Saying parties to the case just want to stall this matter to death, the Tongue River Railroad Co. (TRRC) on June 25 filed a protest with the U.S. Surface Transportation Board over a request by two parties for six extra months of discovery.
The TRRC, part owned by Arch Coal (NYSE: ACI) and the BNSF Railway, is seeking board approval for a rail line that would start at two points – Arch’s planned Otter Creek strip mine and the undeveloped Montco strip mine – and extend to a BNSF interconnect at the coal-fired Colstrip power plant. This rail project would open up a vast new Powder River Basin coal reserve area to development, which has helped draw environmental opposition.
From Colstrip, these coal-loaded trains could fan out along the BNSF system to points like coal-fired power plants in the Midwest, and to planned or existing coal export terminals in Oregon, Washington and British Columbia for shipment to customers of this PRB coal around the Pacific Rim.
On June 5, the Northern Plains Resource Council (NPRC), and Clint and Wally McRae d/b/a Rocker Six Cattle Co., petitioned the board to issue a revised procedural schedule to allow for discovery in this rail construction/operation proceeding because of the expert testimony provided by (TRRC) in its reply to the comments of NPRC. Petitioners requested six months to complete discovery.
“NPRC’s belated June 5, 2013 request for a modification of the procedural schedule to allow six months for discovery apparently was triggered by the fact that TRRC had noted in an April 22, 2013 request for extension of time to file its Reply that it would be submitting a statement from an expert witness responding to expert reports submitted with the NPRC and other Comments,” the railroad said. “In other words, NPRC decided to seek discovery only after learning that TRRC would be replying to its expert reports with the statement of its own expert.” That TRRC expert was Seth Schwartz of consulting firm Energy Ventures Analysis.
NPRC failed to seek discovery or a modification of the procedural schedule until June 5, well over six months after TRRC filed its December 2012 project application and over two months after NPRC filed its comments on that application, the railroad argued. “NPRC was obviously able to respond to the Application in detail without any need for discovery. It also had more than adequate time to conduct discovery under the Board’s schedule. That fact alone calls into question NPRC’s sudden need for discovery.”
Allowing discovery at this late date in the merits phase of this proceeding, much less a six-month period for discovery, would be an inappropriate waste of resources, said the TRRC. “Indeed, while it has tied its discovery request to the fact that TRRC has offered expert testimony, NPRC offers no reason why six months of discovery would be warranted or how it intends to use this six month period. Its request for such a long period is consistent with its pattern of seeking to prolong TRRC proceedings at every opportunity.”