Yesterday, Spokane Riverkeeper and the Natural Resources Defense Council (NRDC) joined Sierra Club and its partners in filing a complaint against Burlington Northern Santa Fe Railway Company (BNSF) in the U.S District Court for the Eastern District of Washington for violations of the Clean Water Act in the eastern part of the state. An earlier federal lawsuit, filed by the same groups in western Washington for violations in the western part of the state, is also underway.
“We have found coal in the Spokane River and its tributary Hangman Creek," said Bart Mihailovich, director of Spokane Riverkeeper. "That is toxic pollution in our waterways, and that is a major concern to Spokane Riverkeeper and all of those who have a right to a swimmable and fishable Spokane River.”
“Coal is dangerous for our health and wildlife whether it is dumped into our air or into our water,” said Morgan Wyenn, attorney for NRDC. “We’re talking about pieces of coal ranging from fine dust to large chunks falling out of these open cars every day, spoiling waters of the Northwest and violating our federal Clean Water Act. BNSF must be held accountable for this preventable pollution.”
According to BNSF testimony at hearings before the Surface Transportation Board, each rail car loses an average of 500–3,500 pounds of coal dust. Coal trains are composed of approximately 120 rail cars, resulting in an average of 60,000–420,000 lbs. of coal lost per train each trip. A massive increase in rail traffic and longer trains are expected in the future should new hotly contested coal export terminals be built in Washington and Oregon.
If ports are developed, Spokane would be the choke point for all of the predicted 42 trains heading to and from the three proposed coal export facilities in Washington and Oregon each day. Spokane Riverkeeper believes that finding toxic coal in local waterways along rail communities in the state of Washington demonstrates clearly that environmental impacts from exporting coal exist beyond just the proposed exporting sites.
“The Clean Water Act is in place exactly for issues like this, and it’s up to us to hold those accountable who infringe upon our collective right to clean water in this country,” added Mihailovich.
As more local residents and elected leaders connect the dots on the broad global and regional implications of moving forward with the Northwest coal export proposals, concerns climb about coal contamination of the region’s waters.
“Spokane River is tributary to the Columbia River," said Brett VandenHeuvel, executive director of Columbia Riverkeeper. "What happens to the water in the Spokane damages our water in communities all along the Columbia River.”
“With only a handful of coal trains moving through Washington everyday, the alarming rate that we’re already finding coal polluting our waters is sending a clear signal of the damage to come,” VandenHeuvel concluded.
According to BNSF, approximately 90 percent of its annual coal shipments are from coal mines in the Powder River Basin (PRB) located in Wyoming and Montana. PRB coal breaks apart easily and contains mercury, arsenic, uranium and hundreds of other toxins harmful to fish and human health. Additionally, PRB coal dust falls onto train tracks, contributing to track destabilization and dangerous train derailments.
In this filing, the defendant groups have been narrowed to focus on BNSF while the coal industry continues to point fingers about who is responsible for the coal pollution. The original Clean Water Act suit was filed in Washington’s Western District on June 5 by The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, RE Sources for Sustainable Communities and Friends of the Columbia Gorge. With the addition of Spokane Riverkeeper and NRDC, the groups point to a clear pattern of coal dust water pollution in all corners of the state of Washington.
The plaintiffs are represented by the Law Offices of Charles M. Tebbutt, P.C. of Eugene, OR, Andrea Rodgers Harris of Seattle, WA, Jessica Yarnall Loarie of the Sierra Club Law Program, and David Pettit and Morgan Wyenn of the Natural Resources Defense Council.
After a multi-year legal challenge, Puget Soundkeeper Alliance (Soundkeeper) has entered one of the country’s largest Clean Water Act settlements involving the discharge of stormwater pollution. As part of a settlement of Federal Clean Water Act claims, BNSF Railway Company (BNSF) agreed to pay $1.5 million to a third-party organization to fund Puget Sound restoration and pollution mitigation projects. Soundkeeper had earlier obtained a court ruling establishing that BNSF had illegally discharged industrial stormwater from a Seattle facility to Puget Sound. The case is pending before the Honorable John Coughenour in the Federal Court for the Western District of Washington, located in Seattle.
“Stormwater pollution is killing Puget Sound. The size of this settlement is one of the largest ever in a citizen enforcement action involving stormwater discharges. It sends a strong message that stormwater pollution is an important issue and has serious consequences for polluters,” said Chris Wilke, Puget Soundkeeper and executive director at Puget Soundkeeper Alliance.
As described in the proposed Consent Decree submitted Dec. 21 to a Washington federal judge, BNSF has implemented numerous measures since the lawsuit was filed to help ensure compliance with the Clean Water Act in future discharges to Elliott Bay. By law, the U.S. Department of Justice and the U.S. Environmental Protection Agency have 45 days to review the agreement before it may be signed into legal effect as an order of the court.
The case involves stormwater discharges from BNSF’s Balmer Yard facility, located between Seattle’s Queen Anne and Magnolia neighborhoods. The facility discharges industrial stormwater to Elliott Bay near the public beach at Smith Cove Park. The facility is operated by Texas-based BNSF, a subsidiary of Berkshire Hathaway.
Industrial stormwater can contain toxic levels of heavy metals, such as copper, zinc and lead, as well as oils and suspended solids. Elliott Bay is identified by state and federal agencies as providing critical habitat for threatened Chinook salmon and is home or a migration route to other species including coho salmon, sixgill shark, octopus, lingcod, marbled murrelet, harbor seals, harbor porpoise and orca whales. Polluted stormwater runoff is the number-one source of toxic loading in the Puget Sound, according to a recent study by the Department of Ecology. Heavy metals, especially copper, are particularly dangerous to the survival of salmon species, which are highly valued culturally and economically by the people of the Puget Sound Region.
Soundkeeper filed the suit against BNSF in July of 2009 under the Clean Water Act’s “citizen suit” provision, which authorizes concerned citizens to step in and enforce its provisions to protect public waterways when public agencies fail to do so. Soundkeeper alleged that BNSF was in violation of its Clean Water Act permit regulating discharges of industrial stormwater from the Balmer Yard facility. Soundkeeper amended the complaint in August 2010 to add claims that BNSF’s unpermitted discharges of industrial stormwater from the Balmer Yard violated the Clean Water Act.
“We identified the Balmer Yard because BNSF had consistently reported concentrations of heavy metals in its discharges far exceeding the thresholds set by its permit,” said Wilke of Soundkeeper. “These pollutant levels were particularly concerning because a facility as large as the Balmer Yard can discharge a significant amount of industrial stormwater to Puget Sound.” Wilke said this is an important step in the long process to clean up toxic stormwater discharges to the Puget Sound, which is identified as a high priority in the recovery of the Puget Sound by state and federal agencies.
Federal Judge John Coughenour entered an order in August of 2011 finding BNSF liable for extensive violations of the Clean Water Act, including for discharging industrial stormwater without a permit and for failing to implement required stormwater pollution control measures.
Soundkeeper was represented in the lawsuit by the Seattle law firm of Smith & Lowney, which focuses on environmental and public interest law. “This settlement shows that the Clean Water Act is a potent tool for holding industry accountable for illegal stormwater pollution. We hope the size of this settlement encourages businesses and governments to tackle their stormwater problems,” said Brian Knutsen, the lead attorney on the case.
The Consent Decree filed Dec. 21 contains provisions for recovering damages to the environment and ensuring compliance with the Clean Water Act at the facility. The Consent Decree recognizes that since the case was filed, BNSF has taken significant actions to improve its management of stormwater on its site, including developing a stormwater pollution prevention plan, coating roofs to minimize zinc pollution, stabilizing banks to minimize soil erosion, and taking other actions to prevent and control spills and minimize rain contact with sources of contamination.
BNSF must pay a total of $1.5 million to a new Puget Sound Stewardship and Mitigation Fund established by the Rose Foundation, which will award grants for environmental restoration projects in Puget Sound. “This new fund will help support important work to protect the waters of Puget Sound,” said Rose Foundation director Tim Little. “The money will be put to good use in protecting water quality and rebuilding habitat for endangered salmon for years to come.”
The federal court will retain jurisdiction over the case to enforce the requirements of the consent decree, which includes the requirement that BNSF comply with the terms of its stormwater discharge permit.
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The mission of Puget Soundkeeper Alliance is to protect and preserve Puget Sound through monitoring, engagement, enforcement and partnership. Puget Soundkeeper is a licensed member of the 200-member international Waterkeeper Alliance, which fights to protect waterways around the world. Puget Soundkeeper Alliance does not receive any money from this settlement, despite the intense involvement of its staff and several board members over the years of litigation.
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