The Western Coal Traffic League (WCTL) told the U.S. Surface Transportation Board that the BNSF Railway is engaged in an improper fishing expedition to find out more about WCTL members.
WCTL represents power producers that frequently complain to the board about railroad matters as they relate to transportation of coal from the mine to the power plant. On Jan. 27, in a long-running case having to do with control of coal dust from trains, BNSF Railway asked the board to have the WCTL produce member information and documents.
“The board should summarily deny BNSF’s motion because the board’s rules of practice prohibit motions asking the board to order a party to produce information or documents over which a party lacks possession, custody, or control,” the WCTL said. “Moreover, BNSF’s real interest appears to be to unlawfully target, and retaliate against, WCTL members because of WCTL’s participation in this proceeding. The board should not countenance such tactics.”
The case at issue, which is actually about two separate board decisions called Coal Dust I and Coal Dust II, has to do with an argument that BNSF should not be allowed to impose the costs of controlling coal dust coming off its trains on coal shippers.
The Coal Dust I case was originated by Arkansas Electric Cooperative Corp. In a Coal Dust I procedural decision served in December 2009, the board issued an order inviting all interested persons to participate as parties in the case, with many coal shippers and shipper associations, including WCTL, accepting the board’s invitation. In March 2011, the board issued a decision finding that BNSF’s publication of the disputed Coal Dust Tariff constituted an unreasonable practice and urged the parties to work together to “develop reasonable solutions to the problems presented in this case.” BNSF ignored the board’s admonition and proceeded to unilaterally develop and publish a revised and onerous Coal Dust Tariff, WCTL noted.
In August 2011, WCTL requested that the board take three actions: reopen the Coal Dust I case record to address the legality of BNSF’s revised Coal Dust Tariff; initiate a board supervised mediation; and stay the effective date of the revised Coal Dust Tariff during the mediation process. WCTL’s request was supported by the American Public Power Association, the Edison Electric Institute, the National Rural Electric Cooperative Association and Arkansas Electric.
BNSF replied in opposition to WCTL’s request, but represented for the first time in its reply that it would not take any actions to enforce the revised Coal Dust Tariff without first giving affected shippers 60 days advance notice, WCTL said. In an August 2011 decision, the board denied WCTL’s request for an injunction on grounds that the request had been practically mooted by BNSF’s reply representations. The board subsequently determined that it would “not order mediation at this time” and instituted a new declaratory order proceeding “to address issues raised by WCTL” in its request to reopen Coal Dust I.
As for the follow-on Coal Dust II case, at the joint request of BNSF and WCTL, the board adopted an “accelerated” procedural schedule. Notices of intent to participate in Coal Dust II as parties of record have been submitted on the shipper side by the above-named associations and parties, and also by the National Coal Transportation Association and Union Electric Co. D/B/A Ameren Missouri. The other parties of record are BNSF, the Union Pacific Railroad and the U.S. Department of Transportation. The accelerated procedural schedule established a 50-day discovery period, which ended on Feb. 6.
WCTL said the opposing parties in the case haven’t sought any unreasonable documents from BNSF in Coal Dust II. “BNSF has proceeded down a different path, seeking discovery of a scope and breadth against trade associations and non-parties never before contemplated or sanctioned in any STB proceeding,” WCTL added. “Specifically, BNSF tendered separate sets of discovery requests against all shipper parties of record, including separate sets of requests to the shipper trade association parties – APPA, EEI, NCTA, NRECA, and WCTL. In a stark departure from standard STB practice, BNSF defined each association as including the association’s ‘members.’ Collectively, the associations have more than 3,100 individual member companies. Each trade association, including WCTL, objected to producing member company information or documents that were not in the ‘possession, custody, or control’ of the association. … WCTL completed its responsive production on January 30, 2012.”
BNSF also tendered discovery requests on each current, individual WCTL member – 16 sets in all – with a total of 272 separately numbered requests, WCTL said. BNSF’s requested non-party discovery is unprecedented in STB practice, the league added. Each WCTL member objected individually to BNSF’s attempt to use party-based discovery against nonparties, WCTL added.
BNSF complains about Ameren Missouri response
BNSF had not replied to the WCTL arguments as of the end of the day on Feb. 8. But, on Feb. 6, BNSF did file a request with the board that it order Ameren Missouri to produce documents in this case.
“Ameren Missouri has refused to respond to most of the document requests that BNSF propounded in its January 10, 2012 discovery requests,” said BNSF. “Ameren Missouri’s refusal to provide the requested discovery comes close on the heels of the refusal of Westem Coal Traffic League (‘WCTL’), the shipper association responsible for initiating this proceeding, to produce information relating to the issues in this case. BNSF filed a motion to compel discovery responses from WCTL on January 27, 2012.”
BNSF added: “The shippers in this case are challenging the reasonableness of BNSF’s Coal Loading Rule while trying to avoid any discovery obligations for the production of relevant materials that would create a record on which the Board can address their claims. The board should not allow the shippers to have it both ways. The requests that BNSF has propounded to Ameren Missouri are relevant and narrowly defined and the board should order Ameren Missouri promptly to respond to those requests.”
BNSF said the discovery requests directed at Ameren Missouri, which consist of nine interrogatories and ten requests for production, sought information relating to issues relevant to the reasonableness of the safe harbor provision in the Coal Loading Rule. BNSF said it has served similar discovery requests on all shippers and shipper organizations participating in this proceeding.
BNSF said it is seeking information from Ameren Missouri that includes coal dust remediation plans and communications with persons, including mines and suppliers of coal dust products and services, relating to Ameren Missouri’s implementation of coal dust remediation efforts.
Ameren Missouri claims in response to each request for information that the requests are “overly broad and unduly burdensome,” said BNSF. “Because Ameren Missouri has objected to producing the information under any circumstances due to its purported concems about a ‘potential enforcement action,’ it has not been possible to address Ameren Missouri’s burden concerns,” said the railroad. “BNSF does not believe that any of its discovery requests are overbroad or unduly burdensome.”