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Club v. BNSF Railway Co.

United States District Court, W.D. Washington, Seattle

May 2, 2017

SIERRA CLUB, et al., Plaintiffs,
v.
BNSF RAILWAY COMPANY, Defendant.

          CONSENT DECREE

          John C. Coughenour UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the parties' motion to enter their proposed consent decree (Dkt. No. 374). The United States has no objection to entry of the proposed consent decree. (Dkt. No. 383.) Having thoroughly considered the motion and the relevant record, the Court hereby GRANTS the motion and ENTERS the following consent decree:

         WHEREAS, Plaintiffs Sierra Club, Puget Soundkeeper Alliance, RE Sources for Sustainable Communities, Columbia Riverkeeper, Friends of the Columbia Gorge, Spokane Riverkeeper, and Natural Resources Defense Council (collectively, Plaintiffs) filed a complaint in this Court seeking civil penalties, as well as declaratory and injunctive relief, against Defendant BNSF Railway Company (BNSF and collectively with Plaintiffs, the Parties) and others on June 4, 2013, alleging violations of the Clean Water Act, 33 U.S.C. § 1251, et seq., (the CWA or the Act);

         WHEREAS, Plaintiffs filed a separate complaint in the United States District Court for the Eastern District of Washington similarly alleging that BNSF and others had violated the CWA (assigned Civil No. 2:13-cv-00272 (E.D. Wash.) and hereafter referred to as the Eastern District Action);

         WHEREAS, the Eastern District Action was transferred to this Court and assigned Civil No. 2:14-cv-00660, after which it was consolidated with the above-captioned civil action (Dkt. No. 84) (the Litigation);

         WHEREAS, subsequent to consolidation, on May 6, 2015, Plaintiffs filed their third amended complaint (Dkt. No. 113) naming only BNSF as a Defendant;

         WHEREAS, prior to filing their initial complaint, Plaintiffs sent to BNSF and others Notices of Intent to Sue dated April 2, 2013, and May 9, 2013, in which they stated their intent to assert claims for alleged violations of CWA sections 301 and 404, 33 U.S.C. §§ 1311, 1344, and the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, et seq., and further asserted that “[t]he pollutants that the Dischargers have discharged, are discharging, and will continue to discharge include, but are not limited to, coal, coal chunks, coal dust, metabolites or related byproducts of coal, surfactants applied to the coal, coal chunks and coal dust, petcoke, petcoke chunks, petcoke dust, and suppressants”;

         WHEREAS, CWA Section 301(a), 33 U.S.C. § 1311(a), prohibits the unpermitted discharge of any pollutant to waters of the United States;

         WHEREAS, Plaintiffs brought their action against BNSF for alleged CWA violations pursuant to Section 505 of the Act, 33 U.S.C. § 1365;

         WHEREAS, BNSF is a Class I railroad operating in 28 states. BNSF transports freight, including a number of commodities, for a wide range of customers. As a Class I railroad, BNSF operates as a common carrier subject to the jurisdiction of the Surface Transportation Board (STB). BNSF's status as a common carrier requires the railroad to provide transportation of goods on reasonable request;

         WHEREAS, coal and petroleum coke (petcoke) are among the commodities that BNSF transports for its customers. BNSF transports coal, petcoke, and other commodities in open-top railcars in the State of Washington and several other states;

         WHEREAS, Paragraph 48 of Plaintiffs' third amended complaint alleges that “[e]ach and every coal train and each and every rail car carrying coal discharges coal pollutants to waters of the United States when traveling adjacent to, over, and in proximity to waters of the United States.” Paragraph 3 of the third amended complaint defines “coal pollutants” to include “coal, coal chunks, coal dust, metabolites or related byproducts of coal, and other substances or materials added to the coal including, but not limited to, surfactants and suppressants, and petroleum coke.” The third amended complaint further alleges that BNSF did not obtain any permit to discharge any pollutants from its railcars; '

         WHEREAS, BNSF asserted defenses to the allegations contained in the third amended complaint, expressly denies Plaintiffs' allegations in their entirety, and admits no liability by entering this Consent Decree;

         WHEREAS, the Parties recognize that this Consent Decree is a settlement of a contested matter;

         WHEREAS, the objective of the Parties in entering this Consent Decree is to resolve the Litigation; and

         WHEREAS, the Parties acknowledge that this Consent Decree has been negotiated by the Parties in good faith and will avoid further litigation, and the Court, in entering this Consent Decree, finds that this Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, without the admission of any issue of fact or law except as provided in Section I, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

         I. GENERAL PROVISIONS

         1. Jurisdiction and Venue. This Court has jurisdiction over the subject matter of this action and the Parties pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a). Venue is proper in this judicial district pursuant to section 505(c) of the Act, 33 U.S.C. § 1365(c), because the complaint alleges that discharges in violation of the Act occurred in this judicial district. BNSF does not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.

         2. Retention of Jurisdiction. This Court shall retain jurisdiction for the purposes of issuing such further orders and directions as may be necessary and appropriate for the implementation or modification of this Consent Decree, enforcing compliance with, or resolving disputes regarding the provisions of this Consent Decree.

         3. Reservation of Rights. The Parties reserve the right to enforce the terms of this Consent Decree and take any action authorized by federal or state law not inconsistent with this Consent Decree.

         4. Parties Bound. This Consent Decree shall be binding upon Plaintiffs, BNSF, and their respective officers, agents, servants, employees, successors, and assigns.

         5. Counterparts. This Consent Decree may be signed in counterparts, and such counterpart signature pages ...


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