Yesterday, a group of environmental organizations, including the Sierra Club, Puget Soundkeeper, Columbia Riverkeeper and others, sent a 60-day notice letter to Burlington Northern, Peabody Energy, Arch Coal, Ambre Energy, Cloud Peak Energy, Global Mining Holding Co., FirstEnergy Corporation, and TransAlta USA, alleging violations of the Clean Water Act related to alleged discharges of coal and coal dust from trains to waters in Washington State. This letter starts the clock on the waiting period for the environmental groups to file suit under the Clean Water Act, and I’d anticipate that such a suit will be filed by early June. The gist of the notice is that a National Pollutant Discharge Elimination System (“NPDES”) permit is required for the transport of coal because of the discharge of coal and coal dust from the trains to waterways. The 60-day notice also alleges that the discharged coal constitutes “fill” requiring a CWA Section 404 permit.
These threats of lawsuits under the Clean Water Act are probably the most-used tool by environmental groups, and, in Washington, comprise the vast majority of environmental litigation in Federal courts. The suits come in all shapes and sizes–but usually result in settlements that consist of three parts: (1) payment of attorney fees; (2) measures to address the alleged violations set forth in a settlement agreement; and (3) payment to an environmental group to implement some sort of a project that helps the environment. The roster of notifying parties is broader than the usual 60-day notice in Washington, and the number of attorneys representing these parties is larger as well. Given the controversial nature of coal exports right now, I don’t see this notice being settled within the 60-day window (or the allegations–if true–being corrected within that window).
If this is litigated, the 60 day notice raises some interesting legal questions. As an example, the 60-day notice names both the owners of the coal and BNSF as the operator of the rail lines. I suppose this depends on the contractual arrangement between the coal owners and BNSF, but I’m not sure that the coal companies are properly considered the entities that would–if the allegation prove correct–be required to obtain an NPDES permit. Civil penalties could also be an interesting question. The presence of the coal as fill into waterways would constitute continuing violations of the Clean Water Act, with penalties up to $37,500 per day for each day the fill remains in the waters. The 60-Day Notice lists more than 70 waters impacted by the alleged discharges–and I think how those waters are treated by a court in calculating civil penalties may be a complex exercise, because some of the “waters” are parts of Puget Sound, and some of the other waters are tributaries to larger rivers. Where the lines are drawn for penalty calculations seems like fodder for litigation.
This is the most pointed attempt by those that oppose coal exports to shut the coal off at the source, and it in some ways represents an application of an old “tool” to a new issue–namely climate change. It will be interesting to observe this case and how it proceeds.