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Nov 08 2016

Transporters May Need Water Discharge Permits

November 8, 2016 (Houston)

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

 

A federal district court in Seattle, Washington has 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.

Citizen’s Suit Alleges that Transporting Coal Has Caused Illegal Discharges into Water

The court’s determination was part of a pre-trial ruling in Sierra Club v. BNSF Railway Company (“BNSF”).  In this case, brought under the citizen’s suit provisions of the CWA, the Sierra Club argues that coal from trains has entered rivers, constituting an illegal discharge.  The Sierra Club demands that BNSF be ordered: (1) to pay penalties to the United States; (2) to remediate the environmental damage from the discharges; (3) to pay Sierra Club’s legal and other litigation costs; and (4) to stop discharging into water until BNSF receives proper CWA permits.

Are Moving Trains Point Sources?

Generally, the CWA forbids “point sources” from discharging into water, except pursuant to a discharge permit.  BNSF argues that its trains are not point sources.  The court concluded that the “point source” determination depends on where the coal particles fall after leaving the train.

The Court ruled that if coal particles escape and fall onto land, even if that coal eventually enters rivers or other navigable waters, then this is not a point source discharge.  In contrast, if coal particles became airborne and fall directly into the water, then this is a point source discharge, and a violation, because BNSF did not obtain a discharge permit.

In arriving at this conclusion, the court examined prior decisions applying the definition of “point source.”  The court found most persuasive a 2002 ruling that a discharge directly into water from an aerial pesticide operation constituted a point source that required a CWA permit.

Trial Will Determine Actual Violations and Extent of Relief

The court stated that it would need to have a trial to determine the number, if any, of actual CWA violations that may have occurred.  Also, if the court finds any liability, it will then consider the extent that the Interstate Commerce Commission Termination Act may preempt any of the requested relief.

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