Court refuses to dismiss coal dust lawsuit against BNSF

The U.S. District Court for the Eastern District of Washington has denied a motion to dismiss, allowing a Clean Water Act case to proceed against the BNSF Railway for alleged coal contamination of U.S. waterways.

The Sierra Club said Jan. 3 that it, Puget Soundkeeper, Columbia Riverkeeper, Spokane Riverkeeper, RE Sources for Sustainable Communities, the Natural Resources Defense Council and Friends of the Columbia Gorge had filed the lawsuit in July 2013, after finding substantial amounts of coal in and along several Washington state waterways near BNSF rail lines. A similar case is also pending before the Western District of Washington in Seattle.

The club said that according to sworn testimony by BNSF Vice President of Transportation Gregory Fox, “BNSF estimates that up to 500 pounds of coal dust may be lost from the top of each car.” The company currently sends four uncovered coal trains through the state every day, each with an average of 120 rail cars, the club added. Based on the company’s figures, BNSF’s trains lose an estimated 240,000 pounds of coal dust along its route daily, the club said.

“This victory is the first step in holding BNSF accountable for their continual pollution of our waterways,” said Cesia Kearns of the Sierra Club about the court’s Jan. 2 decision not to dismiss the lawsuit. “The court’s decision to move the case forward is a step in the right direction to stop coal—and its toxic associates, lead, arsenic, and mercury—from further poisoning our fish, our water, and our families. We take these threats seriously, and after today’s court decision we hope BNSF finally will too.”

The implications of the case are monumental, with the states of Oregon and Washington being ground zero in an environmental group fight to stop three proposed coal export terminals in those states. If built, Washington communities like Spokane would see an increase of 42 additional uncovered coal trains per day, the club said.

The Jan. 2 court decision not to dismiss this case noted that the lawsuit turns on issues of whether coal trains are a “point source” of pollutants that wind up in nearby streams through means like storm water runoff. “As noted in the pleadings, BNSF suggests that Plaintiffs are attempting to regulate storm water which is otherwise not subject to regulation under the facts of this case,” said the ruling. “However, Plaintiffs assert that their suit is brought solely under the Clean Water Act and the case law developed in support thereof. The state of the record precludes a finding in favor of BNSF on this issue at the present time.”

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.