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Judge: environmental groups’ lawsuit over Eastern Washington coal trains can proceed

Fri., Jan. 3, 2014, 12:14 p.m.

A federal judge in Eastern Washington ruled that a lawsuit filed by environmental groups against BNSF Railway over uncovered coal trains can proceed.

In a ruling Thursday, Judge Lonny Suko of U.S. District Court denied a request by BNSF to dismiss the lawsuit that was filed in July.

The environmental groups allege that BNSF violates the Clean Water Act by transporting coal in open-top railcars. That coal ends up in waterways “through holes in the bottoms and sides of the rail cars and by spillage or ejection from the open tops of the rail cars…,” according to court documents.

BNSF’s motion to dismiss the lawsuit argued, in part, that coal discharged “adjacent to, over, and in proximity to” water is outside the scope of the Clean Water Act.

The original lawsuit was filed by the Spokane Riverkeeper and the Sierra Club, among other nonprofit groups.

Suko, in his ruling, discussed other cases that hinged on the definition of a “point source discharge” of pollution, and said he’d allow the environmental groups to “develop facts that will allow their claim(s) to either stand or fall.”

But he noted, “As part of their case, plaintiffs will need to show that BNSF’s railway illegally introduced pollutants into navigable waters without a permit.”

Coal transport represents about $4.8 billion in freight revenue for BNSF annually, with most of the coal originating in Wyoming and Montana’s Powder River Basin, according to the original lawsuit. The number of coal trains in the Northwest would increase dramatically if three proposed coal export terminals are built in Oregon and Washington.

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