The Union Pacific's Toxic Railroad

By PAUL KOBERSTEIN

HARRISON, Idaho -- To get an idea of the kind of cleanup the Environmental Protection Agency has in mind for the Coeur d'Alene Basin, consider its Superfund response to poisons within a critical sliver of land running through the guts of the basin: the 72-mile rail branch from Plummer near the Washington border, to the Silver Valley near the Montana border.

In the 19th Century every mine needed a railroad, and in the Silver Valley the line was run by Union Pacific and its predecessors. Over several decades, trains heaved and tugged and derailed along this route to the mines, smelters and fertilizer plant located in the valley. Until discontinued in 1992, the Union Pacific carried loads both into and out of the valley, including ore concentrates from foreign mines that were shipped to Kellogg for further smeltering.

Toxic cargo from uncovered, leaky railcars blew and spilled into Lake Coeur d'Alene while crossing a 3,000-foot trestle near its southern reaches. Toxins spilled from trains as they passed along sharp curves around the lake, and into smaller lakes and wetlands as trains traveled alongside the Coeur d'Alene River. Trains also spilled poisons onto the Coeur d'Alene Reservation, private farmlands and residential properties. The trains added pollution to an area already massively contaminated from mining waste - where waste has been killing tundra swans and other wildlife for decades.

When spilled, the highly concentrated ores poisoned the environment at levels far greater than most other places in the basin. This was because the concentrates had much higher levels of heavy metals than mine tailings, ranging up to 75 percent pure lead. The spilled metals - lead, arsenic, cadmium and zinc - were pushed around by over 100 years of rain, snow and groundwater, poisoning adjacent waters, land, and rocky shorelines. The rail bed itself was built largely from mine tailings.

A 1999 study showed severe contamination all along the right-of-way, and extremely high contamination at numerous "hot spots" that may have been the scene of continual shunting of cars, derailments and other accidents. Lead levels as great as 74,000 parts per million were found along the right-of-way, far above the 530 parts per million standard that the EPA says is poisonous to waterfowl.

Today, a "cleanup" engineered under a federal court-ordered consent decree is in progress. The plan calls for removing only a tiny portion of the contamination, converting the old rail bed to a public trail for hiking and biking, capping the old rail bed with a 2.5-inch layer of asphalt, and leaving the rest of the contamination in place.

A Union Pacific-EPA study gets it wrong

The chain of events leading to the decree began in 1991, when the Coeur d'Alene Tribes (and later the state of Idaho and the federal government) sued the railroad in federal court under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for natural resource damages. Among other conditions, the Coeur d'Alene Tribe demanded that a thorough Environmental Impact Statement (EIS) be done. The Union Pacific responded with a plan to convert the line to a public trail, as provided by a 1983 federal law, the Rails to Trails Act. This law, intended to solve the twin problems of railway abandonment and public demand for recreational trails, allows public agencies to obtain unprofitable or inactive rail corridors from railroads and convert them into hiking and biking trails for public use. If demand for rail transport increases in the future, the railroad can reoccupy the trails, reinstall the tracks, and resume rail operations. Most of the Union Pacific rail corridor could have reverted back to private property owners were it not for the 1983 law.

The tribe eventually dropped its demand for an EIS and settled for a cleanup proposal submitted by Union Pacific. The natural resources damage lawsuit was settled in 2000 with what the U.S. Justice Department touted as a "novel" consent decree that required the Union Pacific to spend $25 million for converting the right-of-way "into a world-class biking and hiking trail." For most of its length, the trail will be maintained as a State Park, and as a Tribal Park for the segment on or near the Coeur d'Alene Tribe's Reservation.

The state recently announced the trail has a new name: the "Trail of the Coeur d'Alenes." But to residents along the trail, it is bitterly known as the place where the Union Pacific was allowed to get away with a minimal cleanup of the contamination it has caused.

Union Pacific officials at the corporation's headquarters in Omaha, Neb., were claiming during the 1990s that any pollution along the route was minimal. In a 1996 letter to the U.S. Department of Justice, Union Pacific lawyer Thomas E. Greenland wrote, "It is UPRR's contention that natural resources have not been damaged by the right of way or its use as a transportation corridor with the Coeur d'Alene Basin. Any potential contaminants that may have fallen from rail cars are essentially confined with the localized ballast section beneath the tracks and are not an active source of lead to the environment."

Based on this statement, EPA officials and tribal representatives promised repeatedly and publicly that there would be "complete removals of all contaminants on the reservation," says Rog Hardy, a geologist who owns a home along the right-of-way south of Harrison.

Howard Funke, a lawyer for the Tribe, said at a meeting two years ago in nearby Cataldo that the Tribe was given the choice of having a paved trail or having all the contamination removed. "They quickly opted for the proposition of having all the contamination removed from the Reservation," Funke said, according to a tape of the meeting.

The Union Pacific also persuaded the EPA and the other plaintiffs to waive a requirement for an environmental impact statement that Greenland said would be "unnecessary and redundant." The EPA did perform a less rigorous study, paid for and directed by Union Pacific contractors. The study was remarkably narrow, as it did not consider alternatives to the final Superfund response, in contrast to the EPA's investigation of the basin as a whole, which examined six potential cleanup alternatives. Critics maintain this violates a Superfund mandate that requires the review of several alternative solutions before a final plan is selected.

Incredibly, subsequent testing showed the rail line was far more contaminated than stated in the study, and more than either the Union Pacific or EPA had let on. The Union Pacific and EPA also failed to disclose or detect the fact that poisons had entered sensitive wetlands and lakes next to the rail bed. This study did not even look for toxins that seeped toward the edges of the 150-foot-wide right of way. Instead, the study focused solely on the middle 30 feet, and looked no deeper than 3.5 feet.

New data reviewed by Cascadia Times shows that if the EPA had looked wider and deeper, it would have found pollution under the railbed at levels greater and in places more widespread than the 1999 study acknowledged. Soil samples taken by Hardy found lead levels as high as 10,300 parts per million toward the edges of the right-of-way - places that the Union Pacific-EPA study did not analyze.

The Union Pacific-EPA study also vastly understated the amount of contamination. Subsequent data shows that at depths of at least 30 feet, lead contamination remains as high as 40,000 parts per million, and that lead levels at shallower depths are as high as 55,000 parts per million. While this information may be buried among thousands of pages at public information repositories, the Union Pacific or the EPA have not exactly trumpeted the news that their study got it wrong.

 

The contamination includes elevated levels of other poisons, especially arsenic. Hardy's sampling revealed high arsenic levels, up to 310 parts per million. The EPA does not require separate testing for arsenic, which, Hardy maintains, likely migrates differently than the lead.

Hardy presented some of this data to the public and the EPA at an Ombudsman's hearing in August 2000. The point of all this, Hardy says, is that "there is substantial contamination along the causeway in lakes, wetlands and on private land where the Union Pacific has no plans to do any cleanup."

Union Pacific officials did not return telephone calls seeking comment.

 

A loophole big enough to drive freight trains through

It now appears the Tribe and people who live along the trail won't get the extensive removal of contamination they say they were promised.

For years, the Union Pacific often promised the removal of all but 1000 parts per million lead along the westernmost 15 miles of the right-of-way. But the consent decree provided a loophole through which the Union Pacific could escape this obligation merely by providing notice to the EPA and the Tribe.

After the Ombudsman hearing, the Union Pacific went back and did more extensive sampling, subsequently concluding that the cleanup it promised to do in this section would be too costly and therefore not required under the consent decree. The UP has conducted further tests but has yet to release this latest data to the public.

Rather than remove the poisons, the UP announced in December 2001 that it will cover up contamination it earlier promised to remove with a 10-foot-wide strip of asphalt down the middle of the 150-foot right-of-way and walk away with only minimal further liability. High levels of arsenic, lead, cadmium and zinc will be left in place.

The EPA and the Coeur d'Alene Tribe have approved this revision. Dick Martindale, the EPA's cleanup spokesman, said it would be too costly for the railroad to perform a more extensive cleanup, and the Union Pacific would find it difficult to find places to store the contamination after it's removed. Tribe spokesman Phil Cernera did not return a telephone call seeking comment.

By merely capping the rail line off the Reservation, the Union Pacific creates another problem. In certain places over the years the rail corridor was shifted by as much as a quarter mile. Capping the route will do nothing to address pollution along these former rights-of-way. Changes in the route occurred when the Union Pacific converted its high wood trestles around the lake to rock causeways in the early 20th century, straightening out the line at the same time. In fact, the route has likely been inadvertently relocated onto private land in places, where the contamination has not been characterized and there are no plans to remove it. Contamination in these areas will be redistributed downstream with each flood.

Parts of this stretch are lands that are privately owned. Families who live along the right-of-way contend the EPA's response lets a deep-pocketed railroad off the hook for a song. At the same time, they say the limited response allows the pollution to illegally and severely threaten property values, the health of residents and wildlife. There have been no studies documenting risks that the local residents and wildlife may be facing as a result of the EPA's response. The deal also gives rise to doubts that the EPA can be trusted to live up to its promises to clean up other contaminated places in the basin.

"This contamination will continue to seep into the wetlands and into the lake, and likely could be on private land," says Rog Hardy. His house sits next to Lake Coeur d'Alene, and the rail line easement crosses his property and his mother-in-law's property for more than a mile along the lake's eastern shore.

Toni Hardy, Rog's wife, blames the EPA. "They were the only ones who can protect us here. The EPA sold us out."

"You've got a 72-mile contaminated landfill is what this is," says Jeri McCroskey, who lives just north of Harrison.

"Of course, we are concerned about property rights and values," says Michael Schlepp, a farmer near Cataldo. "Why shouldn't a landowner be concerned about the Union Pacific getting the EPA to sign off on a CERCLA remedy that leaves the contamination that UPRR placed on our property? Liability never goes away, it just gets moved to someone else. In this case the innocent landowner. The remedy calls for hazardous warning signs to be placed on the trail warning people not to step off of the asphalt except in designated areas. Would any rational person want that in their back yard?"

Something more

sinister going on?

Other neighbors think there's something sinister going on. "It's our opinion that the cleanup of the rail right of way was grossly inadequate," says Bob McCroskey, a retired former head of computer studies at Whitworth College in Spokane. "The bottom line here is that there has to have been political corruption for this to occur. The Union Pacific was one of the biggest contributors to (governor Dirk) Kempthorne, first in the Senate and then as governor."

The Union Pacific is one of the biggest contributors to Idaho politicians. The UP gave $25,990 to Kempthorne's campaigns for Senate and governor from 1994 through 1998, according to the Center for Responsive Politics. The UP has also contributed $71,998 to Sen. Mike Crapo's campaigns, and $40,772 to Sen. Larry Craig's campaigns. Total Union Pacific contributions to these campaigns were at least $138,760 (see chart Page 10).

Several families in the lower basin, including the McCroskeys, Hardys and Schlepps, are members of Citizens Against Rails to Trails/Citizens Advocating Responsible Treatment. Speaking for themselves, and not for the organization, they say have been shunned by environmental groups who believe they are chiefly concerned about property rights and values.

"It is easy to dismiss us as NIMBYS when you don't understand the complexities," Hardy says. "This is a precedent-setting Superfund situation, and it is being spin-doctored in a less-than-truthful way."

The neighbors would simply like to see the contamination removed and property returned to its owners.

Meanwhile a thin 2.5-inch layer of asphalt has already been laid in many places along the former rail route. By mid-to-late summer, the state of Idaho expects to open the trail to hikers and bicyclers, giving the public an opportunity to view from close up a land that is both beautiful and spoiled. The Hardys protest this move, however, citing the consent decree provision that no part of the trail can be opened to the public until the official certificate of completion has been issued, and that, subject to court challenge, could be years away.

When the trail does open, visitors should not expect to find a wilderness experience. The trail will be posted with more than 900 signs warning people of potential exposure to contamination, especially in rural areas. In cities, there is some resistance to posting the warning at each trailhead. The mayor of Wallace, Ron Garitone, has been vocal in trying to keep the health warning signs out of his town. The signs aren't much of a tourist attraction.

The Trail of the Coeur d'Alenes may be one of the few places on earth where the public is invited to witness the slow, deadly poisoning of wildlife. It's a breathtaking riverscape, but please stay on the path