Surface Transportation Board Authorizes Tariff Rules on Coal Dust but Strikes Down Specific BNSF tariff
On March 3, 2011, the Surface Transportation Board (“STB” or “Board”) issued a decision which authorizes railroads to impose reasonable requirements upon coal shippers to mitigate coal dust emissions. Although the agency struck down the specific tariff item of BNSF Railway Company (“BNSF”) applicable to coal traffic moving from Wyoming’s Powder River Basin (“PRB”), the Board determined that coal dust is a “pernicious ballast foulant.” Thus, it decided that railroads could properly seek to mitigate harm to track integrity by imposing dust suppression rules on coal customers. BNSF’s tariff 6041-B, Items 100 and 101 were found to be an unreasonable practice because they would potentially penalize a shipper, even if the shipper complied with the requirements, using available dust emission controls such as profiling and chemical surfactants. The STB expressed its optimism, going forward, that shippers and railroads would work together to solve problems arising from coal dust emissions.
The Board determined that coal dust is a harmful contaminant of ballast, due in part to Federal Railroad Administration research which concluded that coal dust impacts track stability in the PRB. Coal dust travels from rail cars and blocks drainage pathways, reducing ballast’s drainage capabilities; this weakens the load carrying capacity of the ballast. The track may then become prone to shift when a train passes. Further, the Board determined that BNSF had a right to address coal dust loss from open-top rail cars in support of other containment efforts, including track inspection, undercutting, shoulder ballast cleaning, and mechanical removing. BNSF also may require shippers to take “reasonable measures” to address the problem of coal dust dispersion on the lines. The STB did not reach a finding on the cause of two derailments in May of 2005, which substantially reduced capacity on the Joint Line.
The Board determined that even though coal dust is harmful to the operational integrity of railroad lines, it still had to determine if BNSF’s proposed tariff amounted to unreasonable loading requirement. BNSF’s tariff required that shippers: (1) meet quantitative specifications for coal dust emission measured by rail side monitoring devices; and (2) load coal in a profile using a modified loading chute to limit coal dust emissions. Despite the need to address coal dust, the Board found BNSF’s standards under the tariff unreasonable, as BNSF provided a coal dust emission requirement that a shipper may not be able to meet, even while employing available methods of coal dust suppression. Further, under the BNSF tariff, shippers did not have a method of compliance once the coal is on the railroad line, and do not know what penalties or consequences were applicable. Additionally, the Board found BNSF’s trackside emissions monitoring system unreliable, as it led to variable and inconsistent results, even when two “E-Samplers” were placed next to one another. Shippers expressed concern about their inability to test equipment and examine technical data before facing penalties. The uncertainty of the tariff provisions coupled with the equipment and monitoring system, led the Board to conclude the coal ash emissions procedures under BNSF’s tariff were an unreasonable practice.
In its Decision, the Board expressed a desire for railroads and customers to work together on solutions to deal with “commodity spillage” during transport. The Board concluded it is “inefficient” for railroads to move cars in a manner which “routinely results in the release of coal dust during transport.”
A copy of the Board’s Order is available here.
A copy of the Board’s Press Release is available here.