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SEATTLE—BNSF Railway Co. has agreed to pay $2.5 million to settle a Clean Water Act lawsuit brought by Puget Soundkeeper Alliance alleging the railroad was discharging industrial stormwater containing toxic metals from an urban rail yard directly into the Puget Sound in Washington state (Puget Soundkeeper Alliance v. BNSF, W.D. Wash., No. C09-1087, 12/21/11).
Under terms of the proposed consent decree filed Dec. 21 in the U.S. District Court for the Western District of Washington, BNSF will pay $1.5 million into a grant fund for Puget Sound environmental restoration administered by The Rose Foundation for Communities & the Environment, which is based in Oakland, Calif.
The company also will pay $1 million to cover the plaintiff's litigation costs, including attorney fees.
The proposed consent decree, which is subject to court approval, follows an Aug. 19 decision by Judge John C. Coughenour, who in August ruled that BNSF had discharged industrial stormwater from an urban rail yard in Seattle into Puget Sound in violation of the Clean Water Act.
The judge also had granted Puget Soundkeeper Alliance's motion for summary judgment, finding that BNSF had violated its National Pollutant Discharge Elimination System permit 19 times.
Numerous species listed under the Endangered Species Act—including orca, also known as killer whales—live or migrate through Seattle's Elliott Bay, a part of Puget Sound. Chinook salmon rely on the waters as well.
BNSF reached the settlement “without admission by the Defendant of the facts or violations alleged,” according to the proposed consent decree.
Soundkeeper Alliance attorney Brian A. Knutsen, of Smith & Lowney in Seattle, told BNA Dec. 27 that stormwater from the rail yard exceeded action levels for zinc, copper, lead, and turbidity. The levels of zinc and turbidity were high enough that they triggered a permit requirement that BNSF install stormwater treatment, which it failed to do, Knutsen said.
The state Department of Ecology recently denied BNSF's request for a waiver that would allow it to forgo installing stormwater treatment facilities; BNSF is appealing that decision to the Washington Pollution Control Hearings Board. However, the parties have agreed not to appeal any decision the board makes on the matter to a higher tribunal, according to the proposed consent decree.
Knutsen said that BNSF terminated its discharge permit a few months after the lawsuit was filed in July 2009 and moved for summary judgment. According to the proposed settlement, BNSF contended that it mistakenly had believed that stormwater from its vehicle maintenance shop was discharged to the sanitary sewer rather than the surface waters of Puget Sound.
BNSF Media Relations Director Suann Lundsberg told BNA Dec. 27: “This was a technical and paperwork issue concerning the Clean Water Act. Our experts have indicated that BNSF did not cause harm to the Puget Sound; however, we did cancel our permit in error. Once we discovered this oversight, we worked with [the] Department of Ecology to correct the error, and have agreed with Puget Soundkeeper Alliance to fund $1.5 million for environmental restoration projects in the Puget Sound.”
Knutsen said, however: “I certainly don't find the failure to ... install treatment when the levels of contaminants continue to exceed threshold to be a paperwork violation. Those are findings Judge Coughenour has already made.”
The proposed decree contains provisions requiring BNSF to comply fully with any NPDES permit issued for the site and to send to Puget Soundkeeper Alliance all changes to its stormwater pollution prevention plan within 30 days.
It notes that since the Soundkeeper filed its complaint, BNSF has undertaken several steps to control stormwater pollution, including:
The proposed consent decree in Puget Soundkeeper Alliance v. BNSF is available at http://op.bna.com/env.nsf/r?Open=smiy-8pxug3.
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