The Spokane Riverkeeper and the National Resources Defense Council have filed a complaint against Burlington Northern Santa Fe Railroad Co. and a group of coal companies, claiming coal is falling from rail cars into the Spokane River at Hangman Creek, violating the Clean Water Act.
We sat down with Spokane Riverkeeper Bart Mihailovich to talk about this issue and included an excerpt in this week's paper. Here's the full interview:
INLANDER: Can you give us a rundown of what’s happening?
MIHAILOVICH: In May, the Spokane Riverkeeper and National Resources Defense Center filed a 60-day notice complaint under the Clean Water Act against the Burlington Northern Santa Fe Railroad Co. and a litany of coal companies — Peabody Coal, Arch Coal and there are others. Basically, in the Clean Water Act — the federal regulation, the federal law that is there to protect our water bodies in the US for fishable, swim-able, drinkable water. We’re alleging that coal from the trains passing through our community currently and spilling out of the coal cars and coals dust and pieces of chunk are getting in to the Spokane River at Hangman Creek, and coal is a toxic pollutant.
Under the Clean Water Act, toxic pollutants must be regulated; they must be permitted. This is an unpermitted discharge of a toxic pollutant into our water bodies and that’s what were alleging that, under the Clean Water Act, that is against the law. So how the Clean Water Act works is we file a 60-day notice letter to the companies saying here’s what we’re alleging; we have evidence; we have the law behind us; we expect a reply. Our 60 days doesn’t expire until July 9. We haven’t heard from them since May, and come July 9, if we don’t hear from them, we’re fully prepared to file a complaint, actually file the lawsuit against them.
Do you expect to hear from them?
No, we don’t expect to hear from them, only because there are other groups – the Puget Soundkeeper Alliance, Columbia Riverkeeper, North Sound Baykeeper, Sierra Club, Friends of the Colombia Gorge ‑ they filed a similar 60-day notice about 15-20 days before we did. Their 60 days has expired — they actually filed a complaint against the same companies. Our 60-day notice is essentially the exact same thing — we’re just alleging it happened here — and they didn’t hear from them, so they filed a complaint. Honestly, we expect not to hear from them, to file the complaint and in the eyes of the court, what’s going to happen eventually is once the complaint is filed, and with our complaint forthcoming, they’ll just merge all the files into one big case.
When did this become a real problem?
It’s probably been going on as long as there’s been coal trains coming through our community and that’s been a really long time. In April, we were tipped off that we should start looking here locally. I was seeing news reports from Seattle and Portland of groups going out and finding piles of coal in the water and along the waterways. I kind of looked into it about two years ago as a possibility here, but didn’t really go out and look myself. Once I saw all these pictures and images coming out of all this coal found in the waterways, [I thought] ‘Well, surely there are places in Spokane and along the Spokane River and at Hangman Creek where the trains are crossing — so I gotta go look myself.’
The first time I went out, I went to three locations where the trains cross and I found pieces of coal in the water or at the ordinary high water mark, which is important because it means if the river were to rise it would be in the water. So the first time I went out, I found coal.
From there on, I put together a little monitoring program and had volunteers going out almost every day for about a month and every time I was getting updates from them, they were finding coal. We only looked for one month in one year of a whole long history of coal trains coming through our community, so I think it’s easy to say that this is been going on for a long time.
Not to mention, BNSF themselves testified in Washington D.C. at a Surface Transportation Board hearing about five years ago. They’ve testified that they lose a significant amount of coal and coal dust and chunks of coal every time they transport coal across the country. They’ve already said they do. They used to have it on their website, and they’ve since taken it down. But they’ve already said that they do, other groups are alleging they do, and now we’ve actually gone out and found evidence and we’re saying, in fact, that they do.
What have you been doing to raise awareness about this?
We’ve been out raising awareness for this coal issue for about two and a half years. This is an instance that is happening right now, this is actual coal and a problem that’s happening right now. The fear is, and the fear that we’re trying to communicate is that if these new export facilities that are proposed on the West Coast in Washington and Oregon get approved, then we’re going to see a huge increase in coal trains coming from Montana and Wyoming through our community, so the problem we’re finding now and seeing now is only going to multiply.
What we’re doing is we’re communicating and using our outreach and education tools to say this is a problem right now, we’re finding a toxic pollutant in our waterways right now. If these export facilities are permitted and granted operational rights, we’re going to be seeing that much more coal coming through our community and its going to be that much more of a problem.
It’s kind of tying in to our other outreach on this coal issue by saying we have to look at alternatives; coal isn’t the answer; coal is a bubble; it’s not that much of an economic desire for coal as being imported. We’re tying this into our overall coal work but also trying to keep it separate in that it is an actual real problem right now.
What can the railways do to prevent losing so much coal in transport?
Right now what they allege to do — I don’t know if they actually do this or not — they allege that they spray a chemical surfactant over the tops of the train cars to prevent coal from going out and dust from blowing off. Well there are videos that show that’s not happening — we have evidence in the river to show that’s not happening — so that’s clearly not working.
They could cover it, I would think. I’m certainly not a railroad expert, but one would think that — you see trains coming through town that have potatoes or grain or whatever and those are covered, so why not cover these? I guess they have to answer that.
We want to know is how hard can it be to cover these loads and that would mitigate one problem that we have with this overall coal-exporting scheme that we’re fighting. One of the problems is toxic coal getting into our waterways, so if they cover it, that solves that one problem. That doesn’t solve all our problems, obviously, but yeah, that’d be fantastic if we could check that one off the list and like, ‘OK we’re making progress, we have one problem solved.’ So I don’t know. Covering it seems, to me, to be the logical solution.
What are coal’s supporters saying?
I haven’t heard much negative feedback to this specifically. What I am hearing is that people are saying that we’re using this one angle, this one part of this — the trains, the covering/not covering, the actual coal trains, as a hinge point to our larger fight, and to that point, that’s pretty evident, but using the Clean Water Act to prevent toxic pollution from getting into our rivers, that’s my job. My mission as the Spokane Riverkeeper is to protect our right to a clean river and part of doing that is stopping coal from getting into it.
Overall what we’re hearing is coal exporting will create jobs for the state of Washington. You could make that case in Bellingham or Longview or other communities where they’re proposing export facilities. It doesn’t create jobs for Spokane. There’s that.
But really I haven’t heard a good argument, I haven’t heard anyone out there say, ‘Coal in the river is not a problem’ or ‘Who cares if coal cars are covered or not covered — that’s not really an issue.’ I definitely haven’t heard any of that. I think I could argue that pretty well if I did.
If they do open the export facilities on the Washington and Oregon coasts, besides increased train traffic, what does that mean for the Spokane River?
Every single water body in the US has a mercury advisory on it, meaning it’s impaired by mercury pollution. Mercury predominantly comes from the burning of coal. In the state of Washington, we have one coal-fired power plant in Centralia. It’s going to be phased out around 2025. There’s a coal fired power plant in Boardman, Ore., and it too is being phased out.
What we’re seeing is a lot of burning of coal in Asia, mostly China, and the westerly wind patterns are picking up this burned coal and depositing mercury pollution in the West Coast of the U.S. So we’re seeing ocean acidification becoming a major issue, we’re seeing mercury pollution right here in Spokane. If we ship coal to China, to India, to other parts of Asia, if we increase that and burn more of it, it’s going to cause more mercury pollution worldwide and here specifically. Then we have the impacts of global warming and climate change because of the burning of coal, which impacts our snow pack, our predictable in stream flow, our water in the river.
When you start to break down all these bigger global issues and how they’re impacting us locally, that’s the litany of our overall global views of this. But the actual stopping of this coal getting out by covering the trains, that’s just one part of it.
What exactly does the Clean Water Act protect?
The Clean Water Act protects all navigable waterways in the U.S., so every river, stream, lake, ocean that has been deemed to be navigable, meaning that you can get a boat on it — it protects our right to clean water.
The Clean Water Act came out in 1972 and it said that every single U.S. citizen has the right to go down to the river and swim and not get sick; to drink the water and not get sick; to catch a fish out of that river and eat that fish and not get sick. It is the environmental law that has been made to protect our right to clean water.
When you hear of the city of Spokane’s wastewater treatment facility, it has to get a permit and that permit is granted under a program that was set up via the Clean Water Act. If there is a building that gets torn down in town and they hose down the destruction and that goes down the storm drain, which eventually goes to the river, those need permits.
The Clean Water Act sets all the laws and regulations for any activity that would impact our river, so this is about as black and white as it gets. It’s there to prevent pollution from getting into our rivers and as a river keeper and as a member of the overall International Water Keeper Alliance, the Clean Water Act has been the most important legal tool, our most important advocacy tool. It’s just the tool we use predominantly to do the job that we do. It’s worked since 1972 it’s been a really effective law. We’ve used it several times locally to stop really big pollution from happening in the Spokane River.
Are you teaming up with anybody locally to help fight this issue?
There is a local Sierra Club chapter, then there’s the national Sierra Club that has a staff person based locally. The Sierra Club is a co-pliant in this case and over the last couple years now has been involved. We are a member of the Power Past Coal coalition that’s about 200 organizations and individuals who have expressed interest in working against this issue. We work closely with the Spokane Tribe on this. Spokane City Council President Ben Stuckart has been an ally with us on this — he’s a member of a smaller alliance of elected officials who’ve teamed up together to look for a way to stop coal exporting, so we’re kind of tied in with the elected officials that way.