sources for Sustainable Communities   [ updated Sep 7, 2016, 2:39 PM ]
By Lee FirstNorth Sound Baykeeper

In February 2014, I got a call from a South Fork Valley gentleman who said he was standing in front of Everybody’s Store in Van Zandt, WA. (Everybody’s Store is a charming general store and local landmark, famous for its impressive collection of organic groceries, cheeses, sausage, and imaginative merchandise since its inception in 1970. Located by a waterfall off the Van Zandt Dike, it attracts a variety of customers — from fishermen to kayakers, tourists, residents and farmers.)

The caller, an inveterate nature lover, says, “I’m in front of Everybody’s Store in Van Zandt, and there’s a bunch of new creosote-treated railroad ties in the water on the tracks in front of the store.” 

I wasn’t surprised – I’d seen piles of railroad ties along the siding in Bellingham a few days earlier. The caller sent a few photos, and I immediately took a look at them. According to the caller, there were dozens of railroad ties piled along the ditch. Some ties were in the water, where an oil sheen was already becoming evident. The water was flowing toward the south fork Nooksack River, less than a half mile away.

Like all members of the Waterkeeper Alliance, I offer and maintain a 24-hour pollution reporting hotline. It’s a job requirement, but I have to admit: I love stopping pollution. The North Sound Baykeeper pollution hotline number is (360) 220-0556.

Within an hour, I sent an online report to the Washington State Department of Ecology using the Environmental Incident Report Tracking Form, or ERTs. It’s easy, and anyone can do it, anytime. I’ve submitted over 1,500 ERTs since I’ve worked at RE Sources for Sustainable Communities. Once received, Ecology staff rate the incident for seriousness, and forward it to the appropriate agency, where it’s tracked in their reporting system.

Investigating the railroad ties

The next day I asked a favor from one of my best friends who flies a small airplane, to fly over the railroad tracks in Whatcom and Skagit counties and tell me where the piles of railroad ties along the tracks were located. He got right on it, and early the next day, he reported back with the scoop.

There were extensive piles of railroad ties in several areas on Chuckanut Drive, in Burlington, and a few other places. I went to investigate — one of my favorite things about my job. I found freshly treated creosote railroad ties, many partially submerged in water, and plenty of oily sheens. Along Chuckanut Bay there were hundreds, perhaps thousands, of freshly oiled ties partially in the water. The oily sheens were running into Chuckanut Bay, Bellingham Bay, and other places. I took photos, and submitted more ERTs.

Another place I observed problems was the railroad “switch yard” in downtown Bellingham, near the end of Cornwall Avenue, where piles of railroad ties sat right next to a wetland. These, too, were dripping with creosote, and surrounded by an oily sheen. The smell of creosote was overpowering. To make matters worse, it was raining, so the oily sheen was gushing into the wetland. I also noticed a fresh pile of gravel dumped into the wetland. Filling a wetland without a permit is a big time no-no. There was a scattering of heavy equipment with obvious leaks and drips. I took more pictures, and sent more ERTs.

Negative effects of creosote-treated wood

We’re concerned with creosote in the water because it’s toxic to aquatic life. Washington State has invested millions of dollars removing creosote-treated wood from marine and estuarine waters. What is it, exactly? Creosote is a general term covering coal tar creosote, coal tar, and coal tar pitch. It is widely used on railroad ties because it is a long-lasting wood preservative. Embryonic development of Pacific herring has been shown to be negatively affected by diffusible components of weathered creosote pilings. If you haven’t heard, herring are in trouble. 

Ecology issues a fine

I have a lot of respect for the staff at Ecology's Bellingham Field Office. They check out water quality problems, administer pollution permits, and many other tasks. They work hard, but often get bad press, and nobody is glad to see them when they show up. Most of the time, they take my reports seriously. Two weeks after submitting the ERTs for the railroad ties, I called to ask if they'd verified my concerns. They said they had been out to see all of them, and sent water samples to a lab to have them analyzed for creosote-related compounds. Afterwards, they submitted a lengthy Request for Enforcement Report and met with the director of Ecology and the Attorney General assigned to the agency.

About a year later, Ecology issued BNSF a penalty for $86,000 for water quality violations primarily caused by these incidents. BNSF appealed the fine, then met with Ecology and settled in order to avoid legal action. Under the terms of the settlement, BNSF agreed to pay $75,000, with $45,000 earmarked for a local restoration or remediation project in the south fork Nooksack River or the nearshore marine environment in Whatcom or Skagit counties. 

As part of the settlement, BNSF agreed to obtain seasoned ties — ties free of dripping preservative — for future projects, stage or store new ties in areas that are less likely to contact flowing water, and take care to ensure that ties do not roll down embankments into water during their projects. It’s not easy to get BNSF to change their ways. We are very pleased with this outcome – and we appreciate the hard work that our Ecology inspectors and Office of the Attorney General staff put into this issue. 

And remember: Next time you see pollution, don’t hesitate to call (360) 220-0556.
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