MAC: Mines and Communities

BNSF sues Doe Run over lead

Published by MAC on 2005-05-17

When dealing with the numerous violations of health and safety standards occassioned by mining and smelting, we often forget the conseqences to workers - and communities - of transporting ores and concentrates. Now the lead smelter Doe Run is being sued in the US by the famous Burlington Northern Railroad which itself has been sued over many years by its own workers who've had to handle toxic cargos from Doe Run.

Critics may say it's a case of the pot calling the kettle dirty. Never mind, it's yet another indication that - in the US at least - legal redress to mitigate the harm caused by the minerals industry is finding new targets and ways of gaining compensation.

Ironically, Doe Run's own work force in Peru is backing the company, even though it's refusing to implement a programme of essential reduction in its toxic emissions.

BNSF sues Doe Run over lead

St Louis Post-Dispatch

By Robert Patrick of the Post-Dispatch

17th May 2005

Hundreds of its employees and contractors have sued BNSF Railway Co. over the years, alleging that toxic lead cargo hauled by Burlington Northern trains left a legacy of suffering and disease.

Now, in an unusual move, the railroad is suing its own customer, demanding that Doe Run Resources Corp. of Maryland Heights repay millions of dollars BNSF spent on lead-related settlements and cleanup costs.

The circumstance is unusual, in part, because the railroad is suing a major shipper - although it may be impractical for Doe Run to take its business elsewhere, given the large quantities of ore involved.

The case is unusual because BNSF's lawsuit borrows some of its complaints from the very language of suits that had been filed against the railroad, potentially making itself more vulnerable in those cases.

And it is unusual because the case is filed in St. Louis Circuit Court, a venue some consider to be friendly to plaintiffs, to which BNSF has objected in the past.

BNSF has spent $8.9 million to clean up contamination from the Lindenwood Yard in St. Louis and the Cherryville siding in Crawford County, said Paul Brown, the lawyer who filed the suit on May 6.

The suit formally was served Tuesday on Doe Run. It seeks to recover the amount of the cleanup plus unspecified costs of settling damage claims. Brown would not say how much might be at stake, except to say, "It's a significant lawsuit."

The suit says "substantial" damages were paid in confidential settlements to 490 claimants to "avoid the risk of substantial jury verdicts." Several lawyers involved in the cases said terms of the agreements barred them from commenting. But each case had sought thousands of dollars.

BNSF settled 1,144 nonasbestos personal-injury claims in the first three months of 2005, paying out $65 million, or about $56,800 per claim, according to its financial filings. But Brown and company officials said that figure would not be a good yardstick to measure the lead settlements.

Trial lawyer Jerry Schlichter would not discuss the cases he has filed against BNSF, but laughed when told of the location of BNSF's suit against Doe Run.

"It is indeed ironic that the railroad chose to ... invoke the courts of the city of St. Louis while at the same time they have said it is unfair to defend cases that have been brought by their employees in the city of St. Louis," Schlichter said.

Brown disagreed. "There is no irony because this cause of action arises out of an environmental cleanup at the Lindenwood yard, which is in the city of St. Louis," he said, noting that workers were exposed there and on rail cars moving to and from St. Louis.

Brown acknowledged that BNSF, as a defendant, has tried to move some suits out of the city, but he said their only St. Louis connection was that company rails pass through the city.

Brown also said that under tort-reform legislation passed this year and designed to make venue shopping harder, the lawsuit could still have been filed in St. Louis.

A lawyer representing Doe Run declined to comment on BNSF's suit.

In claims filed in St. Louis and elsewhere, workers, contractors and their families have said that the railroad's toxic cargo of lead ore and lead ore concentrate affected their health. Plaintiffs claimed that ore coated rail cars and blew off in transit, getting into their skin, eyes, mouths and noses in a variety of ways, and causing symptoms of lead poisoning.

Contractors claimed they were exposed while cleaning rail cars at Cherryville. Other claimants said they were exposed to lead-contaminated debris when it was moved elsewhere in Crawford County.

BNSF's lawsuit makes many of those same allegations against Doe Run, parent company the Renco Group Inc. and companies that Doe Run bought over the years. Some of the language could almost be lifted from those suits.

BNSF's suit says that the mining companies spilled lead ore while filling or emptying rail cars, punctured the sides of rail cars or failed to completely close or cover the cars, allowing lead ore to escape.

The ore settled on rail cars, blew off in transit or spilled out of the cars, poisoning employees and contaminating rail yards, the suit says.

Contract employees at Cherryville were exposed to lead while cleaning rail cars, and others were exposed when lead-contaminated debris was used in parking lots, building sites and elsewhere, the suit says.

Brown said that for probably more than 100 years, railroads and industry have signed "sidetrack agreements" when they built a rail line to serve a company or mine. Those agreements said that under certain circumstances, if the railroad was legally liable as a result of serving that facility, the industry would indemnify the railroad.

BNSF's allegations that its workers and contractors were injured by lead ore could damage its defense against future cases filed by those workers, said Schlichter.

Michael Warshauer, head of the railroad-law section of the Association of Trial Lawyers of America, agreed. "It certainly will make the workers' claims easier," he said.

However, Warshauer said, the lead-exposure cases aren't that tough to prove, because railroads have a duty to provide a reasonably safe place to work. "I don't think they'd be giving up that much," he said.

Warshauer said he was more surprised that BNSF is suing a shipper. "As a general rule, they (railroads) stay ... away from their customers," he said. He said rail customers rarely are held accountable by the railroads.

Again, Brown disagreed, saying he has sued customers before. "I don't think its that unusual for a railroad to enforce its rights by enforcing a sidetrack agreement," he said.

Warshauer said a railroad's decision to sue depends upon the money at stake, whether a customer is insured, and whether a customer - angered by the lawsuit - has an option of switching to other transportation.

Although Brown said the mines could transport ore by truck, Warshauer said that railroads sometimes go after mines because the only way those companies can economically move their bulk freight is by train.

"Who else is going to ship that stuff?" he asked.

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