For decades, BNSF Railway Company has operated open top coal and petcoke train cars along the Columbia River and other beautiful and iconic Washington waterways, causing these waterways to become highly polluted. However, after years of litigation, Sierra Club, its allies, and BNSF lodged a final consent decree in the U.S District Court for the Western District of Washington forcing the major rail company to clean up its act and pay for the pollution it has caused.
In June 2013, the Sierra Club and other environmental groups sued BNSF Railway Company claiming that the coal and/or petroleum coke (“petcoke”) pollution of numerous waterways violated the Clean Water Act because BNSF as the railroad operator of the open top rail cars did not have a National Pollution Discharge Elimination System (NPDES) permit authorizing these discharges. A BNSF study found that each rail car loses on average 500 to 2000 pounds of coal dust or 30 to 120 tons of coal dust per 120-car train (1).The lawsuit aimed to force BNSF and coal shippers to take appropriate steps to prevent coal and petcoke from flying out of its open-top cars and landing in the Columbia River and other waterways the trains pass over or near. This problem could become far more severe if plans to construct new coal export facilities in the Pacific Northwest come to fruition, such as the Millennium Bulk Terminals proposal in Longview, Washington. These proposals would massively increase the number of coal trains traveling through Washington. Fortunately, local residents throughout the Pacific Northwest have organized to fight these threats, and there is now massive public and political opposition to those coal export plans up and down the West Coast, with record-breaking numbers of public comments amidst rapidly dwindling demand for coal.
Before the case went to trial, the court issued a few landmark rulings. First, although the Clean Water Act expressly defines a “point source” to include “rolling stock” in its definitions, and rolling stock includes rail cars or trucks, no court had explicitly decided this issue (2). In the Eastern District of Washington’s order denying BNSF’s motion to dismiss, the court affirmed that rail cars are a point source subject to the Clean Water Act (3). Rail cars carry a variety of cargo, including coal, grain, oil, and other commodities. Further, in the order on summary judgment, the court upheld plaintiffs’ standing to sue for all major waterways in the state of Washington near BNSF rail lines based on standing witnesses presented for a representative number of waterways.
Over three years later, the case went to trial where scientists and experts testified that millions of coal particles per second were coming off each railcar, dumping mercury, arsenic and hundreds of other pollutants into rivers, lakes and the Pacific Ocean along BNSF’s rail lines. Eyewitnesses showed video and photographic evidence of coal dust and debris being dumped into adjacent waterways, and recounted being stricken by coal from passing trains while recreating in or driving along waterways. In the middle of trial, the parties reached an agreement in principle, bringing an end to those proceedings pending negotiation of a final consent decree.
On March 3, 2017, the Sierra Club, its Waterkeeper allies, and BNSF lodged a final consent decree settlement with the court. Under the settlement, BNSF agreed to pay for a precedent-setting study about rail car covers for coal and petcoke train cars putting BNSF on a court-ordered path toward keeping affected waterways free of coal pollution. In addition, the settlement requires BNSF to contribute $1 million towards environmental projects across Washington state focusing on the Bellingham, Puget Sound, Columbia River and Spokane River areas. BNSF will also clean up areas of the Columbia River and its tributaries that have been contaminated by large amounts of coal and/or petcoke from BNSF trains including: Horsethief Lake, the Drano Lake Rail Bridge and parking area, the White Salmon River and its confluence with the Columbia River, the confluence of Rock Creek and the Columbia River, and the causeway near Murdock, WA. Many of these are culturally and historically significant places, as well as areas frequently enjoyed by people and wildlife.
The settlement represents a major win for environmental groups such as the Sierra Club and places the cost on the polluters. It should serve as a reminder that any entity that pollutes the water needs to take responsibility to fix the problem. According to Cesia Kearns, Deputy Regional Campaign Director for the Sierra Club’s Beyond Coal Campaign, “This settlement finally forces BNSF to take responsibility for their impact on our water, clean up the mess they made and take steps to prevent similar pollution in the future.”
“Our public waters are not dumping grounds for coal and toxic pollutants,” said Chris Wilke, Puget Soundkeeper Executive Director. “This settlement rightfully places the burden of cleaning up contamination from coal trains with the company responsible for the pollution, and it will also lead the way in affirming technologies to prevent coal from entering waterways in the future.”
What’s next? The study on rail car covers will start within six months of the date of entry of this consent decree and will last approximately two years. If BNSF deems covers to be a feasible solution, they will amend their loading rule to permit the use of covered rail cars. The settlement should also signal to other railroads that they need to take appropriate steps to protect clean water, starting with covering their rail cars.
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1 BNSF Railway Inc. Vice President Gregory Fox’s testimony before the Surface Transportation Board (STB), Arkansas Electric Cooperative Petition for Declaratory Order, FD 35305, July 29, 2010, at 42:8-13, accessed: https://www.stb.gov/TransAndStatements.nsf/8740c718e33d774e85256dd500572ae5/9e49ebf2fea431f1852578460066c5cb?OpenDocument.
2 See definition of “point source” found at 33 U.S.C. § 1362(14), Clean Water Act (CWA) § 502(14).
3 This case was originally filed in both the Eastern District of Washington and the Western District of Washington. Motions to Dismiss were filed in both districts before the case was consolidated in the Western District of Washington.