By Camilla Mortensen Eugene Weekly
April 4, 2013
Bad news for coal is good news for clean energy advocates and conservationists: Not only has the Port of Coos Bay’s exclusive negotiating agreement with the last of the companies trying to export coal ended, a Eugene attorney has also filed a notice of intent to sue coal companies and the Burlington Northern Santa Fe (BNSF) Railway for violating the Clean Water Act by emitting coal into waterways in Washington.
While the Coos Bay coal proposal that would have sent coal trains through Eugene seems to be dead in the water, the Northwest still faces four more coal export proposals. And Bob Ferris of Cascadia Wildlands, one of the local groups that fought the Coos Bay proposal, says, “Another set of partners might come in or some worse proposal, we have to be constantly vigilant.”
Charlie Tebbutt, who filed the intent to sue on behalf of the Sierra Club, Columbia Riverkeeper and three other groups, says that “fundamentally, every rail shipment through the state of Washington and throughout the country discharges coal in significant amounts, and it has to stop.” He adds, “It’s a clear violation of the Clean Water Act and pollutes rivers and streams.”
The conservation groups say that “by BNSF’s own figures, the four daily coal trains traveling through Washington heading to Canada or to the state’s last remaining coal plant combine to lose a staggering 120 tons of coal dust per day.” And they add that the soft, crumbly Powder River Basin coal from Montana and Wyoming contains “mercury, arsenic, uranium and hundreds of other heavy metal toxins harmful to fish and human health.”
Laura Hennessey of the Alliance for Northwest Jobs and Exports sent out a press release in response to the suit, calling it a “nuisance” and citing a BNSF statement saying it “is committed to preventing coal dust from escaping while in transit.”
Tebbutt says that railroads have pointed the finger at the coal companies and vice-versa, and “it is up to the industry to figure out the problem.” He says that not only do the coal dust, lumps of coal and petcoke come off the tops of the largely uncovered train cars, it also drips with moisture off the bottom of the cars.
BNSF has estimated about 500 pounds of coal blow off a single open car, according to the notice of intent to sue the railroad and the coal companies. Tebbutt says that under the Clean Water Act, each rail car is a point source of pollution and “each discharge from each car to each waterway constitutes a separate violation.” The intent to sue says at the end of the 60-day period the groups will file a citizen suit “for the applicable statutory maximum for each violation, presently $37,500 per day for each violation.”
Tebbutt is not new to coal pollution suits; along with Megan Anderson of the Western Environmental Law Center, he represented the Sierra Club and reached a multimillion-dollar landmark settlement with a coal mine and power plant in New Mexico. The suit sought to stop ground and surface water contamination from toxic coal ash and called for spending about $8 million on restoring the watershed and controlling pollution.
Tebbutt says, “The trains have been discharging for years, and state and federal agencies have ignored the problem so citizens are taking action to stop it.”