Nov 28 2016

November 28, 2016 (Houston)

By James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

The Alert of two weeks ago discussed the October 25, 2016 ruling by a federal district court in Seattle, Washington, which determined that coal trains need Clean Water Act (“CWA”) discharge permits if coal dust from them becomes airborne and falls into rivers or other navigable waters during transport.  On November 15, less than a month after this pretrial ruling, BNSF Railway Company (“BNSF”) issued an announcement that the parties had reached a tentative settlement in the case.

According to BNSF’s announcement, settlement terms include:

1. BNSF will conduct a two-year study into methods for covering coal trains;
2. BNSF will spend $1 million on conservation or restoration projects in Washington; and
3. BNSF will remediate certain areas that it and the other parties agree on, based on the expected language in a final court approved consent decree.

No Appellate Court Review of the Point Source Issue

Due to this settlement, the district court’s ruling that trains could be “point sources” under the CWA will not be reviewed by the US Court of Appeals for the 9th Circuit.   The district court had determined that if coal particles become airborne and fall directly into the water, then these are point source discharges, and violations if not done under a CWA discharge permit.  BNSF disputed this ruling, but agreed to settle shortly after the district court issued it.

Even with this settlement, the district court’s ruling as to what constitutes a “point source” will remain.  Other courts might find this ruling persuasive in similar cases, although other courts are generally not obliged to follow district court opinions.

For a copy of BNSF’s announcement regarding the proposed settlement click here.