Sierra Club sues BNSF, coal shippers

MAKING good on a promise it made in April, the Sierra Club and four other environmentalist groups have filed a lawsuit in federal court against coal rail shipper Burlington Northern Santa Fe and a half dozen coal operators for federal Clean Water Act violations related to coal dust.
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Courtesy Burlington Northern Santa Fe.

Donna Schmidt

The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, RE Sources for Sustainable Communities and Friends of the Columbia Gorge initially warned in April that it would file the suit in 60 days after it found evidence of the companies emitting coal and coal dust into Washington state waterways.

Spokane Riverkeeper and the Natural Resources Defense Council also recently sent a notice letter for the violations as well.

The defendants are BNSF as well as Peabody Energy, Global Mining Holding, Cloud Peak Energy, Arch Coal, FirstEnergy, Ambre Energy and TransAlta USA.

“BNSF and the other coal shippers had two months to figure out a way to stop polluting our waterways and communities with coal dust but they chose to do nothing to find a solution,” Sierra Club Beyond Coal campaign senior representative Cesia Kearns said.

“After years of railroad and coal companies playing the coal dust blame game, the last two months proved we can only expect more of the same from these companies.”

The suit was filed this week in US District Court for the Western District of Washington in Seattle.

Seattle has been a hotbed of opposition as of late for plans to develop coal export terminals in Washington and Oregon. In fact, Seattle Mayor Mike McGinn, a co-founder of the Leadership Alliance Against Coal comprised of more than 40 Northwest tribal and elected leaders, has actively opposed plans that could send about 18 coal trains per day through the city.

“We are concerned about the effects of coal dust on our environment and on our waterways,” McGinn said.

“It is important that the coal companies comply with our environmental laws.”

The Sierra Club said it used BNSF’s own figures from Surface Transportation Board hearings to determine that each rail car lost an average of 500 to 3500 pounds of coal dust.

Coal trains are composed of about 120 rail cars, the groups said, which results in an average of 60,000-420,000lb of coal lost per train, each trip.

The coal aboard the trains comes primarily from Powder River Basin mines. The groups argue that the coal is easily breakable, which then exposes mercury, arsenic, uranium and other toxins harmful to the health of humans and fish.

According to the outlines of the Clean Water Act, a national pollutant discharge elimination system permit, or a Section 404 dredge and fill permit, is required to dump pollutants or fill into US waters.

BNSF Railway is owned by Warren Buffett’s Berkshire Hathaway and is one of the nation’s largest coal shippers.

Sierra Club and the other environmentalists are being represented by the Law Offices of Charles M Tebbutt, PC of Eugene, Oregon, Andrea Rodgers Harris of Seattle, Washington, Jessica Yarnall Loarie of the Sierra Club Law Program and David Pettit and Morgan Wyenn of the Natural Resources Defense Council.

None of the named coal companies issued public statements on the litigation Wednesday, though BNSF confirmed in April that it had safely hauled coal in the state for decades.

“Yet, despite the movement of so much coal over such a long period of time, we were not aware of a single coal dust complaint lodged with a state agency in the Northwest or with the railroad until the recent interest in coal export terminals,” BNSF officials said.

“This is nothing more than the threat of a nuisance lawsuit without merit that is part of an ongoing campaign designed to create headlines to influence the review process for proposed export terminals.”

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