Air/Water Interface and Jurisdiction
|Can windblown pollutants, such as coal dust, that land in Waters of the United States constitute point-source discharges of pollutants requiring a National Pollutant Discharge Eliminated System (NPDES) permit under the Clean Water Act (CWA)? This question was recently answered in the affirmative by a United States District Court in Sierra Club v. BNSF Railway Co., C.A. No. C13-967-JCC, 2016 LEXIS 147786 (W.D. Wa. Oct. 25, 2016). http://www.leagle.com/decision/In%20FDCO%2020161026H72/
Sierra%20Club%20v.%20BNSF%20Railway%20Company The court held on summary judgment motions that coal dust from BNSF trains traveling adjacent to rivers, and over rivers on bridges, would be point source discharges of pollutants, if the plaintiffs could prove that the coal dust landed directly into Waters of the United States. The District Court concluded that the “discharges” from coal trains that land directly into rivers without hitting the ground first are analogous to the point source discharges from the aerial spraying of pesticides requiring a NPDES permit in League of Wilderness Defendants/Blue Mts. Biodiversity Program v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). With regard to coal dust that hits the ground before being washed into a river or stream, the District Court agreed with BNSF “that under these facts, coal discharges to land and from land to water are not point source discharges as defined in the CWA.” Sierra Club at *31.
The District Court in Sierra Club v. BNSF, also took pains to distinguish two other air deposition cases where the courts did not find point source discharges. “Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 224-25 (2d Cir. 2009) (holding that lead dust in berm was not point source discharge because there was no discernible conveyance of the lead dust from the berm to water); Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 940 F.Supp.2d 1005, 1024 (D. Alaska 2013), rev'd on different grounds, 765 F.3d 1169 (9th Cir. 2014).” Id. at *30-31. The Sierra Club court distinguished these cases because there was “no discernable conveyance” where lead dust was blown from a berm to nearby wetlands, Cordiano, or where coal dust was blown a half mile from coal piles to streams. Alaska Cmty. Action. Proximity and a defined discrete source of the pollution were critical to the District Court’s holding that the BNSF trains were point sources under the CWA.
|The Court’s 2013 Term and environmental law: A whimper, not a bang
Trends September/October 2013
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