Environmental Groups Sue Railway for Alleged Clean Water Act Violations - Case Allowed to Continue, At Least for Now

January 9, 2014 | Kristine A. Tidgren

A federal district court for the Eastern District of Washington has kept alive a lawsuit filed by seven environmental groups alleging that the BNSF Railway Company has violated the Clean Water Act (CWA). The lawsuit, along with a companion case filed in the Western District of Washington (2:13-cv-00967-JCC), appears to be the first of its kind. The plaintiff contends that while transporting coal on its tracks “adjacent to” and “in proximity to” waters of the United States, the railway discharged coal dust without a permit through holes in its cars and through the open tops of its cars.  The plaintiffs claimed that a federal discharge permit was required for such discharges, and that each and every rail car transporting the coal constitutes a “point source.”  In addition, the plaintiffs claimed that each discharge from each car on each separate day constitutes a separate CWA violation.

The CWA seeks to eliminate pollution from defined “point sources” by restricting discharges from these sources.  Under the CWA, anyone discharging a “pollutant” from a point source into the “navigable waters of the United States” must acquire a permit from the Environmental Protection Agency.  The CWA includes “rolling stock” (or mobile sources) in its definition of potential “point sources.”

The railway asked the judge to dismiss the claims that alleged the release of coal dust to land, not water, arguing that the plaintiff was not asserting that such pollution reached the water through a “confined, discrete conveyance.”  The plaintiffs asserted that they only needed to trace the pollutant back to a single, identifiable source, the coal cars.

The court agreed that, regardless of where pollution originates, “a plaintiff must prove that the pollutant reached the water through a confined, discrete conveyance.” Even so, the court denied the railway’s motion to dismiss, and granted the plaintiff an opportunity to attempt to develop facts “to show that the railway illegally introduced pollutants into navigable waters without a permit.” The court noted that the “issue appears to be whether coal from rail cars that falls onto land, rather than directly into the waters, offends the CWA.”  The court stated that it was giving the plaintiff an opportunity to develop facts that would allow their claims to either stand or fall, “based on the statutory definition of a point source discharge.”

The future success of plaintiffs’ claims will likely depend on whether the court treats the coal dust like manure discharged onto fields near a river (which does create a point source discharge if ultimately flowing into the river) or like waste rocks that eventually make their way to surface waters from waste rock pits (which are not point sources under the CWA because the water seepage is “not collected or channeled”).

Because this coal dust is not entering any waterway through any channeled process, it seems unlikely these claims will survive summary judgment.  If they are successful, however, the impact on this country’s transportation system would be monumental. We’ll be following this case closely.

Sierra Club, et al. v. BNSF Railway Co., No. 2:13-cv-00272-LRS, 2014 U.S. Dist. LEXIS 1035 (E.D. Wash. Jan. 2, 2014)