By David Gambrel

On November 5, 2010, the Surface Trans-portation Board (STB) denied Arkansas Electric Cooperative Corp.’s (AECC) petition to enjoin BNSF Railway from enforcing dust control tariff provisions until the STB resolves the Petition for Declaratory Order in the same proceeding. This decision to deny injunction was based on the failure of AECC to show it would be “irreparably harmed” in the absence of the requested relief. The STB also denied a similar request by Coal Shipper Organizations to issue a housekeeping stay, which would have stayed the effective date of coal dust items in BNSF Tariff 6041-B pending further order of the STB.

The AECC Petition—What is it About?
In May 2005, BNSF derailed two coal trains in the Powder River Basin (PRB) within a short period of time. BNSF engineers determined the derailments were probably caused by a weakened track structure, which they attributed to two conditions: plugged ballast and excessive rainfall. They decided coal dust had, over a period of several decades, plugged the gaps between ballast rock that are essential to normal drainage and integrity of the rail bed. They believed excessive rainfall had turned the ballast and coal dust combination to soft muck, which in turn had weakened the rail bed and allowed the track to give way under load.

Following these derailments BNSF began studying the nature and scope of the coal dust problem. It eventually tried to identify coal dust emission standards that would minimize the accumulation of coal dust on the roadbed. Those efforts resulted in the coal dust emission standards (BNSF Tariff 6041-B, Items 100 and 101) that BNSF has established for coal trains operating on the Joint Line and on BNSF’s Black Hills subdivision.

Since the average PRB train contains about 125 cars, an application of 15-16 gallons per car would require 1,875-2,000 gallons of chemical solution per train. It has been estimated that compliance with Items 100 and 101 could cost shippers $100 million per year. However, if one includes the cost of providing a constant source of water for the chemical solution, and of installing chemical tanks and application facilities, this cost estimate could be low by several orders of magnitude. Furthermore, it does not address the complexities of providing a constant source of water in all weather at numerous coal mines in the PRB.

To their credit many of the PRB coal mines voluntarily changed over to the required “flying nun” loading chute configuration without duress or compensation. A serious question is this, “If a mine meets the dust standards and load-out configuration standards specified by the BNSF tariff, can it still be held liable for coal flying off the coal cars?” At what point would the railroad take responsibility? What if the rail cars were of the bottom-dump type?

This is what the AECC petition is about: On October 2, 2009, AECC filed a Petition for Declaratory Order seeking to have the STB declare that BNSF Tariff 6041-B, Items 100 and 101 issued by BNSF on May 27, 2009, constitute an unreasonable rule or practice, and any refusal to provide service for non-compliance with these Tariff provisions is a violation of BNSF’s common carrier obligation. On November 30, 2009, the STB instituted a declaratory order proceeding under 49 USC 721 and 5 USC 554(e). The STB Finance Docket Number is 35305.

Progress of the Case
A public hearing on the merits of this case was held on July 29, 2010, in the STB’s hearing room in Washington, D.C. Thirty-minute presentations were scheduled for both AECC and BNSF attorneys. UPRR, which had sought intervener status, was given a 15-minute slot. Four attorneys representing shipper interests were given 10 minutes each. As of December 9, the STB had not yet published its decision in the Petition for Declaratory Order.

In a pre-emptory move to forestall implementation of the dust mitigation provisions, AECC on September 30, 2010, filed a petition to enjoin BNSF from enforcing Tariff Items 100 and 101 until the STB resolves the underlying Petition for Declaratory Order. Coal Shipper Organizations followed suit
October 1, 2010, with a Motion for Housekeeping Stay on those same provisions. The aforementioned denials of injuncti