The Sierra Club, Columbia Riverkeeper and several other conservation groups sued BNSF Railway Company last summer after finding what they call “substantial amounts of coal in and along several Washington waterways near BNSF rail lines.” On Jan. 3 the groups celebrated the most recent development in the Clean Water Act case when the U.S. District Court for the Eastern District of Washington denied a motion to dismiss, allowing it to go forward.
The case alleges that coal and related pollutants drifting off trains are a violation of the Clean Water Act, which says that dumping into a U.S. waterway without a National Pollutant Discharge Elimination System permit is against federal law.
Open-top coal trains are already going through the Columbia Gorge, and proposed port terminals in Washington and Oregon are vying to ship millions more tons of coal by train from the Powder River Basin of Montana and Wyoming through the Northwest for export to Asia.
Eugene-based Charlie Tebbutt is one of the attorneys in the case. He says that from the beginning BNSF has been saying that the case is frivolous, “despite the fact that they have admitted that they discharge 30 tons of coal during every train shipment, admitted that to a federal agency and admitted they are responsible for the coal.”
In 2011, the Surface Transportation Board found that coal dust emissions from the open-top railcars affect the rail beds and that BNSF could take steps to suppress the dust. BNSF issued new rules later that year requiring the coal be loaded in a bread-loaf shape and be sprayed with a surfactant to abate the dust. But Tebbutt says the surfactant blows off and becomes a pollutant as well as aggregates the coal products into large chunks that also blow off the cars and land in waterways.
Tebbutt says the case now moves to the discovery phase, where the plaintiffs find out who all the owners of the rail cars are and start getting the studies BNSF has done about how much coal it loses during shipment. He says the end result is that BNSF is going to have to cover the trains.