By Joseph T. O’Connor Explore Big Sky Senior Editor
YAKIMA, Wash. – A coal dust lawsuit based in Washington State, and leveled against the second largest railroad company in North America, took a notable turn on Jan. 3. The verdict could have significant implications for Montana and contention over coal transportation.
U.S. District Court Judge Lonny R. Suko wrote in his conclusion that he was denying Burlington Northern Santa Fe Railway Company’s motion to dismiss charges that it violated the Federal Water Pollution Control Act – more commonly known as the Clean Water Act – according to court documents filed in U.S. District Court for the Eastern District of Washington in Yakima.
The plaintiffs, including the Sierra Club and the Natural Resources Defense Council, among others, say their research shows coal dust from uncovered railroad cars is making its way into water systems around Washington.
“The NRDC got involved to force BNSF to clean up its act and comply with federal law,” wrote Amanda Jahshan, NRDC’s wildlife energy conservation fellow, in an email. “The same dangers we see in Washington happen in Montana too.”
“Plaintiffs allege that rail trains and rail cars (‘rolling stock’) are considered point sources under the CWA,” the court documents say. “[And those] point sources include each and every train and rail car transporting coal.”
The CWA asserts that each violation can carry a maximum fine of $37,500, per violation, per day, according to the U.S. Environmental Protection Agency.
BNSF testimony before the Surface Transportation Board, the federal body that regulates U.S. railroads, shows that BNSF sends an average of four coal trains per day through Washington State, each one comprised of around 120 cars.
Approximately 90 percent of the coal BNSF moves annually – both domestically and internationally– originates in the Powder River Basin, which is made up of coalmines in Montana and Wyoming.
Of the 343,000 carloads of freight BNSF exported by rail from Montana in 2012, 243,000 carried coal, according to Matt Jones, BNSF’s Director of Public Affairs for the Northwest and Canada.
“The important thing to point out is that the vast majority of coal transported by BNSF goes to utilities in the U.S. to produce electricity,” said Jones, who’s based in Bozeman. But some, he says, goes to coal export terminals in Canada en route to South Korea, Japan and China. “The amount is customer information that we don’t disclose,” he said.
In 2011, STB approved a BNSF operating rule that allowed the railroad company to require that coal shippers treat each open-topped rail car with a coating that suppresses coal dust during transport. The coating, called a surfactant, is sprayed on top of each carload at loading time.
“Now all [coal] loads will be either treated with surfactant, or otherwise handled to prevent any dusting,” Jones said, referring to both in-state and out-of-state shipments.
These surfactants are 85 percent effective, according to BNSF’s website.
Currently, there are no coal export terminals in the U.S., though several are proposed, including two in Washington and one in Oregon.
The original lawsuit was filed on July 24, 2013, and a similar one is pending in western Washington. BNSF did not wish to comment on the U.S. District Court ruling to deny the railroad company’s motion to dismiss the lawsuit.
“We’re setting up a meeting with the court to move forward with the trial,” said Krista Collard, press secretary for the Sierra Club’s Pacific Northwest region.
The CWA was first enacted by Congress in the Water Pollution Control Act in 1948 and revised in 1972’s Federal Water Pollution Control Act Amendments. It was created “…to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” according to the EPA.