Court puts railroad track weed-killing plan on hold

Posted: Friday, July 16, 2010

ANCHORAGE - Alaska's highest court has put on hold plans to spray weed-killers along track owned by the Alaska Railroad, believed to be the last railroad in the country that is herbicide-free.

The state Supreme Court wants to hear more about a plan to spray herbicides along 30 miles of track south of Anchorage. The railroad says it has tried other methods to keep weeds down, including using inmate labor, a flame thrower and a steam machine, but needs herbicides to keep weeds from forcing apart tracks, causing railroad ties to decay more quickly and concealing problems with track fasteners.

Phyllis Johnson, the lawyer representing the railroad, said while the delay is disappointing it also is understandable given the enormous amount of documentation presented to the Supreme Court for review.

"We will see what happens," she said Thursday.

The railroad wants to be cleared to conduct three days of spraying.

If the court lifts the stay so that the railroad can to go forward with its plans "we would certainly do so," Johnson said.

The railroad has sought since 2006 to use weed killers along its tracks. Environmental groups are opposed and fighting a permit issued by the state in April. They contend that regulators failed to consider the herbicide's harmful effects on drinking water and salmon streams. The permit would have allowed spraying to begin last week, but the groups were granted a temporary stay that would have expired at midnight Thursday.

The railroad and the state now have until Friday to respond to the other side's request for the stay to be continued. The court gave them until next Tuesday to file reasons why they oppose a review of the case.

The lawsuit was filed by the Alaska Community on Toxics, Alaska Center for the Environment, Alaska Survival, Cook Inletkeeper and the Native Village of Eklutna. They say Alaskans overwhelmingly opposed the use of herbicides along the railroad's right of way between Indian and Seward and at the Seward rail yard.

"Once spraying happens, the damage and contamination of the waters is complete," said Austin Williams, a Trustees for Alaska lawyer representing plaintiffs. "There is no additional recourse."

Williams said the court received the plaintiffs' materials earlier in the week.

At issue is an Alaska Department of Environmental Conservation permit allowing the railroad to spray glyphosate, the active ingredient in Roundup and Agridex, which increases the effectiveness of the herbicide, along its right of way for a two-year period beginning June 9.

Environmental groups and the village of Eklutna protested. The Superior Court did not order the railroad to stop its plans to spray but extended a previous stay. The Supreme Court extended the stay Wednesday.

Plaintiffs say in court documents that DNR's decision to allow herbicides is "arbitrary considering the risk to human health and the environment that would occur from spraying."

They say in court documents that the Department of Environmental Conservation requires safety protocols be employed and protective clothing worn when using the chemicals, while at the same time concluding they are safe for the public and don't require posting of the area or notice to the public when spraying occurs.

The herbicide would be applied with a low-pressure nozzle 2 to 3 feet off the ground.

The permit contains some restrictions, including no spraying within 200 feet of groundwater or within 100 feet of a stream or pond.

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