Export opponents threaten lawsuit over coal dust pollution

Posted: Apr 5, 2013

Written by

Manuel Quinones, E&E News PM
Coal train

Groups opposed to increased coal exports from the Pacific Northwest today threatened to sue BNSF Railway Co. and several coal companies over allegations of coal dust pollution from moving trains.

The Sierra Club joined conservation groups Puget Soundkeeper Alliance, Columbia Riverkeeper, RE Sources for Sustainable Communities and Friends of the Columbia Gorge in sending the companies a notice of intent to sue, accusing them of Clean Water Act violations.

Other than Berkshire Hathaway Inc.-owned BNSF, their targets include Arch Coal Inc., Peabody Energy Corp. and Ambre Energy Ltd. The groups did not specify a potential venue for the lawsuit.

"The longer the coal trains travel across the landscape, the more coal accumulates," Paul Anderson, a Bellingham, Wash., resident and coal export opponent, said during a conference call this afternoon coordinated by the groups.

The groups' activists say there is evidence of coal falling from trains and polluting the environment. They cite BNSF's own statements, which indicate that each rail car can lose about 500 pounds of coal per trip.

While several U.S. coal export proposals remain in the permitting process, trains often cross the Pacific Northwest to ports in Canada. Critics worry about the traffic increasing if the domestic export terminals are allowed to move forward.

BNSF has long said that coal dust concerns are overblown and ignore mitigation efforts (Greenwire, June 29, 2012). Experts have also noted that many railroads often carry materials that are more dangerous than coal (Greenwire, July 11, 2012).

In a statement today, the railroad called the notice of intent a "nuisance lawsuit without merit" meant to generate opposition to coal exports. It said environmentalists and other export opponents were better served by supporting BNSF's efforts before the federal Surface Transportation Board to address coal dust throughout the industry.

"BNSF has also safely hauled coal in Washington for decades," the statement said. "Yet despite the movement of so much coal over such a long period of time, we were not aware of a single coal dust complaint lodged with a state agency in the Northwest or with the railroad until the recent interest in coal export terminals."

Industry groups and unions supporting exports have also touted the opinion of well-known toxicologist Roger McClellan, who once chaired U.S. EPA's Clean Air Scientific Advisory Committee and the National Academy of Sciences toxicology committee.

"Claiming that finding a piece of coal on the ground or in the water leads to a health or environment risk violates one of the basic tenets of toxicology," he said in a statement.

"Any decision on exports of coal needs to be driven by scientific facts and analysis," he added. "It is irresponsible to release exaggerated claims and mislead the public and regulators about the impact of moving coal."

While export opponents say there is a need for more research on coal dust, they point to studies that already show a link between releases and impacts to aquatic life. They say they are conducting further studies to link coal releases to specific companies.

"Coal is a toxic pollutant, and this action today seeks to stop illegal pollution and keep our river free of dirty coal," said Brett VandenHeuvel, executive director of Columbia Riverkeeper. "The threat of coal export makes this lawsuit even timelier."

The Army Corps of Engineers, the Washington Department of Ecology and Whatcom County, Wash., this week released a "scoping" report to inform the forthcoming environmental impact statement for SSA Marine's Gateway Pacific Terminal, one of the three in the permitting process. The agencies said they received about 125,000 public comments.

The number of coal export terminals on the drawing board has already gone down. Last year RailAmerica Inc. announced it was giving up on plans to build a coal storage and export facility at the Port of Grays Harbor in Washington.

This week the Oregon International Port of Coos Bay announced the expiration of an exclusive negotiating agreement with California-based Port and Metropolitan Stevedoring Co. -- also known as Metro Ports -- for a thermal coal and biomass export facility. Opponents hope legal and economic pressure forces more companies to bail out.

"With fluctuating markets, massive opposition from communities, local businesses, health professionals and elected officials across the region, and the hundreds of millions of dollars in rail and bridge infrastructure needed to make the project viable, it is hard to imagine that anyone would want to risk getting in bed with [the] risky and desperate coal industry," said David Petrie, director of the group Coos Waterkeeper.

The Port of Coos Bay, however, has not said it will give up on coal. "We will focus on pursuing a viable maritime development project that can capitalize on the Coos Bay harbor's unique characteristics," said CEO David Koch, "[including] developable land, an extremely short transit to Pacific trade routes and an experienced maritime labor force."

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