Federal Government Sues, Proposes Consent Decree with BNSF Railway Over Superfund Site

On Monday, the United States of America, “by authority of the Attorney General … and acting at the request of the Administrator of the … Environmental Protection Agency…” filed suit under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 against BNSF Railway Company (BNSF) and Montana Rail Link, Inc. (MRL) in the District of Montana.  

The government sought relief for the remediation of environmental damage at the East Helena Superfund Site in Helena, Montana relating to on-site railroad properties. On the same day the Plaintiffs filed the complaint, the parties filed a Remedial Action Consent Decree.

Plaintiff alleges that the Superfund Site includes a lead and zinc smelter operated by the American Smelting and Refining Company between 1889 and 2001. Plaintiff alleges BNSF owns a railway line through the Superfund Site, including an ”operating railyard” next to the smelter, which BNSF and its predecessors operated before leasing the railway line and yard to MRL in 1987. The complaint alleges that the smelter’s operation resulted in the release of lead and other pollutants at the site for which Defendants have liability.

The Remedial Action Consent Decree is a 42 page document setting forth Defendants’ joint and several obligations to remediate, including payment of “Future Response Costs” incurred by Plaintiff, i..e., “… all costs that the United States incurs in reviewing or developing plans, reports, and other deliverables submitted [by Defendants] pursuant to this Consent Decree, in overseeing implementation of the Work, or in otherwise implementing, overseeing, or enforcing this Consent Decree…”  

Plaintiff is represented by attorneys from Environmental and Natural Resources Division of the Department of Justice and the United Sates Attorney for the District of Montana.