04-23495. Notice of Lodging of Consent Decree Under the Comprehensive Environmental Response, Compensation and Liability Act

Notice is hereby given that on September 29, 2004, a proposed Consent Decree in United States of America, The State of New Mexico, and The New Mexico Office of Natural Resources Trustee v. The Burlington Northern and Santa Fe Railway Company, Civil Action No. CIV-04-1101 JH RHS, was lodged with the United States District Court for the District of New Mexico.

In this action the United States, on behalf of the United States Department of the Interior, the United States Fish and Wildlife Service (“DOI”), and the Attorney General of the State of New Mexico, on its own behalf and on behalf of The State of New Mexico and The New Mexico Office of Natural Resources Trustee (“NMONRT”), sought damages from The Burlington Northern and Santa Fe Railway Company (“BNSF”) for injury to, destruction and loss of natural resources, under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9607(a), resulting from the release of hazardous substances from the AT & SF Albuquerque Superfund Site, located in Albuquerque, Bernalillo County, New Mexico. The Complaint alleges that hazardous substances, including PCP, zinc chloride, creosote and its constituents, were released from a wood treatment plant owned and operated by Defendant BNSF's predecessor to the environment, resulting in injury to wildlife habitat and groundwater resources. The Consent Decree provides for BNSF to pay a total of $1.09 million to resolve the claims alleged in the Complaint. The Consent Decree also resolves BNSF's claim that the Federal government is partially responsible for the injury, destruction and loss of natural resources due to alleged Federal control of the facility during World War I, by requiring the United States to pay a total of $10,000. Of the total payments of $1.1 million, a total of $1,061,192.60 is to be paid into two separate Court Registry trust accounts: (1) $400,000 for use by DOI and NMONRT jointly to plan and implement projects designed to restore, replace, and/or acquire the equivalent of injured habitat resources; and (2) $661,192.60 for use by NMONRT to plan and implement projects designed to restore, replace, and/or acquire the equivalent of injured ground water resources. The remainder of the $1.1 million is to be paid to reimburse costs incurred to assess the injury to, destruction and loss of natural resources, as follows: (1) $11,625.32 to DOI; (2) $26,101.04 to NMONRT; and (3) $1,081.04 to the New Mexico Office of the Attorney General.

The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States, et al. v. The Burlington Northern and Santa Fe Railway Company, D.J. Ref. 90-11-2-07889/1.

The Consent Decree may be examined at the Office of the United States Attorney, District of New Mexico, 201 Third St. NW., Ste. 900, Albuquerque, NM 87102. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, http://www.usdoj.gov/​enrd/​open.html. A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC. 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood ([e-mail]), fax no. [phone], phone confirmation number [phone]. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $5.25 (25 cents per page reproduction cost) payable to the U.S. Treasury.

Thomas A. Mariani, Jr.,

Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Division.