Source: Hood River News, June 11, 2013
By: Ben Mitchell

Last week, several environmental groups made good on their promise from earlier this spring to sue BNSF railroad and a handful of coal export companies for allegedly continuing to pollute a litany of Gorge waterways with coal they say is coming from improperly loaded railcars.

The civil suit, which names the Sierra Club as the lead plaintiff, was filed in the U.S. District Court for the Western District of Washington in Seattle on June 4 and is a follow-up to a 60-day notice of intent to sue that was sent out by the same environmental groups April 2.

It alleges that BNSF and five coal export companies have repeatedly violated the Federal Water Pollution Control Act for years (commonly referred to as the Clean Water Act) by allowing coal chunks and dust to escape uncovered railcars during transport and pollute the land and water along BNSF rail lines. Defendants are accused of not having obtained a federal permit allowing the discharges of coal pollutants into U.S. waters, which lawyers for the plaintiffs claim is a moot point since these types of discharges “are not permitted under federal law.”

The coal in question is primarily extracted from massive Powder River Basin mines in Wyoming and Montana and then shipped on BNSF railroads — one of which winds right along the Columbian River on the Washington side of the Gorge — before arriving at a British Columbian coal terminal in Vancouver for export to Asian markets. The commodity is also shipped to Centralia where it is used in a coal-fired power plant.

This past winter, Columbia Riverkeeper, an environmental watchdog group headquartered in Hood River, collected water samples from multiple areas in the Gorge to see if coal was indeed getting discharged from railcars and falling into the many rivers and lakes that border the tracks. The samples were then sent off to an environmental testing lab in Kelso, ALS Environmental, where scientists confirmed the samples tested positive for coal contamination.

Although Riverkeeper Executive Director Brett VandenHeuvel refused to release the results of the study to The Enterprise (he said the results may be made public as the lawsuit progresses), he explained in a previous interview that coal contains a plethora of toxic chemicals that are hazardous to the environment.

“Coal contains toxic pollutants like mercury, arsenic, lead and other heavy metals,” he told The Enterprise in early April. “It also contains PAH (polycyclic aromatic hydrocarbons), which is a known toxin to fish even in low levels.”

According to the lawsuit, several local rivers and lakes were listed as having been “impacted by defendants’ coal pollutant discharges,” including the Columbia River, Drano Lake, Horsethief Lake, the Klickitat River, the Little White Salmon River, Rowland Lake and the White Salmon River. Many other waterways, from the Puget Sound to the Snake River, were also listed as having been contaminated by coal shipping.

As of now, it’s estimated the Gorge sees approximately four coal trains per day, but environmental groups are pursuing legal action partly because they’re afraid that number will increase if new coal export terminals currently planned for ports in Longview and Bellingham end up moving forward.

Another terminal is planned for the Port of Morrow in Boardman, where barges would carry coal down the Columbia after it had been unloaded from the trains. Ambre Energy, the company planning to build the terminal, was issued draft permits for the project by the Oregon Department of Environmental Quality at the end of last month.

Three more terminals were originally slated for construction at three other Pacific Northwestern ports, but those have fallen through, one by one, over the past 10 months. VandenHeuvel said part of the reason the projects have been scrapped is due to negative public opinion.

“The coal terminals are struggling,” he noted. “They’re not popular. That being said, there are still three viable proposals that would send 20 coal trains a day through the Gorge.”

Opponents are concerned that an influx of rail traffic will bring with it increased diesel and noise pollution as well as a rise in congested at-grade rail crossings — regardless of the commodity the trains are hauling. Others are concerned that once the coal finally reaches Asia, the combustion of the fossil fuel there will contribute to global warming and increase air pollution.

Right now, though, VandenHeuvel says just the few coal trains that travel through the Gorge on a daily basis lose enough of their cargo that in some places along the tracks, piles of coal dust and chunks are almost half a foot deep. According to a Riverkeeper news release, by BNSF’s own estimates, each railcar coming from the Powder River Basin can lose 500 pounds of coal per trip.

Environmentalists aren’t the only ones who are concerned about the coal dust, though. BNSF has said in the past that it agrees coal dust should be contained because it can cause derailments by undermining track ballast. BNSF spokesperson Gus Melonas told The Enterprise in an email that exporters have already “committed to treat all coal shipments” in order to prevent coal dust from escaping.

“Sierra Club’s lawsuit is meritless and nothing more than a publicity stunt meant to stop the permitting of multi-commodity export terminals in the Pacific Northwest,” he said. “The Sierra Club adamantly opposes coal and will go to any lengths to eliminate it, even at the expense of all other Washington exports.”

Plaintiffs are seeking a number of judgments in the suit, asking that defendants be ordered to stop the coal discharges as well as paying environmental cleanup costs, plaintiffs’ attorney fees, and civil penalties of up to $37,500 per day for each violation of the Clean Water Act. Counsel for the plaintiffs state in the lawsuit that “each such coal discharge from each rail car and train into each separate waterway constitutes a separate violation of the CWA.” Vandenheuvel said defendants were required to file an answer to the lawsuit within 60 days. A similar lawsuit is also expected to be filed by plaintiffs in the U.S. District Court of the Eastern District of Washington.