Board allows BNSF to pursue discovery on traffic league members

The U.S. Surface Transportation Board on June 25 issued a procedural decision in a long-running case where coal shippers claim that the BNSF Railway, not the coal shippers, should be paying BNSF’s cost to mitigate dust rolling off coal cars.

This is an important issue since accumulated coal dust along the tracks was considered the cause of train derailments in May 2005 on Powder River Basin coal shipping lines that froze coal movements for a time and nearly caused several power generators to run out of coal.

The board’s new decision, issued on June 25 and arrived at on June 21, affirmed a Feb. 27 decision in this proceeding, which was a decision of a board employee related to the issuance of subpoenas and issued under authority delegated by the board. This new decision also reschedules the previously postponed technical conference for a new date of July 11.

In a prior docket, the board found that a BNSF tariff intended to limit the amount of coal dust that blows off of rail cars during transit to be an unreasonable practice when considered as a whole. The board further observed that a cost-effective safe harbor provision (i.e., specific coal dust suppression measures that would constitute compliance with the tariff) would significantly alleviate its concerns. Following BNSF’s issuance of a new tariff, which includes a “safe harbor” coal dust suppression provision, the board initiated this proceeding to consider the reasonableness of the new tariff’s safe harbor provision, but denied the request of the Western Coal Traffic League (WCTL) to reopen the prior docket.

This proceeding is in the discovery phase, and various motions to compel discovery have been filed. On Jan. 27, BNSF filed a motion to compel discovery from the member organizations of WCTL. As an alternative, BNSF also filed a petition for the issuance of subpoenas to the member organizations. The member organizations objected to both of these requests. The Feb. 27 order by the Director of the Office of Proceedings said the member organizations are subject to discovery.

The 16 members of WCTL include Ameren Energy Fuels & Services Co.; Arizona Electric Power Cooperative Inc.; Austin Energy; CLECO Corp.; CPS Energy; Entergy Services Inc.; Kansas City Power & Light Co.; Lower Colorado River Authority; and MidAmerican Energy Co.

The newly-rescheduled July 11 technical conference will address the discovery requests directed at the member organizations (with the exception of the requests directed to Ameren Energy Fuels, as BNSF has withdrawn its petition for subpoena of Ameren Energy Fuels). If BNSF and the member organizations agree to revised discovery requests before the technical conference, they may file a motion to request that the technical conference be cancelled (or that a particular entity’s participation be excused). After the technical conference (or after a request that the technical conference be cancelled or certain parties be excused), the parties can file a proposed revised procedural schedule, the board ruled.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.